DEPARTMENT OF EDUCATION

OFFICE OF THE INSPECTOR GENERAL

INTERNAL AUDIT

Department Rulemaking

Final Report

Management Review
07/08-01 MR

March 25, 2008

Background
This review was identified in the Office of Inspector General (OIG) annual risk assessment and included in the approved annual audit plan.  It was performed in support of the Florida Department of Education’s (Department) goals of highest student achievement, seamless articulation and maximum access, and quality efficient services.

The State Board of Education (SBE) is the agency head of the Department and focuses on high-level policy decisions. The Board has authority to adopt rules pursuant to Section 120.536(1) and 120.54, Florida Statutes, (F.S.), and to implement the provisions of law conferring duties upon it for the improvement of the state system of K-20 public education except for the State University System.  Each Department program office is responsible for writing and implementing the rules pertaining to their program area, and for undertaking a continuous review process to ensure that the rules are a correct statement of the agency’s policy and not obsolete, confusing, or unnecessary. The Department’s Agency Clerk oversees the rulemaking activities and coordinates SBE scheduling and required publications. The Office of General Counsel works in tandem with the Agency Clerk and also advises the Commissioner and SBE on rulemaking proceedings. The General Counsel’s Office reviews rules before they are adopted and also reviews other agency documents, such as technical assistance papers, to ensure compliance with state and federal law, including the Administrative Procedure Act.

Federal laws that implement state education grant programs, such as No Child Left Behind (NCLB) and the Individuals with Disabilities Education Improvement Act (IDEA), require that the Department submit a state plan that shows how the Department will comply with the terms of the grant program.  The Department ensures it has the authority to make the assurances it provides to the federal government.  This authority might come directly from a state statute or indirectly from an agency rule adopted pursuant to a grant of authority from the Legislature. 

Objectives and Scope
This management review focused on evaluating the Department’s effectiveness in rulemaking. The objectives of this review were to determine if the Department: 1) has developed rules as required by statutes; 2) has caused implementing statutes or rules to be developed when required by federal laws; and 3) has published documents that impose non-rule policy that should be adopted as a rule. The scope of this review included the 2007 Florida Statutes, 2007 Florida Administrative Code, and Technical Assistance Papers on Major Areas of Interest and No Child Left Behind published in 2006 and 2007. Additionally, we reviewed the IDEA to determine if rules were adopted as required by federal laws. 

Methodology
To achieve the objectives, the auditor: 
1)	Researched and reviewed federal and state statutes and regulations;  
2)	Interviewed appropriate Department staff; and  
3)	Reviewed selected programs to determine whether the Department has adopted rules as required by federal and state regulations.  

Standards
Our review was conducted in accordance with the International Standards for the Professional Practice of Internal Auditing, published by The Institute of Internal Auditors.

Results 
The Bureau of Exceptional Education and Student Services (BEESS) drafted rules to meet the requirements of the IDEA and the Federal Register in 2004. These rules are now being revised. The proposed changes to Florida’s Exceptional Student Education (ESE) rules are designed to mirror the requirements of the IDEA and the federal regulations. 

The Department recently completed a review of all rules as required by Section 120.74, F.S., and identified 46 technical corrections to rules in Chapter 6A, reflecting the transfer of statutes from the 200 series chapters of the Florida Statutes to the 1000 series.   

Our review identified several issues for management attention. One observation highlights the need for rulemaking as required by statutes, while the others address rulemaking activities in response to federal laws and the need for written rulemaking procedures. Specific conditions noted are: 
•	BEESS has adopted new rules in response to the IDEA requirements.
•	Rules have not been developed in some areas as required by statutes. 
•	Several technical assistance papers impose requirements that are defined as rules but are not authorized by statute or adopted by rule.
•	Written rulemaking procedures have not been developed.  

Observation 1 
The Department has caused implementing statutes to be developed when required by federal laws.

The IDEA and federal regulations adopted pursuant thereto were amended in 2004 and State Education Agencies were required to implement the changes. The BEESS has been engaged in rulemaking to meet the IDEA requirements. The Proposed Administrative Rules for Exceptional Student Education were filed in September 2007 in order to mirror the requirements of the IDEA and the federal regulations.  

In response to the 2004 amendments to the act, the United State Department of Education (USDE) implemented CFR 34 Part 300, entitled Assistance to States for the Education of Children with Disabilities and Part 301, entitled Preschool Grant for Children with Disabilities.  The regulation was published in the Federal Register dated August 14, 2006. CFR 34, Parts 300 and 301 are governed by the Office of Special Education and Rehabilitative Services. 

The BEESS commitment to maintaining compliance with federal regulations is evident. The office has and continues to address IDEA regulations, specifically in its Proposed Administrative Rules. Their commitment to rulemaking has resulted in ESE programs that are aligned with federal and state priorities and initiatives.

Commendation:
The BEESS is commended for being dedicated to adopting rules and amending existing rules to ensure alignment of ESE rules with federal laws. 

Observation 2
Rules have not been developed in a number of program areas as required by the Florida Legislature. 

The Department has not developed rules in all cases where required by the Florida Statutes. We identified 72 Department statutes that require the adoption of rules by stating that the SBE shall adopt rules. We compared these statutes with rules in Chapter 6A, Florida Administrative Code (F.A.C.). Fifty-three statutes were found to have corresponding rules; however, rules have not been adopted for the remaining 19 statutes. We also identified 18 statutes that state that the SBE may adopt rules, and found that only eight had corresponding rules. See Attachment A for a list of the statutes identified. 

Pursuant to Section 120.54(1)(a), F.S., rulemaking is not a matter of agency discretion.  Each agency statement defined as a rule by Section 120.52, F.S. shall be adopted by the rulemaking procedure established by the Administrative Procedure Act. Rulemaking is presumed feasible unless the agency proves that: 
a.	The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; 
b.	Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or 
c.	The agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules that address the statement. 

When a statute states that the SBE “shall” adopt rules, this should be interpreted as a directive, something that must be done. Unless one of the conditions mentioned above in Section 120.54, F.S., exists, the SBE is out of compliance with the statutes when rules are not adopted. 

In the past, the Department was not always proactive in adopting rules as required by the statutes.  The cause for not adopting rules cannot be pinpointed to one single source. Each of the 19 statutes for which rules have not been adopted relate to different programs that require appropriate oversight. Not adopting rules as mandated by the Legislature could result in the Department not providing adequate oversight and guidance. Furthermore, the absence of rules deprives the public of the opportunity to provide input into the Department’s policy development as envisioned by the Legislature.  

Recommendation: 
Each program office, with the assistance of the Office of General Counsel and the Agency Clerk, should review the statutes governing their functions to determine whether they have met the requirements for rules. The Department should develop rules as required by statutes and present them to the SBE for adoption. The Department should develop training programs in the area of rulemaking.  Intensive training should be provided to all program staff responsible for drafting, reviewing, or processing a program’s rules. A shorter seminar that provides an overview of administrative rulemaking should be required for all senior staff.
Observation 3 
Several Technical Assistance Papers on Major Areas of Interest and No Child Left Behind impose requirements without any evident basis in statute or rule. 

We reviewed 33 Technical Assistance Papers (TAP) on Major Areas of Interest that were posted between 2006 and 2007. Twelve of these TAPs impose requirements that are not supported by statutory authority or rules. We also reviewed 26 TAPs on NCLB that were published between 2006 and 2007.  Seventeen impose requirements on districts that are not supported by statutory authority or rules.

We also noted that written procedures for posting memos and technical assistance papers on the Department’s website are not formally documented.

When a technical assistance paper requires certain actions from a district, there should be statutory authority, and/or a rule to support the directives. In the absence of authority, the technical assistance paper should be framed in terms of providing guidelines, not requirements. Although there is no requirement that a technical assistance paper make reference to a supporting rule or statute, it is a good practice that management should consider. 

Recommendation:
Technical assistance papers should be reviewed by the Office of General Counsel before being published to ensure consistency with rules and statutes. Management should prepare written procedures for writing and publishing TAPs. TAPs should include the supporting statutory and/or rule reference. 

Observation 4
Written procedures for rulemaking have not been developed. 

There were no formal written procedures for the processes used in rulemaking. Key processes that procedures should describe include detailed information on:
•	Responsibility for rule development
•	Establishing authority for rule
•	Responsibility for review process
•	Responsibility for approval

•	Process for presentation to SBE for their approval
•	Emergency Rule Process

Written procedures are an essential component of the Department’s internal control structure that help ensure compliance with laws, rules, and management directives.  They should be prepared and routinely reviewed and updated to assist management in controlling processes and provide direction to staff. Such procedures will provide a record of processes followed, serve as a training tool for new staff, and provide continuity and uniformity in operations.

Although rulemaking is governed by and explained in Chapter 120, F.S., having internal procedures for rulemaking will provide a quick reference to personnel that can be used as guidance and can help ensure consistency in rulemaking. Written procedures represent a fundamental control mechanism for management, and should be available to Department personnel who work in rulemaking. The absence of written procedures diminishes assurance to management that its directives are being followed, and the Department complies with relevant federal and state laws. 

Recommendation: 
The Agency Clerk and the Office of General Counsel should develop written procedures for key processes noted above, as well as other important processes they believe should be formally documented. 

Closing Comments
The OIG would like to thank the Bureau of Exceptional Education and Student Services, the Office of General Counsel and the Agency Clerk their assistance during this review. 

ATTACHMENT A

	Rules were not adopted for the statutes listed below.	
1	1001.03 Specific powers of State Board of Education.

(3) Professional Certificates: The state board shall adopt rules that give part-time and full-time nondegreed teachers of career programs, pursuant to s. 1012.39(1)(c), the opportunity to earn a reading credential equivalent to a content-area-specific reading endorsement.	
2	1001.26 Public broadcasting program system.

(3) The State Board of Education shall adopt rules for the proper enforcement and carrying out of these provisions.	
3	1001.29 Discounted computers and Internet access for students.

(4) The State Board of Education shall adopt rules concerning: (a) How to integrate into this program the provision of computer or technical training to students in their respective school districts  (b) How parents and students may be notified of the discounted computer and Internet access choices available. (c) The distribution of eligibility certificates to the students, the locations at which discounted computers and Internet access services are available for purchase, and how students may obtain and pay for the equipment and services covered by this program. 	
4	1002.32 Developmental research (laboratory) schools. (Sidney Martin Developmental Research School Act.)

(10) IMPLEMENTATION.--The State Board of Education shall adopt rules necessary to facilitate the implementation of this section.	
5	1002.34 Charter technical career centers.

(18) rules.--The State Board of Education shall adopt rules, pursuant to chapter 120, relating to the implementation of charter technical career centers.	
6	1003.492 Industry-certified career education programs.

(2) The State Board of Education shall use the expertise of Workforce Florida, Inc., and Enterprise Florida, Inc., to develop and adopt rules pursuant to ss. 120.536(1) and 120.54 for implementing an industry certification process.	
7	1006.17 Sponsorship of athletic activities similar to those for which scholarships offered; rulemaking.

(5) The State Board of Education shall adopt rules to administer this section, including rules that determine which athletic activities are similar to sports for which state universities and community colleges offer scholarships. 
	
8	1006.65 Safety issues in courses offered by public postsecondary educational institutions.

(1) The State Board of Education shall adopt rules to ensure that policies and procedures are in place to protect the health and safety of students, instructional personnel, and visitors who participate in courses offered by a community college.
	
9	1006.70 Sponsorship of athletic activities similar to those for which scholarships offered; rulemaking.

(5) The State Board of Education shall adopt rules to administer this section, including rules that determine which athletic activities are similar to sports for which public postsecondary educational institutions offer scholarships. 	
10	1007.271 Dual enrollment programs.

(9) The State Board of Education shall adopt rules for any dual enrollment programs involving requirements for high school graduation.	
11	1007.34 College reach-out program.

The State Board of Education shall adopt rules that provide for the following: (a) Definition of "low-income educationally disadvantaged student." (b) Specific criteria and guidelines for selection of college reach-out participants.	
12	1008.31 Florida’s K-20 education performance accountability system; legislative intent; mission, goals, and system wide measures; data quality improvements. 

(4) RULES.—The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section relating to the K-20 data warehouse. 	
13	1009.68 Florida Minority Medical Education Program.  

(7) The State Board of Education shall adopt rules necessary to implement the provisions of this section.	
14	1009.891 The Access to Better Learning and Education Grant Program.

(2) The Access to Better Learning and Education Grant Program shall be administered by the Department of Education.  The State Board of Education shall adopt rules for administering the program.	
15	1011.18 School depositories; payments into and withdrawals from depositories. 

(5) The State Board of Education shall adopt rules prescribing minimum security measures that must be implemented by any district school board before establishing the system authorized in this subsection.	
16	1011.51 Independent postsecondary endowment grants.

(7) The State Board of Education shall adopt rules necessary to implement this section.	
17	1011.765 Florida Academic Improvement Trust Fund matching grants.

(a) The State Board of Education shall adopt rules for the administration, submission, documentation, evaluation, and approval of requests for matching funds and for maintaining accountability for matching funds.	
18	1012.34 Assessment procedures and criteria. 

(8) The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54, that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance.	
19	1012.75 Liability of teacher or principal; excessive force.

(2) The State Board of Education shall adopt rules that outline administrative standards for the use of reasonable force by school personnel to maintain a safe and orderly learning environment. Such standards shall be distributed to each school in the state and shall provide guidance to school personnel in receiving the limitations on liability specified in this section.