RULES AND REGULATIONS
DEPARTMENT OF EDUCATION
[22 PA. CODE CH. 342]
Special Education Services and Programs; Extended School Year Services
[28 Pa.B. 1004] The Department of Education (Department) amends § 342.34 (relating to ESY services) to read as set forth in Annex A, under the authority of section 1372 of the Public School Code of 1949 (24 P. S. § 13-1372) and § 14.3 (relating to standards).
Notice of proposed rulemaking was published at 27 Pa.B. 2423 (May 17, 1997).
Purpose
Chapter 342 governs the Commonwealth's operation of special education services and programs for eligible students. Amendments to § 342.34 establish 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).
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.
Public Comments and Responses
The Secretary of Education (Secretary) reviewed comments submitted to the State Board of Education (Board) by two education organizations, three school districts and one law firm. The Secretary 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; from the Senate Education Committee on July 2, 1997; and the Independent Regulatory Review Commission (IRRC) on July 16, 1997.
IRRC recommended that the acronym, ''ESY,'' be defined in § 342.34(a). The definition was added on final-form.
IRRC and at least one public commentator expressed concerns about the clarity of the factors to be considered by IEP teams. To increase clarity, the Secretary added a reference to § 14.34 in subsection (b), because both § 14.34 and § 342.24 (relating to ESY services; and instructional support) mention factors to be considered.
IRRC and at least one public commentator pointed out that the phrase, ''disabilities thought of as severe,'' in subsection (c) is not defined and is therefore open to a host of different interpretations. IRRC recommended that the requirement to pay particular attention to students with disabilities thought of as severe be eliminated. The Secretary did not eliminate this requirement because it is drawn directly from Remedial Order # 2 under Armstrong v. Kline, 476 F. Supp. 583 (E. D. Pa. 1979). However, the Secretary concurs that the phrase, ''disabilities thought of as severe,'' may be interpreted differently. Therefore, specific examples of disabilities thought of as severe were added to subsection (c). These examples were drawn directly from Remedial Order # 2 under Armstrong v. Kline. The Secretary believes that this revision satisfies the expressed concerns while maintaining the court's requirement to pay particular attention to students who are more likely to need ESY services.
IRRC pointed out that subsection (c) lacked clarity because the first sentence prescribed duties for IEP teams and the second sentence prescribed duties for school districts. The Secretary concurs and changed the second sentence on final form. IRRC also suggested that the second sentence be split into its own subsection. The Secretary believes that, for clarity, the two sentences need to be read as a unit, and therefore need to be in one subsection.
During review of the proposed standards in light of public comment, Department staff became aware that a literal reading of subsection (e)(1) was that goals make progress, when, in fact, students make progress on goals. The Secretary modified the subsection for clarity on final form.
IRRC recommended that the phrase, ''other appropriate measures,'' in subsection (e)(6), be made more specific to narrow the range of interpretations. The Secretary concurs with this recommendation and substituted the word ''equivalent'' for ''appropriate'' on final form.
IRRC pointed out a typographical error in subsection (e)(6). ''Ecological like skills'' should have read ''ecological life skills.'' The correction was made on final-form.
IRRC recommended that a cross-reference to subsection (f), regarding documentation of ESY on IEPs, be added to § 342.32, regarding IEPs. The Secretary concurs that a cross-reference is helpful. However, the Secretary believes that the logical place for a cross-reference is in Chapter 14, which specifically requires IEPs to contain statements about ESY if appropriate. Therefore, a cross-reference to both §§ 14.34 and 342.34 was added by the Board to § 14.32(f)(3)(iii).
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 amendment. The cost estimates provided with the proposed amendment 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 Secretary 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 amendment, 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 regulation need to be weighed against the costs of litigation promised by the Armstrong plaintiff's counsel if the amendment was not adopted.
Affected Parties
The 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 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 amendment. These efforts are ongoing for various sections of the amendment, so the amendment will not materially affect the State's costs.
The number of students entitled to ESY services should not increase significantly as a result of this amendment, since each district must consider all eligible students forESY 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 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 that 10%. Given an average cost of services of $1,968, a 10% increase would result in a total added cost across the 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 amendment to § 342.34 will not substantially alter paperwork, accounting or reporting requirements already in place.
Effective Date
This amendment 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 Board 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 the notice of proposed rulemaking published at 27 Pa.B. 2423 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 this final-form regulation, the Department has considered the comments received from IRRC, the Committees and the public.
This final-form regulation was deemed approved by the Committees on December 31, 1997, and was 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 process of promulgating this final-form regulation and for their implementation is William Penn, Director, Bureau of Special Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 783-6913.
Findings
The Department finds that:
(1) Public notice of the intention to adopt this amendment 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 amendment is necessary and appropriate for the administration of the Public School Code of 1949 (24 P. S. §§ 1-101--27-2702).
Order
The Department of Education, acting under authorizing statute orders that:
(a) The regulations of the Department, 22 Pa. Code Chapter 342, are amended by amending § 342.34 to read as set forth in Annex A.
(b) The Secretary 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 Secretary will 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.
EUGENE W. HICKOK,
Secretary(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 6-259 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 22. EDUCATION
PART XVI. STANDARDS
CHAPTER 342. SPECIAL EDUCATION
SERVICES AND PROGRAMS
IEP § 342.34. ESY services.
(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
ESY services--Extended school year services.
IEP--Individual Education Program.
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.
(b) Factors such as those listed in this section and § 14.34 (relating to ESY services) shall be considered by IEP teams whenever relevant, but no single factor is determinative of need for ESY services.
(c) When considering the need for ESY services, the IEP team shall pay particular attention to students with disabilities that are thought of as severe (that is, students with autism/pervasive developmental disorder, serious emotional disturbance, severe levels of mental retardation, degenerative impairments with mental involvement and severe multiple disabilities) and to IEP goals that are associated with self-sufficiency and independence from caretakers. IEP teams may not limit their consideration of 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 on goals in 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 life skills assessments and other equivalent measures.
(f) Documentation that ESY services have 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. 98-295. Filed for public inspection February 20, 1998, 9:00 a.m.]
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