PROPOSED RULEMAKING
DEPARTMENT OF EDUCATION
[22 PA. CODE CH. 342]
Special Education Services and Programs
[27 Pa.B. 2423] The Department of Education (Department) proposes to amend Chapter 342 (relating to special education services and programs) to read as set forth in Annex A, under the authority of section 13-1372 of the Public School Code of 1949 (24 P. S. § 13-1372) and § 14.3 (relating to standards).
Chapter 342 governs the Commonwealth's operation of special education services and programs for eligible students. The proposed amendment to § 342.34 (relating to extended school year services) establishes definitions, criteria and procedures for considering and documenting the need for extended school year (ESY) services for eligible students under Chapter 14 (relating to special education services and programs).
Purpose
The purpose of amending § 342.34 is to ensure that Commonwealth standards are consistant with Chapter 14, Federal law and judicial decisions affecting ESY services for eligible students, and to provide guidance to local educational agencies when determining whether or not eligible students under Chapter 14 are entitled to ESY services. Definitions and criteria previously only alluded to in § 14.34 (relating to extended school year services) are specified in proposed § 342.34.
The proposed amendment complements amendments being proposed by the State Board of Education under §§ 14.1 and 14.34 (relating to definitions; and extended school year services).
ESY services address the needs of eligible students who lose behavioral patterns or skills (regression) during an interruption in educational programming and who do not recover those behavior patterns or skills (recoupment), making it unlikely that the student will attain or maintain the goals as reflected in the Individualized Education Program (IEP) or make reasonable progress from year to year.
Respecting that not all students receiving special education services and programs need extended services because of regression and failure to recoup, the Department is proposing an amendment to § 342.34 intended to facilitate a local education agency's (LEA) determination as to whom among the students eligible for special education services and programs are also eligible for ESY services and to provide procedures that will ensure that these decisions are reached within the regulatory provisions of the Individuals with Disabilities Education Act, the regulatory provisions under 34 CFR Part 300 and Armstrong v. Kline, 476 F. Supp. 583 (E. D. Pa. 1979).
Failure to promulgate these standards could mean denial of a free appropriate public education to eligible students, loss of student progress, provision of services by LEAs when not required, unnecessary due process hearings and significant loss of funding for noncompliance with Federal regulations.
Affected Parties
The proposed standard will benefit Commonwealth students who are eligible for special education services and programs and who need ESY services to enable them to receive a free appropriate public education. The proposed standard also affects the parents and guardians of these students, as well as all school districts and intermediate units by providing clear policy for implementation and dispute resolution.
Cost and Paperwork Estimates
Costs imposed on State government will be for providing training and technical assistance to school districts and intermediate units in interpreting and implementing the new standards. These efforts are ongoing for various sections of the standards, so the proposed change in standards will not materially affect the Commonwealth's costs.
The number of students entitled to ESY services should not increase significantly as a result of the proposed standard, since each district must consider all eligible students for ESY services if regression and limited recoupment capacity warrant this consideration. Costs may increase slightly because of the demand expectations created by bringing attention to the issue. The ESY services are already being provided to approximately 3,000 students in this Commonwealth. The Department is not aware of students in this Commonwealth who are entitled to ESY services but are not receiving them. As a result of the Department's analysis of fiscal impact, the maximum increase in the number of students served would be less than 10%. Given an average cost of services of $1,968, a 10% increase would result in a total added cost across this Commonwealth of approximately $590,000. These costs are expected to be offset by Federal IDEA Part B funds within the budgets of intermediate units. The fiscal impact on school districts should be minimal.
The proposed amendment to § 342.34 will not substantially alter paperwork, accounting or reporting requirements already in place.
Effective Date
The proposed standard will become effective upon final publication in the Pennsylvania Bulletin.
Sunset Date
The effectiveness of Chapter 342 (including § 342.34) will be reviewed by the Department and State Board of Education every 4 years, in accordance with the Board's policy and practice respecting all regulations and standards promulgated by the Department and Board. Thus, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 7, 1997, the Department submitted a copy of this proposed amendment to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees on Education. In addition to submitting the proposed amendment, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If the Committees have objections to any portion of the proposed amendment, they will notify the Department within 20 days of the close of the public comment period. If IRRC has objections to any portion of the proposed amendment, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the standards, by the Board, the General Assembly and the Governor of objections raised.
Public Comments and Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding this proposal to Peter H. Garland, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333 within 30 days following publication in the Pennsylvania Bulletin. Persons needing additional information regarding this proposal may contact William Penn, Director, Bureau of Special Education, 333 Market Street, Harrisburg, PA 17126-0333 (717) 783-6913.
Persons with disabilities needing an alternative means of providing public comment may make arrangements by calling Dr. Garland at (717) 787-3787 or TDD (717) 787-7367.
Alternative formats of the proposed amendment (such as braille, large print, cassette tape) can be made available to members of the public upon request to Dr. Garland at the telephone and TDD numbers listed in this Preamble.
EUGENE W. HICKOK,
SecretaryFiscal Note: 6-259. (1) General Fund; (2) Year 1997-98 is $ 590,000; (3) 1st Succeeding Year 1998-99 is $ 720,000; 2nd Succeeding Year 1999-00 is $ 720,000; 3rd Succeeding Year 2000-01 is $ 720,000; 4th Succeeding Year 2001-02 is $ 720,000; 5th Succeeding Year 2002-03 is $ 720,000; (4) Fiscal Year 1996-97 $6.08 million; Fiscal Year 1995-96 $6.07 million; Fiscal Year 1994-95 $5.19 million; (7) special education; (8) recommends adoption. The costs are expected to be offset by Federal IDEA Part B funds within the budget of the intermediate units.
Annex A
TITLE 22. EDUCATION
PART XVI. STANDARDS
CHAPTER 342. SPECIAL EDUCATION SERVICES AND PROGRAMS § 342.34. Extended school year services.
[See § 14.34 (relating to extended school year services.]
(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Regression--Reversion to a lower level of functioning evidenced by a measurable decrease in the level of skills or behaviors which occurs as the result of an interruption in educational programming.
Recoupment--Recovery of skills or behavioral patterns, or both, specified on the IEP to a level demonstrated prior to the interruption of educational programming.
(b) Factors such as those listed in this section shall be considered by IEP teams whenever relevant, but no single factor listed in this section is determinative of need for extended school year (ESY) services.
(c) When considering the need for ESY services, the team shall pay particular attention to students with disabilities that are thought of as severe and to IEP goals that are associated with self-sufficiency and independence from caretakers. School districts may not limit their consideration of the need for ESY services to students with particular types or degrees of disability, particular student goals, particular methods of programming provided during the regular school term or the availability of retrospective data on regression and recoupment.
(d) ESY services shall be designed to attain or maintain skills and behaviors relevant to established IEP goals and objectives.
(e) Reliable sources of information regarding a student's educational needs, propensity to progress, recoupment potential and year-to-year progress may include the following:
(1) Progress of goals on consecutive IEPs.
(2) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.
(3) Reports by parents of negative changes in adaptive behaviors or in other skill areas.
(4) Medical or other agency reports indicating degenerative-type difficulties which become exacerbated during breaks in educational services.
(5) Observations and opinions by educators, parents and others.
(6) Results of tests including criterion-referenced tests, curriculum-based assessments, ecological like skills assessments and other appropriate measures.
(f) Documentation that ESY has been considered shall be made on each eligible student's IEP. When determined to be necessary by the IEP team, ESY services shall be reflected on a student's IEP.
[Pa.B. Doc. No. 97-762. Filed for public inspection May 16, 1997, 9:00 a.m.]
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