PROPOSED RULEMAKING
DEPARTMENT OF
EDUCATION
[22 PA. CODE CH. 711]
Charter School Services and Programs for Children with Disabilities
[30 Pa.B. 3463] The Department of Education (Department) proposes to add Chapter 711 (relating to charter school services and programs for children with disabilities) to read as set forth at Annex A, under the authority of sections 17-1701-A--17-1732-A of the Public School Code of 1949 (24 P. S. §§ 17-1701-A--17-1732-A) (act).
Purpose
Under section 17-1732-A(c)(2) of the act, the Secretary has the authority and the responsibility to ensure that charter schools comply with Federal laws and regulations governing children with disabilities, and further provides that the Secretary shall promulgate regulations to implement this provision. The missions, programs and curricula of charter schools are to promote the inclusion of all children. The proposed regulations can reduce the cost by providing children with a more flexible educational environment that can respond to a child's educational needs. These proposed regulations are promulgated to facilitate compliance with Federal statute, regulation and court decrees that apply in this Commonwealth to children with disabilities. The purposes of proposed Chapter 711 are to develop procedures for special education in charter schools and adopt by reference applicable Federal regulations. The proposed regulations will assist charter schools with compliance with the Federal laws, regulations and court decrees as they apply to children with disabilities.
Requirements of the Regulations
These proposed regulations define terms related to special education for charter schools and outline the Department's authority in its duties to assure charter schools' compliance with the Federal laws, regulations and court decrees as they apply to children with disabilities. These proposed regulations adopt provisions of specific Federal law (IDEA/504) that apply to special education in charter schools. These proposed regulations also set forth standards applicable to enrollment criteria, timelines for transfer of records between schools and payments for special education between the school district of residence and the charter schools.
Proposed Chapter 711 contains requirements for child find duties in charter schools as well as evaluation and reevaluation of students, Individualized Education Programs (IEP), transportation, educational placement and extended school year. The procedural safeguards section outlines requirements for suspension and expulsion and the charter school's access to the due process system.
Cost and Paperwork Estimates
The proposed regulations will ensure compliance with the Federal laws, regulations and court decrees as they apply to children with disabilities while not adding to the cost of providing special education services in charter schools.
Charter schools are local education agencies that must provide a Free Appropriate Public Education (FAPE) to all who enroll. The missions and programs of charter schools are diverse, often allowing children to make educational progress without special education services. By following Federal statutes, regulations and court decrees, charter schools have the opportunity to minimize redundant paperwork and reroute their financial resources toward programs and services for children who need them. Because charter schools are local education agencies that are supervised by the Department, they will have access to systems already created and developed by the Department and therefore will not need to create and develop their own. Charter schools will be able to access staff training through Intermediate Units and the Instructional Support Centers. Charter schools and parents will have access to the due process and complaint system that has already been developed by the Department to resolve conflicts. Reliance upon proven systems already in place will reduce the cost and paperwork associated with the staff development and complaint management systems that are required for compliance with the Federal laws, regulations and court decrees as they apply to children with disabilities.
Effective Date
These proposed regulations will become effective upon final publication in the Pennsylvania Bulletin.
Sunset Date
The Department will review the effectiveness of Chapter 711 every 4 years; therefore, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 27, 2000, the Department submitted a copy of the proposed regulations 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 regulations, 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.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed regulations, it will notify the Department within 10 days from the close of the Committee's review 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 regulations, by the Department, 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 proposed Chapter 711 to Dr. Dale Baker, Office of Educational Initiatives, 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 Dr. Dale Baker.
Persons with disabilities needing an alternative means of providing public comment may make arrangements by calling Dr. Dale Baker at (717) 705-0930 or TDD at (717) 783-8445.
Alternative formats of these proposed regulations (for example, Braille, large print, or cassette tape) can be made available to members of the public upon request to Dr. Dale Baker.
EUGENE W. HICKOK,
SecretaryFiscal Note: 6-269. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 22. EDUCATION
PART XX. CHARTER SCHOOLS
CHAPTER 711. CHARTER SCHOOL SERVICES AND PROGRAMS FOR CHILDREN WITH DISABILITIES
GENERAL PROVISION AND SUPERVISION Sec.
711.1. Definitions. 711.2. Purpose and intent. 711.3. Incorporation of Federal laws. 711.4. Supervision. 711.5. Personnel. 711.6. Annual report. 711.7. Enrollment. 711.8. Education records. 711.9. Payments.
IDENTIFICATION AND EVALUATION
711.21. Child find. 711.22. Evaluation and reevaluation.
IEP
711.41. IEP. 711.42. Transportation. 711.43. Educational placement. 711.44. ESY.
PROCEDURAL SAFEGUARDS
711.61. Suspension and expulsion. 711.62. Procedural safeguards.
GENERAL PROVISION AND SUPERVISION § 711.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:
Act--The Charter School Law (24 P. S. §§ 17-1701-A--17-1732-A).
At-risk student--A student at risk of educational failure because of limited English proficiency, poverty, community factors, truancy, academic difficulties or economic disadvantage.
Charter school--An independent public school established and operated under a charter granted under the act. The term also includes regional charter schools as defined by the act.
Child with a disability--As defined in 34 CFR 300.7 (relating to child with a disability).
Department--The Department of Education of the Commonwealth.
ESY--Extended school year.
FAPE--Free appropriate public education.
IDEA--Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485).
IEP--Individualized education program.
SEA--State education agency--The Department of Education of the Commonwealth.
Secretary--The Secretary of the Department of Education.
Section 504--Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.A. § 794).
§ 711.2. Purpose and intent.
(a) This chapter specifies how the Commonwealth, through the Department, will meet its obligation to ensure that charter schools comply with the IDEA and its implementing regulations in 34 CFR Part 300 (relating to assistance to states for the education of children), or Section 504 and its implementing regulations in 34 CFR Part 104 (relating to nondiscrimination on the basis of handicap in programs and activities receiving federal financial assistance).
(b) This chapter does not prevent a charter school and a school district from entering into agreements regarding the provision of services and programs to comply with this chapter, whether or not the agreements involve payment for the services and programs by the charter school.
§ 711.3. Incorporation of Federal laws.
(a) Charter schools assume the duty to ensure that a FAPE is available to a child with a disability in compliance with the IDEA and its implementing regulations in 34 CFR Part 300 (relating to assistance to states for the education of children) or Section 504 and its implementing regulations in 34 CFR Part 104 (relating to nondiscrimination on the basis of handicap in programs and activities receiving federal financial assistance).
(b) Except as expressly provided in this chapter, 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities) is incorporated by reference as follows: §§ 300.4--300.26, 300.28, 300.29, 300.300, 300.302--300.309, 300.312, 300.313, 300.320, 300.321, 300.340, 300.342--300.346, 300.347(a) and (b), 300.348--300.350, 300.403, 300.500--300.515, 300.519--300.529, 300.531--300.536, 300.540--300.543, 300.550--300.553, 300.560--300.573 and § 300.576.
(c) Except as expressly provided in this chapter, 34 CFR Part 104 is incorporated by reference as follows: 104.3(f), (h)--(j), (k)(2), (l), 104.4--104.8, 104.11, 104.12 and 104.21--104.37.
§ 711.4. Supervision.
(a) The Commonwealth, through the Department as the SEA, will provide general supervision of special education services and programs provided under this chapter to ensure that charter schools comply with Federal laws and regulations governing children with disabilities.
(b) The Department will establish and implement methods of administration, including effective and proper methods of monitoring, directing corrective action, and ensuring compliance, to ensure that charter schools comply with Federal laws and regulations governing children with disabilities.
(c) Charter schools shall:
(1) Comply with the Department's compliance monitoring requirements.
(2) Provide all information requested by the Department.
(3) Complete all corrective action required by the Department.
§ 711.5. Personnel.
Persons who provide special education or related services to children with disabilities in charter schools must have appropriate certification, notwithstanding section 1724-A of the act (24 P. S. § 17-1724-A).
§ 711.6. Annual report.
(a) The annual report required under section 1728-A(b) of the act (24 P. S. § 17-1728-A(b)) shall include:
(1) The number of students in special education.
(2) The services, programs and resources being implemented by the charter school staff.
(3) The services and programs utilized by the charter school through contracting with another public agency, other organizations or individuals.
(4) The services and programs utilized by the charter school through the assistance of the intermediate unit in which the charter school is located under section 1725-A(a)(4) of the act (24 P. S. 17-1725-A(a)(4)).
(5) Staff training in special education utilized by the charter school through the intermediate unit and instructional support centers.
(b) The annual report shall include an assurance that the charter school is in compliance with Federal laws and regulations governing children with disabilities and the requirements of this chapter.
§ 711.7. Enrollment.
(a) A charter school may not discriminate in its admission policies or practices on the basis of status as a person with a disability.
(b) Charter schools may establish reasonable criteria, which shall be listed in their charters, to be used in evaluating prospective students. These criteria may not discriminate against an otherwise qualified handicapped child because of the child's handicap.
(c) A charter school may not discriminate in its admission policies or practices on the basis of intellectual ability, except as follows:
(1) The criteria may be used to assess intellectual ability relating solely to the charter school's particular grade level or area of concentration or targeted population group composed of at-risk students.
(2) The criteria may include prerequisites specified in the school's charter that directly relate to the school's mission and assess whether the child will be able to benefit from the offered program.
(3) The criteria may not include measures of achievement or aptitude such as intelligence tests, standardized achievement tests and scores resulting from testing associated with reading and math programs.
§ 711.8. Education records.
(a) When the educational records for a child with a disability are transferred from a public agency, private school, approved private school or private agency, to a charter school, the public agency, private school, approved private school or private agency from which the child transferred shall forward the child's educational records, including the most recent IEP, within 10 days after the public agency, private school, approved private school or private agency is notified in writing that the child is enrolled in a charter school.
(b) When the educational records for a child with a disability are transferred to a public agency, private school, approved private school or private agency from a charter school, the charter school shall forward the child's educational records, including the most recent IEP, within 10 school days after the charter school is notified in writing that the child is enrolled at another public agency, private school, approved private school or private agency.
§ 711.9. Payments.
(a) The child's school district of residence shall provide the special education payment required by section 1725-A(a)(3) of the act (24 P. S. § 17-1725-A(a)(3)) to the charter school either when:
(1) A child with an IEP from a Pennsylvania school entity begins attending the charter school.
(2) The charter school has identified an enrolled child as a child with a disability under the IDEA, has developed an IEP for the child, and notifies the district of residence of the identification.
(b) When a child for whom a charter school received the special education payment required under section 1725-A(a)(3) of the act enrolls in another public agency, private school, approved private school or private agency in this Commonwealth, the charter school shall immediately inform the child's school district of residence that its payment responsibilities under section 1725-A(a)(3) of the act have ceased.
IDENTIFICATION AND EVALUATION § 711.21. Child find.
(a) To enable the Commonwealth to meet its obligations under 34 CFR 300.125 (relating to child find), each charter school shall establish written policies and procedures to ensure that all children with disabilities that are enrolled in the charter school, and who are in need of special education and related services, are identified and evaluated.
(b) Each charter school's written policy shall include:
(1) Public awareness activities sufficient to inform parents of children applying to or enrolled in the charter school of available special education services and programs and how to request those services and programs.
(2) Systematic screening activities that lead to the identification and evaluation of children with disabilities enrolled in the charter school.
§ 711.22. Evaluation and reevaluation.
Charter schools shall reevaluate students with disabilities every 3 years, unless a shorter period is required by existing law.
IEP § 711.41. IEP.
When a child with a disability transfers to a charter school from another public agency, private school, approved private school or private agency in this Commonwealth, the charter school is responsible upon enrollment for ensuring that the child receives special education and related services in conformity with an IEP, either by adopting the existing IEP or by developing a new IEP for the child.
§ 711.42. Transportation.
(a) The child's school district of residence is responsible for ensuring that transportation to and from the charter school, when recommended as a related service in an IEP or as an accommodation under Section 504, is provided at no cost to the parent or charter school.
(b) This chapter does not prohibit a charter school and a school district from entering into agreements regarding the provision of transportation as a related service or accommodation to children with disabilities.
§ 711.43. Educational placement.
(a) When the IEP team at a charter school places a child in another public agency, private school, approved private school or private agency, and the parents choose to keep their child enrolled in the charter school, the charter school is obligated to pay for that placement.
(b) When a charter school places a child in an approved private school, the charter school shall be treated as the child's school district of residence for purposes of calculating cost of tuition and maintenance at the approved private school under section 1376(a) of the Public School Code of 1949 (24 P. S. § 13-1376(a)).
§ 711.44. ESY.
To implement 34 CFR 300.309, the State ESY Standards are as follows:
(1) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
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 occur as the result of an interruption in educational programming.
(2) An eligible student with disabilities 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.
(3) Factors such as those listed in this section shall be considered by the IEP teams whenever relevant, but no single factor is determinative of need for ESY services.
(4) Factors in addition to recoupment and regression include:
(i) The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
(ii) The extent to which a skill or behavior is particularly crucial to reaching the goals of self-sufficiency and independence from caretakers.
(iii) 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.
(5) Charter schools are responsible for considering the need for ESY services for each eligible student, including each student placed by the charter school in an approved private school or other placement site not operated by the charter school.
(6) 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 Federal requirements in 34 CFR 300.343(c) (relating to IEP meetings). 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 this section and applicable judicial decisions.
(7) 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.
(8) ESY services shall be designed to attain or maintain skills and behaviors relevant to established IEP goals and objectives.
(9) Reliable sources of information regarding a student's educational needs, propensity to progress, recoupment potential, and year-to-year progress may include the following:
(i) Progress on goals in consecutive IEPs.
(ii) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.
(iii) Reports by parents of negative changes in adaptive behaviors or in other skill areas.
(iv) Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.
(v) Observations and opinions by educators, parents and others.
(vi) Results of tests including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.
(10) 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.
(11) The need for ESY services will not be based on any of the following:
(i) The desire or need for day care or respite care services.
(ii) The desire or need for a summer recreation program.
(iii) 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.
PROCEDURAL SAFEGUARDS § 711.61. Suspension and expulsion.
(a) For purposes of this chapter, the terms ''suspension'' and ''expulsion'' have the meanings as set forth in § 12.6 (relating to exclusions from school).
(b) Charter schools shall comply with Chapter 12 (relating to students).
(c) Any removal from the current educational placement is a change of placement for a student who is identified with mental retardation.
(d) When a child with a disability has been expelled from a charter school, the charter school shall provide the child with a disability with the education required under § 12.6(e) until the charter school is notified in writing that the child is enrolled in another public agency, private school, approved private school or private agency.
§ 711.62. Procedural safeguards.
The following apply to coordination services for special education and Section 504 hearings and to hearing officers and appellate hearing officers:
(1) The Secretary may contract for coordination services in support of hearings conducted by local charter schools. The coordination services shall be provided on behalf of charter schools 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 charter school chooses not to utilize the coordination services under paragraph (1), it may conduct hearings independent of the services if it has obtained the Secretary's approval of procedures that similarly provide for procedural consistency and ensure the rights of the parties. In the absence of approval, a charter school which receives a request for an impartial due process hearing shall forward the request to the entity providing coordination services under paragraph (1) without delay.
(3) The Secretary will contract for the services of panels of appellate hearing officers and may compensate appellate hearing officers for their services. The compensation does not cause the appellate hearing officers to become employes of the Department.
(4) Neither a hearing officer nor an appellate hearing officer may be an employe or agent of a school entity in which the parents or student or young child resides, or of an agency which is responsible for the education or care of the student or young child. A hearing officer or appellate hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.
[Pa.B. Doc. No. 00-1164. Filed for public inspection July 7, 2000, 9:00 a.m.]
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