Cal. Code Regs. tit. 2 § 1859.82.1

Current through Register 2024 Notice Reg. No. 45, November 8, 2024

Section 1859.82.1 - Facility Hardship Program

"School Building" for the purposes of this Section shall have the same definition as Education Code Section 17283 and shall also exclude any districtwide administrative facilities.

A district is eligible for Facility Hardship funding to repair, replace, or construct School Buildings or related required components that are currently causing a health and safety threat to the students and/or staff. Projects solely to replace components that have reached the end of their useful life, perform routine maintenance or repair, issues resulting from the deferment of routine maintenance or repair, lack of current code compliance, or the addition of components that were not previously existing, do not meet the qualifying criteria of the program. However, this work may be incorporated into a qualifying Facility Hardship application if it is required to be completed to gain DSA approval.

Beginning 90 days after the effective date of this Section [November 29, 2020], Approved Applications requesting Facility Hardship Program funding shall be submitted to OPSC within 12 months of DSA approval for the scope of work mitigating the identified health and safety threat. If the project does not require DSA approval, then the Approved Application for funding must be received within the 6 months following project completion, as demonstrated by the earliest of the following: the date that the notice of completion of the project has been filed; occupancy of any portion of the project Facility; or when the School Buildings or components of the School Buildings in the project are currently in use by the district. If a district demonstrates that extreme or unusual circumstances prevented the submission of an eligible application within the applicable timeline outlined above, OPSC may allow up to an additional 6 months for submittal.

(a) Districts may qualify for funding to replace or construct new School Buildings. Factors to be considered by the Board to determine eligibility for Facility Hardship program replacement funding may include, but are not limited to:

(1) Damage or loss as a result of a natural disaster such as a fire, flood, or earthquake.

(2) Proximity to a major freeway, airport, electrical facility, high power transmission lines, dam, pipeline, or industrial facility.

(3) Adverse air quality.

(4) Structural deficiency to the School Building, and

(5) Site conditions such as faulting, toxic soil, or liquefaction.

(b) To qualify for replacement funding for School Buildings, the district must submit an Approved Application for funding and either (1) or (2) below:

(1) For School Buildings that are lost, destroyed, or unable to be repaired, the district must submit:

(A) A report from an industry specialist (a person or entity that specializes in the specific area of expertise for that health and safety issue) that states that the only way to mitigate the health and safety threat is to replace the School Building(s).

(B) Documentation which demonstrates that the facilities in the project must be reconstructed in order to house the current enrollment of the district.

(2) For permanent School Buildings where the cost to rehabilitate the School Building(s) exceeds 50 percent of the Current Replacement Cost, or for Portable Classrooms where the cost to rehabilitate exceeds the Portable Classroom Replacement Grant or Portable Toilet Replacement Grant, the district must submit:

(A) A report by an industry specialist (a person or entity that specializes in the specific area of expertise for that health and safety issue) that outlines the minimum work to mitigate the health and safety threat and remain in the existing School Building. If the threat is due to the presence of mold, OPSC must conduct a site visit to discuss the scope of the project prior to remediation. If the remediation is done prior to a site visit, the application will be ineligible for funding. Requests for asbestos mitigation must include lab test results indicating the asbestos is currently friable, and provides the location, material, and testing methods used.

(B) A letter of concurrence from a governmental agency that has jurisdiction or expertise over the field in which the health and safety threat originates. The letter must concur with the industry specialist report on both 1. and 2. below:

1. An imminent health and safety threat to student and/or staff exists.

2. The mitigation measures outlined in the industry specialist's report are the minimum measures required to mitigate the threat and allow the continued use of the School Building(s).

(C) Applications must include a detailed Form SAB 58-01 that meets the following requirements:

1. The Form SAB 58-01 must use the most current edition of the Current Construction Remodeling and Repair Cost publication by Sierra West Publishing. For all materials or items listed in the most current edition of the Current Construction Remodeling and Repair Cost publication, amounts entered on the Form SAB 58-01 must use the provided unit costs. For individual materials or items that are not contained in the most current edition of the Current Construction Remodeling and Repair publication, the district must provide supporting documentation for OPSC to review the requested unit cost.

2. All requested line items shall include Construction Specifications Institute reference number (CSI #), description, F3 total unit cost amount, and quantity. Any line items that include amounts in lump-sum formats will not be reviewed or approved.

3. The work in the Form SAB 58-01 shall match the work outlined in the report provided by the industry specialist (a person or entity that specializes in the specific area of expertise for that health and safety issue) for the minimum work required to mitigate the health and safety threat.

4. The estimate submitted to OPSC shall be for the same scope of work reviewed and concurred to by DSA, and that is referenced in the governmental concurrence letter for the project.

5. The Form SAB 58-01 may also include any work required by DSA to obtain plan approval.

(D) A cost/benefit analysis that demonstrates the minimum work required to mitigate the health and safety threat and remain in the School Building exceeds 50 percent of the Current Replacement Cost of the existing Square Footage of the School Building. The minimum work required may include work required by DSA to gain approval for the mitigation project.

(E) All other documents required to complete an Approved Application for funding. This includes:

1. A completed Application for Funding (Form SAB 50-04).

2. The DSA Plan Approval letter for the project or documentation from DSA verifying that the project is exempt from their approval process.

3. CDE Plan Approval letter for the project or documentation from CDE verifying that the project is exempt from their approval process.

4. If the project is for a high school site, a letter or meeting minutes from the district's Career and Technical Education Advisory Committee (CTEAC) certifying that the district is in compliance with all career technical facility needs and assessments as outlined in Education Code, Section 17070.955.

(3) Applications for Facility Hardship replacement funding that do not submit all documents required as part of (1) or (2) above shall be returned without review.

(4) If the district qualifies for funding to replace its School Buildings, the district is eligible to receive funding for the project as follows:

(A) If the district is required to replace all School Buildings on site, the district is eligible to receive funding as follows:

1. A New Construction Grant will be provided for the lesser of 2. or 3. below.

2. The classroom capacity determined by multiplying the number of classrooms on the project site being replaced by:

a. 25 pupils for each K-6 classroom.

b. 27 pupils for each 7-12 classroom.

c. 13 pupils for each Non-Severely Disabled Individuals with Exceptional Needs classroom.

d. 9 pupils for each Severely Disabled Individuals with Exceptional Needs classroom.

3. The higher of a., b., or c. below:

a. The CBEDS Report of the current enrollment reporting year at the existing project site.

b. The average CBEDS Report of the current enrollment reporting year and two immediately preceding enrollment reporting years at the existing project site.

c. If the site is closed, use the CBEDS Report of the last enrollment reporting year in which the site was open.

4. Additional funding may be provided, as applicable, for:

a. Fire Code Requirements pursuant to Section 1859.71.2,

b. therapy room pursuant to Section 1859.72,

c. multilevel construction pursuant to Section 1859.73,

d. project assistance pursuant to Section 1859.73.1.

e. replacement with multistory construction pursuant to Section 1859.73.2,

f. site acquisition pursuant to Sections 1859.74, 1859.74.5, and 1859.75,

g. Hazardous waste removal pursuant to Sections 1859.74.2, 1859.74.3, and 1859.74.4,

h. Applicable site development costs pursuant to Section 1859.76, and

i. New Construction Excessive Cost Hardship Grant(s) for geographic location pursuant to Section 1859.83(a),

j. New Construction Excessive Cost Hardship Grant(s) for small size projects pursuant to Section 1859.83(b),

k. New Construction Excessive Cost Hardship Grant(s) for new school projects pursuant to Section 1859.83(c), and

l. New Construction Excessive Cost Hardship Grant(s) for urban location, security requirements and impacted site pursuant to Section 1859.83(d).

(B) If the district qualifies to replace some but not all School Buildings on the project site, funding will be based on the Square Footage of the School Buildings replaced and is capped by the lesser of the amount provided in accordance to the chart below and the Square Footage constructed for each category as justified by enrollment at the project site as follows:

1. The enrollment at the project site, is determined by the higher of a. or b. below, or c.:

a. The CBEDS Report of the current enrollment reporting year at the existing project site.

b. The average CBEDS Report of the current enrollment reporting year and two immediately preceding enrollment reporting years at the existing project site.

c. If the site is closed, use the CBEDS Report of the last enrollment reporting year in which the site was open.

2. Using the enrollment determined in 1. any permanent replacement Square Footage provided will be calculated in accordance to a., b., c., below and the chart below.

a. If the actual square footage being constructed in the replacement project is less than the amount allowable in the chart for each facility type, the replacement Square Footage shall be limited to the actual square footage constructed.

b. Non-specialized classroom space provided is limited by the enrollment determined in 1. rounded up to the nearest whole classroom based on 1859.82.1(b)(4)(A)2., and then reduced for any classroom space available at the site to house the pupils at the site.

c. Classrooms with specialized design such as auto shop, metal shop, music rooms, consumer home economic laboratories, industrial technology laboratories, or science laboratories will qualify for funding if used for its specialized purpose in the current enrollment reporting year or immediately preceding enrollment reporting year. Additionally, these spaces will not count as available capacity for purposes of providing funding in this section when calculating space available to house displaced pupils.

d. Any space not in the chart below will be provided based on the Square Footage replaced. This may include, but is not limited to, janitor's closets, hallways, and vestibules.

*Facility*	*Elementary School Pupils*	*Middle School Pupils*	*High School Pupils*
Multi-Purpose (includes food service)	5.3 sq. ft. per pupil minimum 4,000 sq. ft.	5.3 sq. ft. per pupil minimum 5,000 sq. ft.	6.3 sq. ft. per pupil minimum 8,200 sq. ft.

Toilet	3 sq. ft. per pupil minimum 300 sq. ft.	4 sq. ft. per pupil minimum 300 sq. ft.	5 sq. ft. per pupil minimum 300 sq. ft.

Gymnasium (includes shower/locker area)	N/A	12.9 sq. ft. per pupil minimum 6,828 sq. ft. maximum 16,000 sq. ft.	15.3 sq. ft. per pupil minimum 8,380 sq. ft. maximum 18,000 sq. ft.

School Administration	3 sq. ft. per pupil minimum 600 sq. ft.	3 sq. ft. per pupil minimum 600 sq. ft.	4 sq. ft. per pupil minimum 800 sq. ft.

Library/Media Center	2.3 sq. ft. per pupil plus 600 sq. ft., minimum 960 sq. ft.	3.3 sq. ft. per pupil plus 600 sq. ft. minimum 960 sq. ft.	4.3 sq. ft. per pupil plus 600 sq. ft. minimum 960 sq. ft.

Kindergarten Classrooms (including Transitional Kindergarten)	1,350 sq. ft. for each replacement classroom.	NA	NA

Classrooms (1st-12th grade)	960 sq. ft. for each replacement classroom	960 sq. ft. for each replacement classroom	960 sq. ft. for each replacement classroom

Computer instructional support area, Industrial and Technology/Education Laboratory	960 sq. ft. for each replacement classroom.	960 sq. ft. for each replacement classroom.	960 sq. ft. for each replacement classroom.

Laboratory Classrooms (including science and consumer home economics. (Does not include Industrial and Technology/Education Laboratory)	1,300 sq. ft. for each replacement classroom.	1,300 sq. ft. for each replacement classroom.	1,300 sq. ft. for each replacement classroom.

e. Beginning August 31, 2020, the resulting Square Footage amount(s) shall be multiplied by $204 per square foot for all non-Toilet Facilities and by $366 per square foot for Toilet Facilities (includes shower/locker area and physical therapy area for Individuals with Exceptional Needs). The amounts shown will be adjusted in the manner prescribed in Section 1859.71.

3. Additional funding may be provided, as applicable, for:

a. therapy room pursuant to Section 1859.72,

b. multilevel construction pursuant to Section 1859.73,

c. project assistance pursuant to Section 1859.73.1.

d. replacement with multistory construction pursuant to Section 1859.73.2,

e. site acquisition pursuant to Section 1859.74,

f. Hazardous waste removal pursuant to Sections 1859.74.2, 1859.74.3 and 1859.74.4,

g. Applicable site development costs pursuant to Section 1859.76, and

h. New Construction Excessive Cost Hardship Grant(s) for geographic location pursuant to Section 1859.83(a),

i. New Construction Excessive Cost Hardship Grant(s) for small size Projects pursuant to Section 1859.83(b), and

j. New Construction Excessive Cost Hardship Grant(s) urban location, security requirements and impacted site pursuant to Section 1859.83(d).

(C) Using the enrollment determined in (b)(4)(B)1., any Portable Classroom replacement funding provided will be calculated using the Portable Replacement Grant. Any portable toilet facilities provided will be calculated using the Portable Toilet Replacement Grant.

1. Additional funding may be provided, as applicable, for:

a. Fire Code Requirements pursuant to Section 1859.71.2,

b. therapy room pursuant to Section 1859.72,

c. project assistance pursuant to Section 1859.73.1.

d. site acquisition pursuant to Section 1859.74,

e. Hazardous waste removal pursuant to Sections 1859.74.2, 1859.74.3 and 1859.74.4,

f. Applicable site development costs pursuant to Section 1859.76, and

g. Excessive Cost Hardship Grant(s) for geographic location pursuant to Section 1859.83(a),

h. New Construction Excessive Cost Hardship Grant(s) for small size projects pursuant to Section 1859.83(b), and

i. Excessive Cost Hardship Grant(s) urban location, security requirements and impacted site pursuant to Section 1859.83(d).

(D) If the district qualifies for replacement funding, the funding may be used to rehabilitate the facility as long as the qualifying health and safety threat is fully mitigated. If replacement funding is used for rehabilitation work, the district may request the following supplemental grants, as applicable, for:

1. Fire code requirements pursuant to Section 1859.71.2 if the funding is based on a per-pupil basis pursuant to Section 1859.82.1(b)(4)(A),

2. Therapy room pursuant to Section 1859.72,

3. Project assistance pursuant to Section 1859.73.1,

4. Excessive Cost Hardship Grant(s) for geographic location pursuant to Section 1859.83(a),

5. New Construction Excessive Cost Hardship Grant(s) for small size projects pursuant to Section 1859.83(b), and

6. Excessive Cost Hardship Grant for urban location, security requirements and impacted site pursuant to Section 1859.83(d).

(c) Districts may qualify for funding to rehabilitate their School Buildings, components of School Buildings, or school site conditions. Factors to be considered by the Board may include (1) or (2) below:

(1) School Buildings where the minimum cost to mitigate the health and safety threat and remain in the School Building is 50 percent or less of the Current Replacement Cost.

(2) Components of the School Buildings or school sites conditions are causing a health and safety threat to students and/or staff. Health and safety threats that may qualify include, but are not limited to:

(A) School Building structural deficiency.

(B) Hazardous conditions such as methane, lead, or asbestos mitigation.

(C) Unsafe water supply.

(D) Site conditions such as faulting, toxic soil, landslide risk, or liquefaction.

(3) To qualify for Facility Hardship rehabilitation funding for School Buildings or components of School Buildings, the district must submit an Approved Application for funding and all documents outlined below. Applications that do not meet the requirements below shall be returned without review.

(A) A report by an industry specialist (a person or entity that specializes in the specific area of expertise for that health and safety issue) that outlines the minimum work to mitigate the health and safety threat and remain in the existing School Building. If the threat is due to the presence of mold, OPSC must conduct a site visit to view the damage prior to remediation. If the remediation is done prior to a site visit, the application will be ineligible for funding. Requests for asbestos mitigation must include lab test results indicating the asbestos is currently friable, and provides the location, material, and testing methods used.

1. An imminent health and safety threat to student and/or staff exists.

2. The mitigation measures outlined in the industry specialist's report are the minimum measures required to mitigate the threat and allow the continued use of the School Building(s) or component.

(C) Applications must include a detailed Form SAB 58-01 that meets the following requirements:

4. If the project requires DSA plan approval, the Form SAB 58-01 submitted to OPSC shall be for the same scope of work reviewed and concurred to by DSA, and that is referenced in the governmental concurrence letter for the project.

5. The Form SAB 58-01 may also include any associated work required by DSA as a result of the mitigation of the health and safety threat.

(D) Facility Hardship applications for School Buildings must also include a cost/benefit analysis. The cost/benefit analysis shall be completed based on the type of the project as outlined below:

1. For permanent buildings, the district must demonstrate the minimum work required to mitigate the health and safety threat and remain in the School Building is less than 50 percent of the Current Replacement Cost of the School Building. The minimum work required may include work required by Division of the State Architect to gain approval for the mitigation project.

2. For Portable School Buildings, the district must demonstrate the minimum work required to mitigate the health and safety threat and remain in the portable building is less than the Portable Classroom Replacement Grant. The minimum work required may also include any associated work required by DSA as a result of the mitigation of the health and safety threat.

3. Applications that are for necessary components of a site or School Building, such as hazardous water supply, methane mitigation, faulting, liquefaction, landslide potential, friable asbestos, do not require a Cost Benefit Analysis to be submitted.

(E) All other documents required to complete an Approved Application for funding. This includes:

1. A completed Application for Funding (Form SAB 50-04).

2. The DSA Plan Approval letter for the project or documentation from DSA verifying that the project is exempt from their approval process.

3. CDE Plan Approval letter for the project or documentation from CDE verifying that the project is exempt from their approval process.

(4) If the district qualifies for funding to rehabilitate or repair its School Buildings, the district is eligible to receive funding for the project as follows:

(A) Rehabilitation Costs provided shall be 60 percent of the eligible costs in the Form SAB 58-01 required in Section 1859.82.1(c)(3)(C) that has been reviewed and approved by the OPSC and approved by the Board.

(B) If the district qualifies for rehabilitation funding, the funding may be used towards the replacement of the facility as long as the qualifying health and safety threat is fully mitigated.

(C) Applicable supplemental grants may be provided for the following:

1. project assistance pursuant to Section 1859.73.1.

2. geographic percentage factor pursuant to 1859.83(a)

(d) Any grants provided in accordance to (b) or (c) above shall be adjusted as follows:

(1) For projects funded in accordance to (b) above:

(A) Reduced for any space deemed available by the Board in the district, HSAA, or Super HSAA that could be used to house some or all of the displaced pupils in the project,

(B) Reduced by 50 percent of any insurance proceeds collectable by the district for the project. Any insurance proceeds collected after Apportionment shall be reported to OPSC and the Apportionment will be amended accordingly.

(C) Reduced by 50 percent of the net proceeds available from the disposition of the property and/or facilities in the project.

(2) For projects funded in accordance to (c) above:

(A) 60 percent of any insurance proceeds collectable by the district for the project.

(B) 60 percent of the net proceeds available from the disposition of any displaced facilities in the project.

(e) Adjustments to School Facility Program per-pupil grants.

(1) The district's New Construction Eligibility will be adjusted for any net increase in classroom capacity in the project pursuant to Section 1859.51(i).

(2) The baseline eligibility for modernization as provided in Section 1859.60 will be adjusted for any funding received in accordance to (b) above. The age of the classroom and square footage in the project shall be reset to the date of the Apportionment for the project.

(f) Districts that qualify for Financial Hardship assistance may file an application for design funding, site funding, and determination of program eligibility in advance of construction funding.

(1) To request advanced funding for design for eligible projects, the district must submit an Application for Funding (Form SAB 50-04) indicating the request for design funding and all documents listed in Section 1859.82.1(c)(3)(A) through Section 1859.82.1(c)(3)(D)3.

(2) Advanced funding for design shall be provided based on the eligible project type as follows:

(A) For projects receiving funding for advanced design for the replacement of all School Buildings on the project site pursuant to Section 1859.82.1(b)(4)(A), the Board will apportion an amount not to exceed 40 percent of the New Construction Grant less any district funds available for the project pursuant to Section 1859.81(a).

(B) For projects receiving funding for advanced design for at least one but not all School Buildings on the project site pursuant to Section 1859.82.1(b)(4)(B), the Board will apportion an amount not to exceed 40 percent of the Facility Hardship Square Footage Grant less any district funds available for the project pursuant to Section 1859.81(a).

(C) For projects receiving funding for advanced design for Rehabilitation Costs pursuant to Section 1859.82.1(c)(4)(A), the Board will apportion an amount not to exceed 25 percent of the Rehabilitation Costs determined pursuant to Section 1859.82.1(c)(4)(A) less any district funds available for the project pursuant to Section 1859.81(a).

(3) Advanced funding for site shall be provided pursuant to 1859.82.1(b)(4)(A)4. The district is eligible for advanced funding for site acquisition as calculated pursuant to 1859.81.1.

(4) The amount apportioned for advanced design is an estimate of the funds needed for design, engineering, and other pre-construction project costs. Qualifying districts may request a separate Apportionment for the design and for site acquisition for the same facility hardship project.

(5) The district is required to submit an Approved Application for funding and an updated Form SAB 58-01 for projects funded in accordance to 1859.82.1(c) or site development worksheet for projects funded in accordance to 1859.82.1(b), that reflects the final approved drawings for the project within:

(A) 18 months from the date of Apportionment if the project scope will be for repair or replacement on the same site.

(B) 24 months from the date of Apportionment if the project scope is for the replacement of School Building(s) which will be located on a replacement site.

(6) If the district does not submit the Approved Application for funding within the timelines required by Section (2) above, the application will be reduced to eligible costs incurred.

(7) Upon receipt of the Approved Application, the application will be reviewed for conformance with all program laws and regulations.

(8) Any funding provided in Section 1859.82.1 shall be offset by any funding previously provided for the project.

Cal. Code Regs. Tit. 2, § 1859.82.1

1. New section filed 8-31-2020 as an emergency; operative 8-31-2020 (Register 2020, No. 36). Emergency expiration extended 60 days (Executive Order N-40-20) plus an additional 60 days (Executive Order N-66-20). A Certificate of Compliance must be transmitted to OAL by 6-29-2021 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 8-30-2020 order, including amendment of subsections (b)(1)(A), (b)(2)(A), (b)(2)(C)3., (b)(4)(B)3.f., (b)(4)(C)1.e., (c)(3)(A) and (c)(3)(C)3., transmitted to OAL 5-5-2021 and filed 6-16-2021; amendments operative 6-16-2021 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 25).

Note: Authority cited: Section 17070.35, Education Code. Reference: Sections 17075.10, 17075.15, 100420, 100620, 100820, 101012 and 101122, Education Code.

1. New section filed 8-31-2020 as an emergency; operative 8/31/2020 (Register 2020, No. 36). Emergency expiration extended 60 days (Executive Order N-40-20) plus an additional 60 days (Executive Order N-66-20). A Certificate of Compliance must be transmitted to OAL by 6-29-2021 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 8-30-2020 order, including amendment of subsections (b)(1)(A), (b)(2)(A), (b)(2)(C)3., (b)(4)(B)3.f., (b)(4)(C)1.e., (c)(3)(A) and (c)(3)(C)3., transmitted to OAL 5-5-2021 and filed 6-16-2021; amendments operative 6/16/2021 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 25).