RULES AND REGULATIONS
Title 22--EDUCATION
STATE BOARD OF EDUCATION
[22 PA. CODE CH. 14]
Special Education Services and Programs; Extended School Year Services
[28 Pa.B. 1002] The State Board of Education (Board) amends Chapter 14 (relating to special education services and programs) under authority of sections 1372, 2603-B and 2604-B of the Public School Code of 1949 (24 P. S. §§ 13-1372, 26-2603-B and 26-2604-B).
Notice of proposed rulemaking was published at 27 Pa.B. 2428 (May 17, 1997) with an invitation to submit written comments within 30 days.
Purpose
Chapter 14 governs the Commonwealth's operation of special education services and programs for eligible students. The amendments to §§ 14.1 and 14.34 (relating to definitions; and ESY services) define extended school year (ESY) services for eligible students and clarify requirements for the identification of students in need of ESY and the program itself.
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 reflected in the Individualized Education Program (IEP) or make reasonable progress from year to year.
Public Comments and Responses
The Board received comments from two education organizations, three school districts and one law firm. The Board considered the public comments received during the public comment period, as well as additional public comments received after the close of the comment period. Comments were received from the House Education Committee on July 3, 1997; the Senate Education Committee on July 2, 1997; and the Independent Regulatory Review Commission (IRRC) on July 16, 1997.
IRRC recommended defining the terms ''regression'' and ''recoupment'' in § 14.1. The Board concurs and the definitions are added on final-form.
In its comments to the Department of Education (Department) regarding a proposed amendment to Chapter 342 (relating to special education services and programs), IRRC recommended adding a cross reference to ESY services in existing § 342.32 (relating to ISP), which outlines IEP development. The Board concurs with this recommendation, and the Department placed a cross reference in § 14.32(f)(3)(iii).
IRRC recommended moving the proposed revisions of § 14.34(d) to subsection (a) and incorporating the subheading ''Scope'' to the new subsection (a). Also, IRRC recommended adding a citation to the specific Federal laws and regulations referenced in this subsection. The Board made these changes on final-form.
IRRC and one public commentator suggested that the phrase ''other factors'' in proposed § 14.34(a) was vague. In response, the Board added three examples of other factors in § 14.34(c). These factors were drawn directly from Remedial Order # 2 under Armstrong v. Kline, 476 F. Supp. 583 (E. D. Pa. 1979). To accommodate the addition of subsection (c), the Board moved the last sentence from proposed subsection (a) to a separate subsection, § 14.34(d).
IRRC recommended rewording of the last sentence in proposed § 14.34(b) for clarity. This was done on final-form.
IRRC, the House and Senate Education Committees, and some public commentators expressed concerns about the accuracy of the analysis of the fiscal impact of the proposed amendments. The cost estimates provided with the proposed amendments were developed using predictions from survey responses from all 29 intermediate units and 22 urban school districts, as well as analysis of data submitted annually by intermediate units to the Department regarding the number of children receiving ESY services. Given the difficulty in predicting the outcome of case-by-case decisionmaking by IEP teams in 501 school districts, the Board is satisfied with the original cost estimates and does not agree that additional fiscal analysis would produce more reliable predictive conclusions. As stated with the proposed amendments, the costs of ESY services are expected to be offset by Federal funds within the Individuals with Disabilities Education Act (IDEA) Part B subgrants of the intermediate units. Finally, concerns about the fiscal impact of the amendments need to be weighed against the costs of litigation promised by the Armstrong plaintiff's counsel if the amendment were not promulgated.
Affected Parties
These amendments 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 amendments also affect the parents and guardians of these students, as well as all school districts and intermediate units by providing clear policy for ESY services.
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 amendments and accompanying revised standards under Chapter 342. These efforts are ongoing for various sections of the regulations, so the changes in amendments will not materially affect the State's costs.
The number of students entitled to ESY services should not increase significantly as a result of these amendments, 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. ESY services are already being provided to approximately 3,000 students in this Commonwealth. The Board 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 that 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.
Amendments to §§ 14.1, 14.32 and 14.34 will not substantially alter paperwork, accounting or reporting requirements already in place.
Effective Date
These amendments will become effective upon final publication in the Pennsylvania Bulletin.
Sunset Date
The effectiveness of Chapter 14 (including §§ 14.1 and 14.34) will be reviewed by the Board every 4 years, in accordance with the Board's policy and practice respecting 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 Board submitted a copy of the notice of proposed rulemaking published at 27 Pa.B. 2428 to IRRC and to the Chairpersons of the House and Senate Committees on Education for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Board has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the Committees on December 31, 1997, and were approved by IRRC on January 13, 1998, in accordance with section 5(c) of the Regulatory Review Act.
Contact Person
The official responsible for information on the Board's process of promulgating these final-form regulations is Dr. Peter H. Garland, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 787-3787. The official responsible for implementation of these final-form regulations is William Penn, Director, Bureau of Special Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 783-6913.
Findings
The Board finds that:
(1) Public notice of the intention to adopt these amendments was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments are necessary and appropriate for the administration of the Public School Code of 1949 (24 P. S. §§ 1-101--27-2702).
Order
The Board, acting under the authorizing statute, orders that:
(a) The regulations of the Board, 22 Pa. Code Chapter 14, are amended by amending §§ 14.1, 14.32 and 14.34 to read as set forth at Annex A, with ellipses referring to the existing text of the regulations.
(b) The Executive Director will submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Executive Director of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order is effective upon final publication in the Pennsylvania Bulletin.
PETER H. GARLAND,
Executive Director(Editor's Note: The amendment of § 14.32 was not included in the proposal at 27 Pa.B. 2428.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 28 Pa.B. 588 (January 31, 1998).)
Fiscal Note: Fiscal Note 6-260 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
CHAPTER 14. SPECIAL EDUCATION SERVICES AND PROGRAMS § 14.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * ESY--Extended school year services--Special education or related services provided outside of a standard schedule of school days within a school term, for the purpose of ensuring the provision of a free appropriate public education to an eligible student.
* * * * * Recoupment--Recovery of skills or behavioral patterns, or both, specified on the IEP to a level demonstrated prior to the interruption of educational programming.
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.
* * * * * § 14.32. IEP.
* * * * * (f) The IEP of each exceptional student shall contain the following:
* * * * * (3) A statement of the specific special education services and programs and related services to be provided to the student, including if appropriate the following:
* * * * * (iii) ESY services as provided for in §§ 14.34 and 342.34 (relating to ESY services).
* * * * * § 14.34. ESY services.
(a) This section may not be construed or applied to require more than is required by Federal law and regulations, particularly the requirements of the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485) and its implementing regulations.
(b) An eligible student is entitled to ESY services if regression caused by interruption in educational programming and limited recoupment capacity, or other factors, makes it unlikely that the student will attain or maintain skills and behavior relevant to established IEP goals and objectives.
(c) Examples of other factors in addition to regression and recoupment include:
(1) The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
(2) The extent to which a skill or behavior is particularly crucial to reaching the goals of self-sufficiency and independence from caretakers.
(3) The extent to which successive interruptions in educational programming reduce a student's motivation and trust and may lead to an irreversible withdrawal from the learning process.
(d) School districts are responsible for considering the need for ESY services for each eligible student, including each student placed by the district in an approved private school or other placement site not operated by the school district.
(e) Consideration of the need for ESY services shall occur at the IEP team meeting to be convened at least annually, or more frequently if conditions warrant consistent with § 14.32(i)(3) (relating to IEP). Consideration means that ESY services are raised and discussed at the IEP team meeting. In making a determination that a student is eligible for ESY services, the IEP team shall rely on criteria in Chapter 342 (relating to special education services and programs) and applicable judicial decisions.
(f) The need for ESY services will not be based on any of the following:
(1) The desire or need for day care or respite care service.
(2) The desire or need for a summer recreation program.
(3) The desire or need for other programs or services which, while they may provide educational benefit, are not required to ensure the provision of a free appropriate public education.
[Pa.B. Doc. No. 98-294. Filed for public inspection February 20, 1998, 9:00 a.m.]
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