EDU-19-08-00006-RP Special Education Programs and Services

8/27/08 N.Y. St. Reg. EDU-19-08-00006-RP

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 35

August 27, 2008

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-19-08-00006-RP

Special Education Programs and Services

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action:

Addition of section 177.2 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided) and 3602-c(7); and section 4 of chapter 378 of the Laws of 2007

Subject:

Special education programs and services.

Purpose:

To prescribe a dispute resolution mechanism.

Text of revised rule:

Section 177.2 of the Regulations of the Commissioner of Education is added, effective November 13, 2008, as follows:

§ 177.2 Claim by a school district to recover costs for special education provided to non-resident students pursuant to Education Law section 3602-c(2).

(a) Definitions. For purposes of this section:

(1) "Non-resident student" means a student with a disability who is a legal resident of a school district in New York State, who is placed by the student's parent, guardian or person having legal custody of the student, in a nonpublic elementary or secondary school located in another school district in New York State.

(2) "School district of residence" means the school district in which the non-resident student legally resides.

(3) "School district of location" means the school district in which the nonpublic elementary or secondary school attended by the non-resident student is located.

(b) A school district of location may recover from the school district of residence the special education services costs, evaluation costs and committee on special education administrative costs for a nonresident student in accordance with the following procedures:

(1) Where the parent, guardian or person legally having custody of a non-resident student has provided written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act, the school district of location may submit a claim, subject to the requirements of paragraph (3) of this subdivision, to the school district of residence for the evaluation costs, committee on special education administrative costs and special education services costs for the non-resident student. The school district of residence shall pay the school district of location the costs claimed, unless the school district of residence disagrees with such costs and submits an application for administrative review to the State Education Department pursuant to paragraph (4) of this subdivision; provided that nothing in this section shall be construed to authorize a school district of residence, during pendency of such administrative review, to withhold reimbursement to a school district of location of any part of a claim amount that is not disputed, and provided further that nothing in this section shall be construed to preclude the submission of an application for administrative review of a claim that has been paid but is still disputed.

(2) Where the parent, guardian or person legally having custody of a non-resident student has refused to provide written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act, the school district of location may submit a claim to the State Education Department, on a form prescribed by the Commissioner and subject to the requirements of paragraph (3) of this subdivision, for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location.

(3) The amount charged by the school district of location for the costs attributable to providing special education services to the non-resident student, the costs of conducting evaluation(s) of such student and the committee on special education administrative costs attributable to such student shall not exceed the actual cost to the school district of location, after deducting costs attributable to such student that are paid with federal or state funds. The state aid attributable to such a student with a disability shall be determined in accordance with a methodology set forth in guidelines of the Commissioner. The federal aid attributable to such a student with a disability shall be the per capita amount of funds received by the school district pursuant to sections 611 and 619 of Part B of the Individuals with Disabilities Education Act, 20 U.S.C.§ § 1411 and 1419 (United States Code, 2000 edition, Supplement V, Volume 3; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2007 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), as determined pursuant to guidelines of the Commissioner.

(4) Administrative review of claim.

(i) Application.

(a) A school district of residence that disagrees with the amount of costs charged by the school district of location may, after documented efforts to resolve the dispute with the district of location, submit an application for administrative review of such claim to the State Education Department on a form prescribed by the Department.

(1) Claim concerning student residency. A school district shall not submit an application for administrative review of a claim pursuant to this section for the purpose of determining the residency of a parentally placed nonpublic school student for whom a claim to such school district is made by the school district of location. If such school district disputes that such student is a legal resident, the school district shall make a residency determination in accordance with the provisions of section 100.2(y) of this Title and this subclause. The school district shall provide the district of location with an opportunity to submit evidence of the student's residence and shall consider such evidence, if any, in making its residency determination. If the school district determines that the student is neither a resident of such district nor entitled to attend its schools pursuant to section 100.2(x) of this Title, such school district shall, within two business days, also provide written notice of its determination to the school district of location, consistent with the requirements in section 100.2(y) of this Title. The school district of location may seek review of such residency determination in accordance with the procedures in section 100.2(y) of this Title, and may appeal such residency determination to the Commissioner of Education pursuant to Education Law section 310.

(2) Claim concerning special education services. A school district of residence shall not submit an application for administrative review of a claim pursuant to this section for the purpose of disputing the type or amount of special education services provided to a student with a disability pursuant to the student's individualized education services program developed by the school district of location.

(b) An application for administrative review by the Department, shall specify the reason(s) the school district of residence disagrees with the amount of costs charged by the school district of location and shall include documentation of its attempts to resolve the dispute prior to submission of the application for administrative review by the Department.

(c) The application for administrative review shall be submitted not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to section 100.2(y) of this Title and subclause (1) of clause (a) of subparagraph (i) of this paragraph, whichever shall occur later.

(d) An administrative review of a claim pursuant to this section shall be the exclusive remedy for resolution of disputes concerning such claim, and the determination of the Commissioner or the Commissioner's designee upon such review shall be the final determination of the Department.

(ii) Review process.

(a) Upon receipt of an application for administrative review of a claim, the Department shall require the school district of location to provide the following information where relevant to the reasons for the dispute of the claim: (a) certification that the costs attributable to such student represent the actual costs to the school district of location; and (b) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

(b) The review shall culminate in a determination by the Commissioner or the Commissioner's designee and shall be limited to a determination of whether the claimed costs were attributable to the non-resident student and reflect the actual cost to the school district of location pursuant to paragraph (3) of this subdivision. The school district of residence shall pay the costs to the school district of location, in accordance with the determination of the Commissioner or the Commissioner's designee. The Commissioner or the Commissioner's designee may modify the amount claimed by the school district of location, as necessary, to reflect the actual cost to such school district.

Revised rule compared with proposed rule:

Substantial revisions were made in section 177.2(b)(1) and (4).

Text of revised proposed rule and any required statements and analyses may be obtained from

Anne Marie Koschnick, Legal Assistant, Education Department, Office of Counsel, Education Bldg., Rm. 148, Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Rebecca H. Cort, Deputy Commissioner, VESID, Education Department, One Commerce Plaza, Rm. 1606, Albany, NY 12234, [phone], email: rcort@mail. nysed.gov

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on May 7, 2008, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith:

Section 177.2(b)(1) is revised to clarify that nothing in the section shall be construed to authorize a school district of residence, during pendency of an administrative review, to withhold reimbursement to a school district of location of any part of a claim amount that is not disputed, and to clarify that nothing in the section shall be construed to preclude the submission of an application for administrative review of a claim that has been paid but is still disputed.

Section 177.2(b)(4) is revised to expressly preclude a school district of residence from seeking an administrative review of a claim for purposes of disputing a student's residency, and to require the school district of residence to resolve residency disputes consistent with the requirements in section 100.2(y) of the Regulations of the Commissioner of Education, with additional requirements that documentation submitted by the district of location be considered in the district's residency determination, and that the district of location may seek a review by the district of residence and appeal to the Commissioner pursuant to Education Law section 310.

Section 177.2(b)(4)(i)(a) and (b) are revised to provide that a school district of residence may only submit a request for an administrative review of a claim after documented efforts to resolve the dispute with the district of location.

Section 177.2(b)(4)(i)(a)(2) is revised to provide that a school district of residence shall not submit an application for administrative review of a claim pursuant to this section for the purpose of disputing the type or amount of special education services provided to a student with a disability pursuant to the student's individualized education services program developed by the school district of location.

Section 177.2(b)(4)(i)(b) is revised to: (1) require the district of residence to state the specific objections to the claim in its submission of an administrative review by the Department; and (2) require the district of location to provide information relevant to the reasons for the dispute of the claim.

Section 177.2(b)(4)(i)(c) is revised to provide that the application for administrative review shall be submitted not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to 8 NYCRR section 100.2(y) and section 177.2(b)(4)(i)(a)(1), whichever shall occur later.

In paragraph (1) of subdivision (b) of section 177.2, the phrase "between the school district of location and the school district of residence" inadvertently appears twice in the first sentence, with brackets indicating deletion placed around the phrase the second instance it appears. The bracketed phrase has been deleted as redundant.

These revisions require that the Paperwork section of the previously published Regulatory Impact Statement be revised to read as follows:

PAPERWORK:

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that applications for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to 8 NYCRR section 100.2(y), whichever shall occur later. Upon receipt of such claim, the Department shall require, where relevant to the reasons for the dispute of the claim: (1) certification that the costs attributable to such student represent the actual costs to the school district of location; and (2) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on May 7, 2008, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith:

The revisions to the proposed rule require that the Compliance section of the previously published Regulatory Flexibility Analysis be revised to read as follows:

COMPLIANCE REQUIREMENTS:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which became effective June 30, 2007, and does not impose any additional compliance requirements upon local governments beyond those imposed by the statute. The claiming of reimbursable cost by a school district of location, or the initiating of administrative review by the Commissioner of disputed costs by a school district of residence, is at the discretion of each school district.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that applications for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to 8 NYCRR section 100.2(y), whichever shall occur later. Upon receipt of such claim, the Department shall require, where relevant to the reasons for the dispute of the claim: (1) certification that the costs attributable to such student represent the actual costs to the school district of location; and (2) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on May 7, 2008, the proposed rule was revised as set forth in the Revised Regulatory Impact Statement filed herewith.

The revisions to the proposed rule require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed regulation is necessary to implement Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007, which became effective June 30, 2007, and does not impose any additional reporting, recordkeeping and other compliance requirements upon rural areas beyond those imposed by the statute.

The proposed regulation would add a new Commissioner's Regulation section 177.2 to establish the process by which a claim by a school district of location for reimbursement of its costs to provide special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district may be made to the school district where that student resides; and describes the process for an administrative review by the Commissioner when the school district of residence disputes the amount of the claim by the district of location for such services.

The proposed regulation would require that, in instances where parental consent to share personally identifiable special education information about the student is not provided, the school district of location shall submit its reimbursement claim to the State Education Department, on a form prescribed by the Commissioner for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student. Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location. In instances where parental consent to share personally identifiable special education information is provided, the school district of location is entitled to directly recover its costs from the school district of location.

The proposed regulation also requires that applications for administrative review by the State Education Department of disputed claim amounts be submitted on forms prescribed by the Department not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to 8 NYCRR section 100.2(y), whichever shall occur later. Upon receipt of such claim, the Department shall require, where relevant to the reasons for the dispute of the claim: (1) certification that the costs attributable to such student represent the actual costs to the school district of location; and (2) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities. Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

The proposed regulation does not impose any additional professional service requirements on local governments.

Revised Job Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on May 7, 2008, the proposed rule was revised as set forth in the Statement Concerning the Regulatory Impact Statement filed herewith.

The proposed rule, as revised, is necessary to implement Education Law section 3602-c(7), as amended by Section 4 of Chapter 378 of the Laws of 2007, which entitles the school district of location to recover its costs of providing special education services to a New York State resident student with a disability who is parentally placed in a nonpublic school located in such district, from the student's school district of residence; and requires the Commissioner to adopt regulations prescribing a dispute resolution mechanism regarding the amount of charges for special education services provided to a nonresident parentally-placed student with a disability. The proposed revised rule will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on May 7, 2008, the State Education Department received the following comments on the proposed rule. Other comments received were unrelated to the proposed rule and are not included in the Assessment of Public Comment.

General

1. COMMENT:

Equity in payment for administrative costs should be factored into the formula for reimbursement. Clarify whether a fee schedule for the provision of services that exceed state aid will be established or if the costs will be solely determined at the discretion of the district of location (DOL).

DEPARTMENT RESPONSE:

Education Law section 3602-c does not authorize rates to be established for committee on special education (CSE) administrative costs. Therefore, the costs will vary by school district, but must be calculated to ensure that they do not exceed the actual costs incurred by the district for each student.

2. COMMENT:

Clarify whether the CSE administrative costs which may be recovered include child find and consultation expenses.

DEPARTMENT RESPONSE:

The amount to be charged to the district cannot include the costs for child find and consultation, since those costs cannot be attributed to a specific student.

3. COMMENT:

Add that the district of residence (DOR) should have the ability to verify the "residence" of any child for whom a claim for reimbursement is being made. The inability of the DOR to challenge such a claim may result in a loss of state revenues for claims being made by the other district.

DEPARTMENT RESPONSE:

Section 177.2(b)(4) has been revised to clarify that a dispute regarding residency of the student must be addressed pursuant to section 100.2(y) of the Commissioner's Regulations with additional procedures added for documentation from the school district of location to be considered in the residency determination and for the right of the district of location to seek a review of a residency determination.

4. COMMENT:

Clarify whether transportation costs are reimbursable.

DEPARTMENT RESPONSE

Department guidelines clarify that costs of the services provided to the student could include transportation costs for the direct purpose of providing such services.

5. COMMENT:

Clarify whether a DOL could recommend transportation to a nonpublic school further than the 50 mile limit stated in Education Law section 4402(4)(d), and as such, require the DOR to provide that transportation.

DEPARTMENT RESPONSE:

Section 4402(4)(d) pertains only to a recommendation of the DOR and not to a DOL. Therefore, a DOL could not recommend such transportation.

6. COMMENT:

Clarify reimbursement for claims for out-of-state students placed in nonpublic schools in New York State.

DEPARTMENT RESPONSE:

The provision of services to out-of-state students is limited to services based on a proportionate share of federal IDEA funds. Federal and State law provide no authority for interstate billing,

7. COMMENT:

Clarify whether reimbursement for special education services means the same as special education programs and services, and whether special education programs provided in a DOL's buildings or in an out-of-district facility would be reimbursable.

DEPARTMENT RESPONSE:

The term special education services means those special education programs or services recommended on a student's individualized education services program (IESP) regardless of the location where such programs/services are provided.

8. COMMENT:

Parentally-placed nonpublic school students will now have a choice of districts from which they may seek services and this proposed process may inadvertently promote "de facto segregation" as it may favor the children of more affluent families whose parents can afford to place their children in private schools.

DEPARTMENT RESPONSE:

This comment is beyond the scope of the proposed rulemaking, which is to prescribe by regulation a dispute resolution mechanism that will be available to a DOR where such district disagrees with the amount of tuition or costs charged by the DOL. The proposed rule is consistent with Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, which establishes the process for providing services to students with disabilities who attend nonpublic schools located outside the DOR.

9. COMMENT:

Since the proposed dispute resolution process does not require DOLs to consider the cost of services, which will be billed back to the DOR, parents may demand and receive more services from the DOL than from the DOR.

DEPARTMENT RESPONSE:

A parent participates as a member of the CSE and the CSE must consider the concerns of the parent for the education of their child. However, it is the responsibility of the CSE to develop recommendations for services based on the individual needs of the student. Services to parentally-placed nonpublic school students must be provided in an equitable manner. The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.

10. COMMENT:

The DOL appears to have the authority to expend tax levy funds for the DOR without oversight or approval from the fiscally responsible Board of Education. The provisions of section 3602-c and the "bill back" process provide for no oversight for the expenditures associated with disabled students in nonpublic school unless the costs are contested. The provisions for dispute resolution focus on costs for services and do not address the "equitable" factor. Regulations should allow the DOR to challenge the level of service(s) being offered to ensure that a DOL is not just "giving away services" at the expense of the DOR. Regulations should include a mechanism for the DOR to challenge a DOL recommendation regarding the intensity of services.

DEPARTMENT RESPONSE

The authority of school districts to bill back other districts for the cost of special education services does not exclusively pertain to parentally-placed nonpublic school students. Each CSE makes its recommendations for services in accordance with federal and State law and regulation and without regard to costs. The DOL may only charge the DOR for the actual costs incurred. Section 177.2(b)(4) has been revised to preclude use of administrative review procedures to dispute the amount or type of special education services recommended by the DOL on a student's individualized education services program.

11. COMMENT:

Section 3602-c indicates that due process costs are recoverable from the DOR, yet there is no mention of these costs in the proposed set of procedures. If due process costs are to be included and the DOL does not prevail, the DOR may be forced to pay for special education services and all legal fees as well. Without cost controls in place, the DOR is at risk for exorbitant costs as a result of the actions of another school district. Rather than place themselves in financial risk should the due process costs not be recoverable, in situations where the DOL does not agree with parents' recommendations for individual education services program (IESP), the DOL would likely agree to the IESP knowing that the costs can be billed back to the DOR.

DEPARTMENT RESPONSE:

There are no allowable due process costs that a DOL may charge to a DOR. Education Law section 3602-c(7)(b) establishes an entitlement to recover "costs of services, costs of evaluation, and costs of committee on special education administration" directly from the district of residence of the student, and does not include due process costs within the entitlement. Education Law section 3602-c(7)(c) establishes that the costs shall not exceed the actual cost to the school district of location, after deducting any costs paid with federal or state funds, and while there is mention of "eligible due process costs," the Department believes that this is a drafting anomaly in the statute because there is no entitlement to recover such costs pursuant to section 3602-c(7)(b).

12. COMMENT:

If parents do not give permission to the DOL to communicate with the DOR, an active IEP can exist along with an IESP for each child. In a due process situation, parents may try to use one district's recommendations against another's.

DEPARTMENT RESPONSE:

This comment is beyond the scope of the proposed rulemaking, which is to prescribe by regulation a dispute resolution mechanism that will be available to a DOR where such district disagrees with the amount of tuition or costs charged by the DOL. The proposed rule is consistent with Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, which requires parental permission.

14. COMMENT:

A district may desire to file a claim solely because it disputes the legal residence of the student in question and may have no particular disagreement with the costs asserted.

DEPARTMENT RESPONSE:

The proposed rule has been revised to expressly preclude a DOR from seeking an administrative review of a claim for purposes of disputing a student's residency, and to require the DOR to resolve residency disputes consistent with the requirements in section 100.2(y) of the Regulations of the Commissioner of Education, with additional requirements that documentation submitted by the DOL be considered in the district's residency determination, and that the DOL may seek a review by the DOR and an appeal to the Commissioner pursuant to section 310 of the Education Law.

15. COMMENT:

The proposed rule is likely to result in excessive and unnecessary paperwork in requiring the DOL to certify the actual costs involved and provide a detailed accounting of the claim, in all instances and even when not relevant to the particular claim in dispute. The proposed rule should be revised to require the DOR submitting a request for an administrative review of a claim to indicate the specific reason or reasons for the object to the claim and require the district of location to respond appropriately.

DEPARTMENT RESPONSE:

Section 177.2(b)(4)(i)(b) has been revised to: (1) require the DOR to state the specific objections to the claim in its submission of an administrative review by the Department; and (2) to require the DOL to provide information relevant to the reasons for the dispute of the claim.

16. COMMENT:

The proposed section 177.2(b)(1) and (4) seem to encourage prolonged deferral of any payments and may encourage frivolous requests for review. Consider adding measures to encourage districts to act more diligently, for example, by allowing requests for review to be submitted on paid claims, requiring payment of items not under dispute, authorizing dismissal of frivolous requests, and encouraging districts to attempt to work out disagreements on their own before invoking the administrative review process.

DEPARTMENT RESPONSE:

The proposed rule has been revised to add that a DOR may only submit a request for an administrative review of a claim after documented efforts to resolve the dispute with the DOL; and that nothing in the proposed section shall be construed to preclude a DOR from submitting a request for an administrative review when such claims have been paid or to authorize a DOR to withhold reimbursement to a DOL for any party of a claim amount that is not the subject of the dispute.