PROPOSED RULEMAKING
STATE BOARD OF EDUCATION
[22 PA. CODE CHS. 14, 16 AND 342]
Gifted Education; Special Education Services and Programs
[28 Pa.B. 4939] The State Board of Education (Board) proposes to delete the gifted education provisions of Chapters 14 and 342 (relating to special education services and programs) and add a new Chapter 16 (relating to gifted education) to read as set forth in Annex A, under the authority of sections 1371, 2601-B and 2602-B of the Public School Code of 1949 (24 P. S. §§ 13-1371, 26-2601-B and 26-2602-B).
These proposed amendments set forth requirements and procedures for the identification of, and delivery of services and programs to, students who are mentally gifted and therefore require specially designed instruction.
Purpose
The existing rules governing gifted education are in Chapters 14 and 342. These chapters govern all children with exceptionalities including those children with disabilities who are protected under the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485). Therefore, under current rules, the disability-specific mandates of Federal law and regulations are intertwined with and become requirements for students who are gifted in this Commonwealth. Many of the disability-specific mandates are unnecessary for the proper education of gifted students, and may limit the ability of local school districts to implement effective gifted education programs. The separation of gifted education from Chapters 14 and 342 does not alter statutory protections for gifted education, nor creates a need to relitigate established case law in this Commonwealth as it pertains to students who are gifted.
The provisions of proposed Chapter 16 are sufficient to govern the gifted education services and programs. Thus, no accompanying standards are being promulgated and sections specific to gifted education in standards Chapter 342 are proposed to be deleted.
Requirements
The proposed amendments maintain most of the requirements from Chapters 14 and 342, with modifications necessary to create a distinction between gifted education and special education. Continuing requirements include provisions for individualized education programs, multidisciplinary team, multidisciplinary evaluation, personnel requirements, placement in private schools, procedural safeguards, exceptions for experimental programs, duties and responsibilities of the Department and planning requirements for gifted education. Major differences between existing regulations and proposed regulations include the following sections:
§ 16.7 (relating to special education). This section clarifies that the new chapter of regulations does not diminish a student's rights under Chapters 14 and 342 or the Individuals with Disabilities Education Act. However, for students who are both gifted and eligible for special education, there is no need for school districts to attempt to implement the requirements of Chapter 16 and Chapters 14 and 342. Chapters 14 and 342 take precedence in these situations, and a student's needs may be met using the procedures therein.
§ 16.21 (relating to general). Similar to §§ 14.21 and 342.21, this section requires each school district to have a system for locating and identifying students who are thought to be gifted and in need of specially designed instruction. The system includes public awareness activities as part of the screening and evaluation process. However, the system is not explicitly prescribed as under §§ 14.22--14.24 and §§ 342.22--342.24 (relating to public awareness; comprehensive screening; and instructional supplies), so that districts have discretion to develop and implement these systems to meet their own unique needs.
§ 16.22 (relating to gifted multidisciplinary evaluation). Similar to §§ 14.25 and 342.25 (relating to multidiciplinary evaluation), this section provides procedures for conducting evaluations of students who are thought to be gifted. This section refers to an evaluation of a gifted student as a gifted multidisciplinary evaluation. To reduce the number of evaluations, parent requests for evaluation are limited to one request per school term.
§ 16.41 (relating to general). Similar to §§ 14.41, 14.42, 342.41 and 342.42, this section sets forth requirements regarding educational placement to ensure that educational placement is based on a gifted student's needs and that a student benefits from that educational placement. To increase local flexibility, this new chapter does not require placement by level of intervention and contains no class size restrictions.
Chapters 14 and 342 are proposed to be amended by deleting gifted education provisions in §§ 14.1, 14.2, 14.24, 14.25, 14.38, 14.67, 342.1, 342.25, 342.38 and 342.42.
Affected Parties
Proposed Chapter 16 will benefit Commonwealth students who are, or thought to be, gifted; their parents; and school districts and other education agencies which must comply with the regulations.
Cost and Paperwork Estimates
The proposed amendments will impose no additional cost or revenue loss to the Commonwealth. The proposed amendments will not require any additional reports or paperwork requirements. None of the regulatory requirements in the proposed chapter are new for school districts, and, in fact, a number of regulatory requirements have been removed or reduced as noted previously. For example, routine reevaluations of the approximately 85,000 identified gifted students currently required every 2 years, cost an average of $250 per student. Eliminating the requirements for reevaluation every 2 years, assuming that reevaluations are requested for 20% of gifted students, could reduce costs to school districts by approximately $16.8 million over 3 years. Moreover, considerable staff time could be redirected to teaching and other services for students.
Effective Date
These proposed amendments will become effective upon final publication in the Pennsylvania Bulletin.
Sunset Date
The effectiveness of proposed Chapter 16 will be reviewed by the Board every 4 years in accordance with the Board's policy and practice respecting all regulations promulgated by the 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 September 23, 1998, the Board submitted a copy of these proposed amendments 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 amendments, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(d) of the Regulatory Review Act, if the Committees have objections to any portion of the proposed amendments, they will notify the Board within 20 days of the close of the public comment period. Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendments, it will notify the Board within 10 days of the close of the Committees' 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 amendments, 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 of the State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333 within 30 days following publication in the Pennsylvania Bulletin.
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 amendments (such as braille, large print, a cassette tape) can be made available to members of the public upon request to Dr. Garland at the telephone and TDD numbers listed previously.
PETER H. GARLAND,
Executive DirectorFiscal Note: 6-266. No fiscal impact; (8) recommends adoption. This proposed rulemaking will result in a significant savings to school districts.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
Subpart A. MISCELLANEOUS PROVISIONS
CHAPTER 14. SPECIAL EDUCATION SERVICES AND PROGRAMS
GENERAL PROVISIONS § 14.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Exceptional student--[A student who meets one of the following criteria:
(i)] An eligible student.
[(ii) A student other than an eligible young child who is gifted as set forth in Chapter 342.
(iii) A student receiving special education and related services as a gifted and talented school-aged person under Chapter 13 prior to July 1, 1990.
(iv) A school age child in a detention home.]
* * * * * § 14.2. Purpose.
* * * * * (d) To provide services and programs efficiently, the Commonwealth will delegate operational responsibility to its school districts. Each school district shall, by direct service or through arrangement with other agencies, provide the following:
* * * * * [(8) An education for gifted students which enables them to participate in acceleration or enrichment programs, or both, as appropriate, and to receive services according to their intellectual and academic abilities.]
* * * * *
SCREENING AND EVALUATION PROCESS § 14.24. Instructional support.
(a) This section does not apply to students [who are thought to be gifted, to students] beyond the sixth grade who are thought to be eligible, to students attending nonpublic schools who are thought to be exceptional or to young children not yet of kindergarten age or not enrolled in a public school program.
* * * * * § 14.25. Multidisciplinary evaluation.
* * * * * (c) A multidisciplinary evaluation shall be initiated if one of the following applies:
* * * * * (5) The student is [thought to be gifted, the student is] beyond the sixth grade and thought to be eligible, the student attends a nonpublic school and is thought to be exceptional or the young child thought to be eligible is not yet of kindergarten age or not enrolled in a public school program.
IEP § 14.38. Planned courses.
Planned courses for exceptional students shall be conducted under Chapter 5 (relating to curriculum), this chapter and Chapter 342 (relating to special education services and programs). Planned courses shall include provisions for:
* * * * * [(5) Development of curricula for gifted students which include acceleration, enrichment, or both, as appropriate.]
PROCEDURAL SAFEGUARDS § 14.67. Independent educational evaluation.
(a) The parents of an eligible student or eligible young child or student or young child thought to be eligible have the right to obtain an independent educational evaluation of the student or young child, subject to subsections (b)--(f). [The parents of students who are gifted or thought to be gifted have the right to obtain an independent educational evaluation of the student subject to subsections (b)--(e).]
* * * * * (Editor's Note: Chapter 16 is proposed to be added. It is printed in regular type to enhance readability.)
CHAPTER 16. GIFTED EDUCATION
GENERAL PROVISIONS Section
16.1. Definitions. 16.2. Purpose. 16.3. Experimental programs. 16.4. Strategic plans. 16.5. Personnel. 16.6. General supervision. 16.7. Special education.
SCREENING AND EVALUATION
16.21. General. 16.22. Gifted multidisciplinary evaluation. 16.23. Gifted multidisciplinary reevaluation.
GIEP
16.31. General. 16.32. GIEP. 16.33. Support services.
EDUCATIONAL PLACEMENT
16.41. General. 16.42. Parental placement in private schools.
PROCEDURAL SAFEGUARDS
16.61. Notice. 16.62. Consent. 16.63. Impartial due process hearing. 16.64. Mediation. 16.65. Confidentiality.
IMPLEMENTATION SCHEDULE
16.71. General.
GENERAL PROVISIONS § 16.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Agency--An intermediate unit, school district, area vocational technical school, State-operated program or facility, or other public or private organization providing educational services to gifted students or students thought to be gifted.
Chapter 5--The State Board of Education regulations as adopted under statutory authority in the School Code.
Educational placement--The overall educational environment in which gifted education is provided to a gifted student.
GIEP--Gifted Individualized Education Program.
GMDT--Gifted Multidisciplinary Team.
Gifted education--Specially designed instruction to meet the needs of a gifted student that is:
(i) Conducted in the classroom or in other settings.
(ii) Provided in an instructional or skill area.
(iii) Provided at no cost to the parents.
(iv) Provided under the authority of a school district, directly, by referral or by contract.
(v) Provided by an agency.
(vi) Individualized to meet the educational needs of the student.
(vii) Reasonably calculated to yield meaningful educational benefit and student progress.
(viii) Provided in conformity with a GIEP.
Gifted Multidisciplinary Evaluation--A systematic process of testing, assessment and other evaluative processes used by a team to develop a recommendation about whether or not a student is gifted or needs gifted education.
Gifted student--A student who is exceptional under section 1371 of the School Code (24 P. S. § 13-1371) because the student meets the definition of mentally gifted in this section, and needs specially designed instruction beyond that required in Chapter 5 (relating to curriculum). The term applies only to students who are of ''school age'' as defined under § 11.12 (relating to school age).
Instructional setting--A classroom or other setting in which gifted students are receiving gifted education.
Mentally gifted--Outstanding intellectual and creative ability the development of which requires specially designed programs or support services, or both, not ordinarily provided in the regular education program. This term includes a person who has an IQ of 130 or higher and when multiple criteria defined by the Department indicate gifted ability. Determination of gifted ability will not be based on IQ score alone. A person with an IQ score lower than 130 may be admitted to gifted programs when other educational criteria in the profile of the person strongly indicate gifted ability. Determination of mentally gifted shall include an assessment by a certified school psychologist.
Parents--A natural or adoptive parent or parents, a guardian or guardians, one or more persons acting as the parent or parents of a student.
Party--A parent or school district.
Regular classroom--A specific instructional grouping within the regular education environment.
Regular education environment--The regular classroom and other instructional settings in which students without a need for gifted education receive instructional programs and the full range of supportive services normally provided to these children. Within the regular education environment, regular and gifted education shall be provided to a gifted student when deemed appropriate by the student's GIEP.
School Code--The Public School Code of 1949 (24 P. S. §§ 1-101--27-2702).
School day--A day in which school is in session.
Screening and evaluation process--The systematic determination of whether or not a student is gifted or needs gifted education.
Social work services in school--Preparing a social or developmental history of a child who is gifted, group and individual counseling with the child and family, working with problems in a child's living situation (home, school and community) that affect the child's adjustment in school, and mobilizing school and community resources to enable the child to learn effectively.
Specially designed instruction--Adaptations or modifications to the general curriculum, instruction, instructional environments, methods, materials or a specialized curriculum for students who are gifted. These adaptations or modifications must go beyond the services and programs that the student would receive as part of a general education and be unique to the educational needs of each student.
Support services--Services required under § 16.33 (relating to support services) to assist a gifted student to benefit from gifted education. Examples of the term include:
(i) Psychological services.
(ii) Social work services.
(iii) Parent counseling and education.
(iv) Counseling services.
(v) Transportation to and from gifted programs to classrooms in buildings operated by the school district.
§ 16.2. Purpose.
(a) This chapter specifies how the Commonwealth will meet its obligations to suspected and identified gifted students who require gifted education to reach their potential. It is the intent of the Board that gifted students be provided with quality gifted education services and programs. Achieving this purpose will require mutual efforts by the Commonwealth, school districts, other agencies and parents.
(b) The Board acknowledges that students who are gifted and therefore need specially designed instruction are considered to be children with exceptionalities under section 1371 of the School Code (24 P. S. § 13-1371(1)). The creation of this chapter and the separation of gifted education from Chapters 14 and 342 is not intended to circumvent the statutory protections afforded to gifted students by the School Code, nor is it the Board's intent to create a need to relitigate case law already established in this Commonwealth pertaining to gifted students. It is the Board's intent to draw a clear distinction between gifted education as required in the Commonwealth and special education as required by Federal law. To accomplish this, the Board has removed or changed references to terms and concepts which are clearly linked to special education as prescribed under the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485). This chapter is intended to strike a proper balance between necessary regulatory protections and maximum local control.
(c) The Commonwealth, through the Department, will provide general supervision of services and programs provided under this chapter.
(d) The Department will disseminate information about and promote the use of promising practices and innovative programs to meet the needs of gifted students.
(e) To provide services and programs efficiently, the Commonwealth will delegate operational responsibility to its school districts. Each school district shall, by direct service or through arrangement with other agencies, provide the following:
(1) Services and programs planned, developed and operated for the identification and evaluation of each gifted student.
(2) Gifted education for each gifted student which is based on the unique needs of the student, not solely on the student's classification.
(3) Gifted education for gifted students which enables them to participate in acceleration or enrichment programs, or both, as appropriate, and to receive services according to their intellectual and academic abilities and needs.
§ 16.3. Experimental programs.
(a) The Secretary may approve exceptions to this chapter for the operation of experimental programs that are anticipated to improve student achievement and that meet certain unique programmatic needs of gifted students. School entities shall submit an annual application for approval of those programs. The application shall:
(1) Include provision for the involvement of parents, administrators and professionals in the design and ongoing review of performance.
(2) Include provisions for annually evaluating the program as to whether it benefits student achievement.
(3) Demonstrate that it has met other criteria established by the Secretary.
(b) When an experimental program has been approved for 3-consecutive years and has resulted in improved student achievement under subsection (a), annual application is not needed for the program to continue to operate.
(c) The Secretary may terminate an experimental program for failing to meet the objectives established in the application or for noncompliance with State law or regulations not specifically waived in the Secretary's approval of the experimental program under subsection (a).
(d) The Secretary will report annually to the Board regarding applications for experimental programs under this section and the disposition of the applications.
§ 16.4. Strategic plans.
(a) Each school district's strategic plan developed under Chapter 5 (relating to curriculum) shall include procedures for the education of all gifted students who are residents of the district under section 1302 of the School Code (24 P. S. § 13-1302). The strategic plan shall be developed to ensure the support of the implementation of plans developed under subsection (b).
(b) Each agency shall provide, as the Department may require, reports of students, personnel and program elements, including the costs of the elements, which are relevant to the delivery of gifted education.
§ 16.5. Personnel.
(a) Professional personnel shall consist of certified individuals responsible for identifying gifted students and providing gifted education in accordance with Article XI of the School Code (24 P. S. §§ 11-1101--11-1192) and this title.
(b) Paraprofessional personnel consist of individuals who work under the direction of professional personnel as defined in this chapter. The duties and training of the paraprofessional staff shall be determined by the employing agency.
(c) A school district and intermediate unit shall provide, under section 1205.1 of the School Code (24 P. S. § 12-1205.1), in-service training for gifted and regular teachers, principals, administrators and support staff persons responsible for gifted education.
§ 16.6. General supervision.
(a) Educational programs for gifted students administered within this Commonwealth are considered to be under the general supervision of the Department and shall meet the provisions of this chapter.
(b) The Department will ensure that appropriate and responsible fiscal oversight and control is maintained over the development and provision of gifted education in accordance with this chapter providing for fiscal accountability and prudent management.
(c) The Board will review this chapter at least every 4 years to ensure consistent interpretation and application of this chapter.
§ 16.7. Special education.
(a) Nothing in this chapter is intended to reduce the protections afforded to students who are eligible for special education as provided for under Chapters 14 and 342 (relating to special education services and programs; and special education services) and the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485).
(b) If a student is determined to be both gifted and eligible for special education, the procedures in Chapter 14 and 342 take precedence.
(c) For students who are gifted and eligible for special education, it is not necessary for school districts to conduct separate screening and evaluations, develop separate IEPs or use separate procedural safeguards processes to provide for a student's needs as both a gifted and an eligible student.
SCREENING AND EVALUATION PROCESS § 16.21. General.
(a) Each school district shall adopt and use a system to locate and identify all students residing within the district's jurisdiction who are thought to be gifted and in need of specially designed instruction.
(b) Each school district shall conduct awareness activities to inform the public of gifted education services and programs and the manner by which to request these services and programs.
(c) Each school district shall determine the student's needs through a screening and evaluation process which meets the requirements of this chapter.
§ 16.22. Gifted multidisciplinary evaluation.
(a) Prior to conducting an initial gifted multidisciplinary evaluation, the school district shall comply with the notice and consent requirements under §§ 16.61 and 16.62 (relating to notice; and consent).
(b) Referral for gifted multidisciplinary evaluation shall be made when the student is suspected of being gifted and not receiving an appropriate education under Chapter 5 (relating to curriculum) and one or more of the following apply:
(1) A request for evaluation has been made by the student's parents under subsection (c).
(2) The student is thought to be gifted because the school district's screening of the student indicates high potential consistent with the definition of mentally gifted or a performance level which exceeds that of other students in the regular classroom.
(3) A hearing officer or judicial decision orders a gifted multidisciplinary evaluation.
(c) Parents who suspect that their child is gifted may request a gifted multidisciplinary evaluation of their child at any time, with a limit of one request per school term. The request shall be in writing. If a parental request is made orally to school personnel, the personnel shall inform the parents that the request shall be made in writing and shall provide the parents with a form for that purpose.
(d) Parental consent or, if consent is not obtained, the order of a hearing officer or court shall be obtained prior to the conduct of any part of an initial gifted multidisciplinary evaluation consistent with §§ 16.61--16.65 (relating to procedural safeguards).
(e) Multidisciplinary evaluations shall be conducted by GMDTs. The GMDT shall be formed on the basis of the student's needs and shall be comprised of the student's parents, a certified school psychologist, persons familiar with the student's educational experience and performance, one or more of the student's current teachers, persons trained in the appropriate evaluation techniques and, when possible, persons familiar with the student's cultural background. A single member of the GMDT may meet two or more of the qualifications specified in this subsection.
(f) Gifted multidisciplinary evaluations shall be sufficient in scope and depth to investigate information relevant to the student's suspected giftedness, including academic functioning, learning strengths and educational needs.
(g) The multidisciplinary evaluation process shall include information from the parents or others who interact with the student on a regular basis, and may include information from the student if appropriate.
(h) The following protection-in-evaluation measures shall be considered when performing an evaluation of students suspected of being exceptional:
(1) No one test or type of test may be used as the sole criterion for determining that a student is or is not gifted.
(2) Intelligence tests yielding an IQ score may not be used as the only measure of aptitude for students of limited English proficiency, or for students of racial-, linguistic- or ethnic-minority background.
(3) Tests and similar evaluation materials used in the determination of giftedness shall be:
(i) Selected and administered in a manner that is free from racial and cultural bias and bias based on disability.
(ii) Selected and administered so that the test results accurately reflect the student's aptitude, achievement level or whatever other factor the test purports to measure.
(iii) Professionally validated for the specific purpose for which they are used.
(iv) Administered by certified professional employes or certified school psychologists under instructions provided by the producer of the tests and sound professional practice.
(v) Selected and administered to assess specific areas of educational need and ability and not merely a single general IQ.
(i) The GMDT shall prepare a written report which brings together the information and findings from the evaluation or reevaluation concerning the student's educational needs and strengths. The report shall make recommendations as to whether the student is gifted and in need of specially designed instruction, shall indicate the bases for those recommendations, and shall indicate the names and positions of the members of the GMDT.
(j) To recommend that a student who has been evaluated is a gifted student, the GMDT shall conclude that the student needs specially designed education and meets the criteria for eligibility as defined in § 16.1 (relating to definitions).
(k) The following timeline applies to the completion of gifted multidisciplinary evaluations:
(1) Each district shall establish and implement procedures to complete a gifted multidisciplinary evaluation for a student referred for evaluation within 45 school days after receiving parental permission for an initial evaluation, after notifying the parents of a reevaluation or after receiving an order of a court or hearing officer to conduct a multidisciplinary evaluation.
(2) An evaluation report shall be completed within 10 school days after completion of the gifted multidisciplinary evaluation.
(3) Within 5 school days after its completion, a copy of the evaluation report shall be delivered to the parents of the student.
§ 16.23. Gifted multidisciplinary reevaluation.
(a) Gifted students shall be reevaluated before a change in educational placement is recommended for the student and when the conditions under § 16.22(b)(1) or (3) (relating to gifted multidisciplinary evaluations) are met. In addition, gifted students may be reevaluated at any time under a recommendation by the GIEP team.
(b) Reevaluations shall be developed in accordance with the requirements concerning evaluation in this chapter.
(c) Reevaluations shall include a review of the student's GIEP, a determination of which instructional activities have been successful, and recommendations for the revision of the GIEP.
GIEP § 16.31. General.
(a) A GIEP is a written plan describing the education to be provided to a gifted student. The initial GIEP shall be based on and be responsive to the results of the evaluation and shall be developed and implemented in accordance with this chapter.
(b) If a gifted student moves from one school district in this Commonwealth to another, the new district shall implement the existing GIEP to the extent possible or shall provide the services and programs specified in an interim GIEP agreed to by the parents until a new GIEP is developed and implemented in accordance with this section and §§ 16.32 and 16.33 (relating to GIEP; and support services) and until the completion of due process proceedings under §§ 16.61--16.65 (relating to procedural safeguards).
(c) Every student receiving gifted education provided for in a GIEP developed prior to ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal) shall continue to receive the gifted education under that GIEP until the student's GIEP is revised.
(d) Every student receiving gifted education prior to ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal) shall continue to receive gifted education unless a GIEP team determines that the student no longer needs gifted education.
§ 16.32. GIEP.
(a) Each school district shall establish and implement procedures to appoint a GIEP team to review the recommendations of the GMDT and, if the GIEP team determines a student is gifted, to develop a GIEP for the student. The GIEP shall be developed at the GIEP meeting and based on data and information presented at that meeting.
(b) The GIEP team, in accordance with the requirements of this chapter shall, based upon the evaluation report, develop an initial GIEP for a student it determines to be a gifted student, and arrive at a determination of educational placement. Revisions to GIEPs, changes in educational placement or continuation of educational placement for a student determined to be a gifted student shall be made by the GIEP team based upon a review of the student's GIEP and instructional activities which have been successful, as well as on information in the most recent evaluation.
(c) Each GIEP team shall include persons who meet the following qualifications:
(1) One or both of the student's parents.
(2) The student, if 16 years of age or older, or if younger and the parents choose to have the student participate.
(3) A representative of the district, who will serve as the chairperson of the GIEP team, who is knowledgeable about the availability of resources of the district, and who is authorized by the district to commit those resources.
(4) One or more of the student's current teachers.
(5) Other individuals at the discretion of either the parents or the district.
(d) The school district shall establish and implement procedures designed to ensure that the parents of the gifted student are offered the opportunity to be present at each GIEP team meeting. These procedures shall include the following: documented phone calls, letters and certified letters with return receipts. Agencies shall maintain documentation of their efforts to encourage parents to attend. By including them in the invitation, the following shall be considered reasonable efforts to ensure parent participation in the GIEP meeting:
(i) The purpose, time and location of the meeting.
(ii) The names of the persons expected to attend.
(iii) The educational rights available to protect the student and parent, in language which is clear and fully explains all rights.
(iv) That a determination will be made at the meeting as to whether or not the student is gifted.
(v) That if the student is determined to be gifted, a GIEP will be developed.
(vi) Notifying the parent and other persons who will be attending early enough to ensure that the parent will have an opportunity to attend.
(e) The GIEP of each gifted student shall be based on the GMDT's recommendations and shall contain the following:
(1) A statement of the student's present levels of educational performance.
(2) A statement of annual goals and short-term learning outcomes which are responsive to the learning needs identified in the evaluation report.
(3) A statement of the specially designed instruction and support services to be provided to the student.
(4) Projected dates for initiation and anticipated duration of gifted education.
(5) Appropriate objective criteria, assessment procedures and timelines for determining, on at least an annual basis, whether the goals and learning outcomes are being achieved.
(6) The names and positions of GIEP team participants and the date of the meeting.
(f) A copy of the GIEP shall be provided to the parents, along with a notice of parental rights under §§ 16.61--16.65 (relating to procedural safeguards).
(g) The following timeline governs the preparation and implementation of GIEPs:
(1) A GIEP shall be developed within 30 calendar days after issuance of a GMDT's written report.
(2) The GIEP of each student shall be implemented in accordance with § 16.62(5) (relating to consent).
(3) GIEP team meetings shall be convened at least annually, or more frequently if conditions warrant, as well as following an evaluation or reevaluation. A GIEP team meeting shall also be convened at the request of a GIEP team member, the parent, the student or the school district.
§ 16.33. Support services.
(a) The GIEP team, during the development, review or revision of a GIEP, shall determine whether the gifted student needs one or more support services.
(b) The GIEP team shall conclude that transportation to and from school or to and from a site other than the school, psychological services, social work services, parent counseling and education, or another service is a support service if the GIEP determines that one of the following criteria has been met:
(1) The service is an integral part of an educational objective of the student's GIEP, without which the GIEP cannot be implemented.
(2) The service is needed to ensure the student benefits from or gains access to a gifted education program.
EDUCATIONAL PLACEMENT § 16.41. General.
(a) The GIEP team shall base educational placement decisions on the gifted student's needs.
(b) Districts may use administrative and instructional strategies and techniques in the provision of gifted education for gifted students which do not require, but which may include, categorical grouping of students. The placement shall:
(1) Enable the provision of appropriate specially designed instruction based on the student's need and ability.
(2) Ensure that the student is able to benefit from the rate, level and manner of instruction.
(3) Provide opportunities to participate in acceleration or enrichment, or both, as appropriate for the student's needs.
(c) Districts shall adopt board policies relating to caseloads and class sizes for gifted students which:
(1) Ensure the ability of assigned staff to provide the services required in each gifted student's GIEP.
(2) Address all the educational placements for gifted students used by the district.
(3) Limit the total number of gifted students which can be on an individual gifted teacher's caseload to a maximum of 75 students.
(d) Gifted educational placement may not be based on one or more of the following:
(1) Lack of availability of placement alternatives.
(2) Lack of availability or efforts to make educational or support services available.
(3) Lack of staff qualified to provide the services set forth in the GIEP.
(4) Lack of availability of space or of a specific facility.
§ 16.42. Parental placement in private schools.
(a) This chapter does not limit the right of parents to have their gifted children educated at private schools completely at private expense.
(b) The home education program of a gifted child shall be governed by sections 1327 and 1327.1 of the School Code (24 P. S. §§ 13-1327 and 13-1327.1).
PROCEDURAL SAFEGUARDS § 16.61. Notice.
(a) A school district shall document the provision of written notice to the parents of a gifted student at least 10 school days prior to one or more of the following events:
(1) The school district proposes to conduct a gifted multidisciplinary evaluation or reevaluation of the student.
(2) The school district proposes or refuses to initiate or change the identification, evaluation or educational placement of the student, or proposes or refuses to make significant changes in the GIEP.
(b) A change in the identification, evaluation, educational placement or GIEP of a gifted student may not be made during the pendency of an administrative or judicial proceeding unless agreed to by the parties to the proceeding.
(c) The content of notices to the parents shall be written in language understandable to the general public. If necessary, the content of notices shall be communicated orally in the native language or directly so that the parents understand the content of the notices.
(d) The notice shall include:
(1) A description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action and a description of options the district considered and the reasons why those options were rejected.
(2) A description of each evaluation procedure, type of test, record or report used as a basis for the action.
(3) A description of other factors relevant to the district's action.
(4) A full explanation of the procedural safeguards, including the right to an impartial hearing available to the student or the parents under this chapter.
(e) The notice shall inform the parents of the following:
(1) The addresses and telephone numbers of various organizations which are available to assist in connection with the hearing.
(2) The timelines involved in conducting an evaluation, developing a GIEP, and initiating a hearing.
(3) An outside evaluation submitted by the parents shall be considered.
(4) The information in § 16.63 (relating to impartial due process hearing).
§ 16.62. Consent.
The district shall document that written parental consent is obtained prior to:
(1) Conducting an initial multidisciplinary evaluation.
(2) Initially placing a gifted student in a gifted program.
(3) Disclosing to unauthorized persons information identifiable to a gifted student.
(4) When completed, the GIEP provided for in § 16.32 (relating to GIEP) shall be presented to the parents, along with a notice of recommended assignment signed by the school district superintendent provided for in § 16.61 (relating to notice) and a notice of parental right to an impartial due process hearing under § 16.63 (relating to impartial due process hearing). The notice shall be presented to the parents in person at the conclusion of the GIEP conference or by certified mail within 5 calendar days after the completion of the GIEP conference.
(5) The parents shall have 10 calendar days to respond to a notice of recommended assignment sent by mail or 5 calendar days to respond to a notice presented in person at the conclusion of a GIEP conference. If the parents receive the notice in person and approve the recommended assignment within 5-calendar days, the school district may not implement the GIEP for at least 5-calendar days, to give the parents an opportunity to notify the district within the 5-day period of a decision not to approve the recommended assignment.
§ 16.63. Impartial due process hearing.
(a) Parents may request an impartial due process hearing concerning the identification, evaluation or educational placement of, or the provision of a gifted education to, a student who is gifted or who is thought to be gifted if the parents disagree with the school district's identification, evaluation or placement of, or the provision of a gifted education to the student.
(b) A school district may request a hearing to proceed with an initial evaluation or an initial educational placement when the district has not been able to obtain consent from the parents or in regard to a matter under subsection (a).
(c) The hearing shall be conducted by and held in the local school district at a place reasonably convenient to the parents. At the request of the parents, the hearing may be held in the evening. These options shall be set forth in the form provided for requesting a hearing.
(d) The hearing shall be an oral, personal hearing and shall be open to the public unless the parents request a closed hearing. If the hearing is open, the decision issued in the case, and only the decision, shall be available to the public. If the hearing is closed, the decision shall be treated as a record of the student and may not be available to the public.
(e) The decision of the hearing officer shall include findings of fact, a discussion and conclusions of law. Although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.
(f) The hearing officer shall have the authority to order that additional evidence be presented.
(g) A written transcript of the hearing shall, upon request, be made and provided to parents at no cost.
(h) Parents may be represented by any person, including legal counsel.
(i) A parent or a parent's representative shall be given access to educational records, including any tests or reports upon which the proposed action is based.
(j) A party may prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least 5 days before the hearing.
(k) A party has the right to compel the attendance of and question witnesses who may have evidence upon which the proposed action might be based.
(l) A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.
(m) The decision of the impartial hearing officer may be appealed to a panel of three appellate hearing officers. The panel's decision may be appealed further to a court of competent jurisdiction. In notifying the parties of its decision, the panel shall indicate the courts to which an appeal may be taken.
(n) The following applies to coordination services for hearings and to hearing officers:
(1) The Secretary may contract for coordination services in support of hearings conducted by local school districts. The coordination services shall be provided on behalf of school districts and may include arrangements for stenographic services, arrangements for hearing officer services, scheduling of hearings and other functions in support of procedural consistency and the rights of the parties to hearings.
(2) If a school district chooses not to utilize the coordination services under paragraph (1), it may conduct hearings independent of the services if its procedures similarly provide for procedural consistency and ensure the rights of the parties. In the absence of its own procedures, a school district which receives a request for an impartial due process hearing shall forward the request to the agency providing coordination services under paragraph (1) without delay.
(3) A hearing officer may not be an employe or agent of a school district in which the parents or student resides, or of an agency which is responsible for the education or care of the student. A hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.
(o) The following timeline applies to due process hearings:
(1) A hearing shall be held within 30-calendar days after a parent's or school district's initial request for a hearing.
(2) The hearing officer's decision shall be issued within 45-calendar days after the parent's or school district's request for a hearing.
(p) Each school district shall keep a list of the persons who serve as hearing officers. The list shall include the qualifications of each hearing officer. School districts shall provide parents with information as to the availability of the list and shall make copies of it available upon request.
§ 16.64. Mediation.
(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Joint session--A stage of the mediation conference when the mediator meets with the parties and participants together and each party is given an uninterrupted opportunity to present the issues and concerns. The mediator shall help the parties to arrive at a satisfactory resolution to the conflict by encouraging parties to explore the possible solutions.
Mediation--A process whereby parents and agencies involved in a gifted education dispute may obtain the assistance of an impartial mediator in an attempt to reach a mutually agreeable settlement of issues in dispute.
Mediation agreement--A written record of agreement reached by the parties.
Mediation conference--A structured, but informal meeting of the parties and participants with a mediator. The purpose of the conference is to develop a mutually acceptable, written agreement that is binding on the parties.
Mediator--An impartial, neutral person who helps parties involved in a conflict to develop their own solutions to the dispute. The term does not include a person who makes decisions about the conflict for the parties.
Participants--Other persons appearing at the mediation conference on behalf of either party, such as other family members and specialists.
Parties--The parents and designated agency personnel involved in the conflict. Each party shall come to the mediation conference with the authority to commit resources to the resolution agreed upon by the parties.
Private session (caucus)--A private meeting between the mediator and only one of the parties to further clarify that party's position and to explore possible solutions to the conflict. The mediator may not share information from the private session without consent of the party.
(b) If a dispute is resolved through mediation, a written agreement shall be prepared and placed in the child's education record. The agreement shall also be incorporated into the GIEP, if appropriate.
(c) During a mediation conference the mediator shall meet with the parties together in a joint session and individually in private sessions.
(d) Discussions occurring during the mediation session shall be confidential, and no part of the mediation conference shall be recorded.
(e) The mediator may not be called as a witness in future proceedings.
(f) The designated agency involved in the dispute shall send a representative who has the authority to commit resources.
(g) The written mediation agreement is not a confidential document and shall be incorporated into the student's GIEP and is binding on the parties.
(h) The mediation agreement shall be enforceable by the Department.
(i) A GIEP team shall be convened, within 20 school days following the mediation agreement, to incorporate the mediation agreement into the GIEP.
(j) When the mediation conference results in a resolution of the dispute, each party shall receive an executed copy of the agreement at the conclusion of the mediation conference.
(k) Mediation may not be used to deny or delay a party's right to a due process hearing.
§ 16.65. Confidentiality.
Each agency shall protect the confidentiality of personally identifiable information regarding a gifted student or a student thought to be gifted in accordance with section 13(a) of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C.A. § 1232g), 34 CFR Part 99 (relating to family educational rights and privacy) and Chapter 12 (relating to students) and other applicable law.
IMPLEMENTATION § 16.71. General.
(a) Students receiving gifted education under Chapters 14 and 342 (relating to special education; and special education services and programs) prior to ______ (Editor's Note: The blank refers to the effective date of adoption of this proposal) are entitled to continue to receive gifted education under this chapter.
(b) School districts and agencies shall continue to implement gifted education for students described in subsection (a) until the students have graduated from high school or would no longer be eligible under this chapter.
(c) The Department will assure that this section is implemented.
PART XVI. STANDARDS
CHAPTER 342. SPECIAL EDUCATION SERVICES AND PROGRAMS § 342.1. Definitions.
* * * * * (b) Additional definitions. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * [Mentally gifted--Outstanding intellectual and creative ability the development of which requires special services and programs not ordinarily provided in the regular education program. This term includes a person who has an IQ of 130 or higher and when multiple criteria as set forth in Department Guidelines indicate gifted ability. Determination of gifted ability will not be based on IQ score alone. A person with an IQ score lower than 130 may be admitted to gifted programs when other educational criteria in the profile of the person strongly indicate gifted ability. Determination of mentally gifted shall include a full assessment and comprehensive report by a public school psychologist specifying the nature and degree of the ability.]
[(c) Eligible young child. The classification of eligible young child includes all of the classifications listed in this section except mentally gifted.]
[(d)] (c) * * *
SCREENING AND EVALUATION PROCESS § 342.25. Multidisciplinary evaluation.
(a) Referral for multidisciplinary evaluation shall be made when special education referral criteria have been met and are in accordance with § 14.25 (relating to multidisciplinary evaluation). Referral for multidisciplinary evaluation is indicated when the student is suspected of being exceptional and one or more of the following exist:
[(1) The instructional assessment of the student indicates high potential consistent with the definition of mentally gifted or a performance level which exceeds that of other students in the regular classroom.
(2)] (1) * * *
[(3)] (2) * * *
* * * * *
IEP § 342.38. Planned courses.
(a) Curricula for exceptional students shall be designed to:
* * * * * [(5) Provide higher level thinking skills and advanced content acceleration and enrichment for the gifted.]
* * * * *
EDUCATIONAL PLACEMENT § 342.42. Educational placement.
* * * * * (h) School districts may establish classes for exceptional students in the following categories:
(1) [Academic support.]
[(i) Gifted support class. A class for exceptional students identified as mentally gifted.
(ii)] Learning support class. A class for exceptional students whose primary identified need is academic learning.
* * * * * (j) Class sizes and class loads for assignments for special education services and programs shall conform to the following table:
Caseload and Class Size for Special Education This chart presents the caseload allowed on a single teacher's rolls; the number in parenthesis is the maximum number of exceptional students in the room with the teacher at one time.
Type of Service Itinerant Resource Part-time Full-time Academic Support Class: [Gifted Support 15-75(15) 12-50(15) 10-30(15) 10-15(15)] * * * * *
[Pa.B. Doc. No. 98-1603. Filed for public inspection October 2, 1998, 9:00 a.m.]
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