PROPOSED RULEMAKING
STATE BOARD OF EDUCATION
[22 PA. CODE CHS. 14 AND 342]
Special Education Services and Programs
[30 Pa.B. 4628] The State Board of Education (Board) proposes to amend Chapter 14 (relating to special education services and programs) and delete Chapter 342 (standards relating to special education services and programs) to read as set forth in Annex A, under the authority of the Public School Code of 1949 (24 P. S. §§ 1-101--27-2702-B).
This proposed rulemaking establishes procedures for the identification of students who are disabled and in need of special education services and programs and set forth requirements and procedures for the delivery of those services and programs.
Purpose
The proposed revisions to Chapter 14 are designed to align the chapter with the Federal Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400--1419), as amended June 4, 1997, and related Federal regulations, and applicable provisions of Pennsylvania statute and court decisions.
The Board determined that many areas in the Federal rules are sufficiently detailed to provide for effective implementation and, therefore, are proposed to be incorporated by reference.
Additional language is found in this proposal where: 1) Federal rules require greater detail for implementation; 2) court decisions applicable to the Commonwealth require regulations; and 3) the current practice in special education in this Commonwealth requires provisions in the regulations.
Proposed Chapter 14 includes provisions currently in Chapter 342 necessary for the implementation of special education programs and services. As a result, Chapter 342 is proposed for deletion.
This rulemaking on Chapter 14 will become a part of the eligibility grant application to the United States Department of Education under IDEA ensuring the provision of a free appropriate public education to students and children with disabilities. Copies of the eligibility grant application will be made available to the public through the Department of Education.
In separate rulemaking, the Board has proposed removing provisions for special education for gifted students from current Chapters 14 and 342 and establishing them in a separate new Chapter 16 (special education for gifted students). Those regulations are proceeding in the final-form phase of the regulatory review process and will be published shortly.
Requirements of the Proposal
The proposed revisions to Chapter 14 adopt terminology, establish the purpose, specify timelines for development and implementation of Individualized Education Program (IEP) plans, maintain requirements regarding extended school year services, require behavior support in addition to the Federal requirements and govern facilities in which special education is to be delivered. Major elements of the proposed rules include:
Alignment with Applicable Statutes--Proposed revisions to Chapter 14 affirm the Board's intent that children with disabilities be provided quality special education services and programs consistent with Federal and Commonwealth statute. The proposal defines terms as they apply to children with disabilities and the responsibilities of schools to provide a free appropriate public education for these students. See §§ 14.102 and 14.103 (relating to purpose; and terminology related to Federal regulations). To accomplish this, all sections of current Chapter 14 are proposed for deletion with the proposed text beginning at § 14.101 (relating to definitions).
School District and Intermediate Unit Plans--Section 14.104 (relating to educational plans) delegates decisions regarding the format, content and timeline for submission of school district and intermediate unit plans to the Secretary. Submission of school district plans is consistent with the submission of strategic planning as required under Chapter 4 (relating to academic standards and assessment). Intermediate units' submission of special education plans is consistent with Federal regulatory duties and with the provision of services to preschool children served under Early Intervention Service System Act (11 P. S. §§ 875-101--875-503).
Child Find and Screening--Proposed revisions to Chapter 14 identify the responsibilities of school districts to find students who may need special services and programs as prescribed by IDEA for school aged children. Proposed § 14.121 (relating to child find) retains duties to provide public notice on a periodic basis to ensure that parents and others are able to assist in this effort. The requirement to screen students who are thought to be disabled is retained in the revisions. See § 14.122 (relating to screening). The proposal provides options to school districts in carrying out the child find responsibility through the use of instructional support teams or other procedures designed locally. See § 14.122.
Evaluation and Reevaluation--Proposed § 14.123 (relating to evaluation) retains the current total number of school days for completing the evaluation process, but eliminate intermediate timelines. In addition, proposed § 14.123 and § 14.124 (relating to reevaluation) require that evaluations and reevaluations of students include a certified school psychologist, when appropriate, to reflect Federal requirements and remove the current requirement that school psychologists participate in all evaluations regardless of student needs. Consistent with Federal regulations, 34 CFR 300.536 (relating to reevaluations), this proposal requires reevaluation every 3 years or sooner if requested by a parent or local education agency. See § 14.124. The current requirement for reevaluation is every 2 years. A 2-year reevaluation timeline for students who are mentally retarded and protected by the PARC v. Commonwealth Consent Decree (334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (E.D. Pa. 1972)) is retained in § 14.124.
Review of Evaluation Report--General timelines for IEP meetings are required in the Federal rules. Proposed § 14.131 (relating to IEP) retains the current provision for parents to receive a copy of the evaluation report 10 days prior to the IEP team meeting. The 10-day review period may be waived by the parent.
Educational Placement--Under Federal regulations, educational placement for students with disabilities must be determined on a child-by-child basis. Proposed revisions to Chapter 14 retain the application of caseload maximums from Chapter 342 which limit the number of students assigned to any special education teacher. See § 14.142 (relating to caseload for special education). Class-size limitations--the number of students in a class at any one time--are proposed for deletion. In proposed § 14.141, school districts are permitted to develop caseloads other than those found in § 14.142 upon Department approval. The Department's intervention is required if the district developed caseload is determined to be inadequate by specified indicators in § 14.141. Changes in caseloads for speech therapy in this proposal are designed to clarify current confusion in their implementation in § 14.142.
Disciplinary Placements--Revisions to Chapter 14 rules retain the number of days a student with disabilities may be suspended in a school year, the number of consecutive days of suspension constituting a change in placement and the additional protections of students identified as mentally retarded as required by the PARC v. Commonwealth Consent Decree. See § 14.143 (relating to disciplinary placements).
Early Intervention--Revisions to Chapter 14 retain rules governing early intervention child find, public awareness and screening. To reflect current practice in the field, the frequency for reevaluation of early intervention children in these proposed rules is changed from once every year to once every 2 years or sooner if requested by a parent or local education agency. See § 14.153 (relating to evaluation). Proposed § 14.154 requires the IEP to be reviewed annually rather than semiannually to reflect practice in the field. The right of parents to request IEP meetings more frequently is retained. Proposed §§ 14.156--14.158 (relating to system of quality assurance; exit criteria; and data collection and confidentiality) address the additional responsibilities for the early intervention system of quality assurance of services, exit criteria and data collection and confidentiality required by the Early Intervention Service System Act.
Levels of Due Process--Current requirements for prehearing conferences, due process hearings and appeals are retained. Sections 14.161 and 14.162 (relating to prehearing conferences; and impartial due process hearings and expedited due process hearing) include new duties with regard to expedited hearings and dissemination of electronic record of transcripts and decisions as required in Federal statute and regulation.
Representation in Due Process Hearings--Based on its review under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506), on August 8, 2000, the Office of Attorney General requested that § 14.162(i) be changed prior to publication of the proposal in the Pennsylvania Bulletin to make it clear that both under Federal statute and regulations and under State law, licensed attorneys only may represent parents in due process proceedings. Federal statute provides for parties to be accompanied and advised by individuals with special knowledge or training in special education but those individuals may not perform any functions that constitute the practice of law. Section 14.162(i) as proposed in Annex A clarifies the roles of legal representation and the participation of other knowledgeable persons in due process hearings
Other Provisions--These include the retention of rules governing facilities for special education currently found in Chapter 342 (see § 14.144 (relating to facilities)); the elimination of provisions for experimental programs which have not been used by the field; and the elimination of rules governing course completion, diplomas and planned courses now found in Chapter 4.
Affected Parties
Students who need or may need special education services and programs will be affected by this proposal. The proposal also will affect parents and guardians of those students by guaranteeing their participation in the process of determining services and programs that best meet the needs of their child. School districts and intermediate units will be affected through compliance with the regulations.
Cost and Paperwork Estimates
This proposal provides procedures for consistent implementation of existing Federal and Commonwealth law and regulation. Adopting these revisions to Chapter 14 may result in savings by changing the reevaluation requirement from every 2 years to every 3 years (except for students who are mentally-retarded). This change could result in an approximate annual Statewide savings of $ 4.75 million for school districts.
School districts will experience additional costs over time in complying with new Federal requirements (such as, the requirement that regular education teachers participate in IEP meetings) that might minimize the potential savings previously described. New Federal rules have created additional paperwork requirements including regarding student goals and benchmarks in the IEP, and the more frequent issuance of procedural safeguards notices related to IEP team meetings, reevaluation and in certain disciplinary situations.
Effective Date
This proposal will become effective upon final publication in the Pennsylvania Bulletin.
Sunset Date
The effectiveness of the regulations in Chapter 14 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 August 23, 2000, the Board submitted a copy of this proposal to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees on Education. In addition to submitting the proposal, the Board 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(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposal, it will notify the Board within 10 days of the close of the Committees' 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 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 needing additional information regarding this proposal may contact Peter H. Garland (717) 787-3787. Copies of the proposal are available by calling (717) 787-3787, the TDD at (717) 787-7367 or by accessing the State Board's website at http://www.pde.psu.edu/regs/regulations.html.
The Federal regulations to be adopted by reference may be found at http://www.ideapractices.org/lawandregs.htm or http://www.cisc.k12.pa.us/federalregister/, or by requesting a copy from Dr. Garland.
Alternative formats of the proposal (such as, braille, large print, cassette tape) are available to members of the public upon request to Dr. Garland at the telephone numbers and address previously listed. Public comment is welcomed in alternative formats, such as Braille or taped comments and telephone comments from persons with disabilities. Persons who are disabled and wish to submit comments by telephone should call Nancy Zeigler (717) 783-6134 or TDD (717) 787-7367.
In addition, public hearings on the proposal will be conducted by the Board. Hearings will begin at 9 a.m. and conclude at 4 p.m. Dates and sites are as follows:
September 15, 2000
Harrisburg Office of PA Training and Technical
Assistance Network (formerly Central Instructional Support Center)
Suite 600
6340 Flank Drive
Harrisburg, PASeptember 21, 2000
Philadelphia Office of PA Training and Technical
Assistance Network (formerly Eastern Instructional Support Center)
Main Conference Room
200 Anderson Road
King of Prussia, PASeptember 25, 2000
Hampton Banquet Hall (across from Pittsburgh Office of PA Training and Technical Assistance Network (for merly Western Instructional Support Center))
5416 Route 8
Gibsonia, PAPersons wishing to testify at any of the hearings should contact the Board office no later than 4 p.m. on September 12, 2000, at the address and telephone numbers given in this Preamble. Testimony will be scheduled on a first-come, first serve basis.
Twenty-five copies of the oral testimony at the time of presentation are requested.
Persons unable to appear and present testimony at a hearing are encouraged to submit written comments to the Board. Written and alternative formats of comments will be afforded the same thoughtful consideration by the Board as testimony.
Persons with disabilities needing alternative means of providing public comment may make arrangements by calling Dr. Garland.
PETER H. GARLAND,
Executive DirectorFiscal Note: 6-270. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
Subpart A. MISCELLANEOUS PROVISIONS
CHAPTER 14. SPECIAL EDUCATION SERVICES AND PROGRAMS (Editor's Note: The State Board of Education is proposing to delete the current text of §§ 14.1--14.8, 14.21--14.25, 14.31--14.39, 14.41--14.45, 14.51--14.56, 14.61--14.68 and 14.71--14.74, which appear at 22 Pa. Code pages 14-4 to 14-46, serial pages (256360), (229113), (242011) to (242014), (261009) to (261012), (229119) to (229124), (242017) to (242018), (256361) to (256364), (249383) to (249384), (252451) to (252452), (256365) to (256367), (202979) to (202990), (249391) to (249392), (222351), (256369) to (256370) and (202995) to (202996). The following text is new and printed in regular type to enhance readability.)
GENERAL PROVISIONS
Sec.
14.101. Definitions. 14.102. Purposes. 14.103. Terminology related to Federal regulations. 14.104. Educational plans. CHILD FIND, SCREENING AND EVALUATION
14.121. Child find. 14.122. Screening. 14.123. Evaluation. 14.124. Reevaluation. IEP
14.131. IEP. 14.132. ESY. 14.133. Behavior support. EDUCATIONAL PLACEMENT
14.141. Educational placement. 14.142. Caseload for special education. 14.143. Disciplinary placements. 14.144. Facilities EARLY INTERVENTION
14.151. Purpose. 14.152. Child find, public awareness and screening. 14.153. Evaluation. 14.154. IEP. 14.155. Range of services. 14.156. System of quality assurance. 14.157. Exit criteria. 14.158. Data collection and confidentiality. PROCEDURAL SAFEGUARDS
14.161. Prehearing conferences. 14.162. Impartial due process hearing and expedited due process hearing.
GENERAL PROVISIONS § 14.101. Definitions.
In addition to the definitions in § 14.103 (relating to terminology related to Federal regulations), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Early Intervention Services System Act (11 P. S. §§ 875-101--875-503).
Agency--An intermediate unit, school district, approved private school, State-operated program or facility or other public (excluding charter schools under 24 P. S. §§ 17-1701-A--17-1732-A) or private organization providing educational services to children with disabilities or providing early intervention services.
Age of beginners--The minimum age established by the school district board of directors for admission to the district's first grade under § 11.15 (relating to admission of beginners).
Department--The Department of Education of the Commonwealth.
Developmental areas--The term includes cognitive, communicative, physical, social/emotional and self-help.
Developmental delay--A child is considered to have a developmental delay when one of the following exists:
(i) The child's score, on a developmental assessment device, on an assessment instrument which yields a score in months, indicates that the child is delayed by 25% of the child's chronological age in one or more developmental areas.
(ii) The child is delayed in one or more of the developmental areas, as documented by test performance of 1.5 standard deviations below the mean on standardized tests.
ESY--Extended school year.
Early intervention agency--An intermediate unit, school district or licensed provider which has entered into a mutually agreed upon written arrangement with the Department to provide early intervention services to eligible young children in accordance with the act.
Early intervention services--An appropriate educational program of specially designed instruction and related services to meet the needs of eligible young children and address the strengths and needs of the family to enhance the child's development. The need for the services and programs shall be in one or more of the following areas: physical, sensory, cognitive, communicative, social-emotional and self-help.
Eligible young child--A child who is less than the age of beginners and at least 3 years of age and who meets the criteria at 34 CFR 300.7 (relating to a child with a disability).
IEP--Individualized education program.
IST--Instructional support team.
MDT--Multidisciplinary team.
Mutually agreed-upon written arrangement--An agreement between the Department and an intermediate unit, school district or other public or private agency to provide early intervention services that comply with this chapter and the act.
Secretary--The Secretary of the Department.
§ 14.102. Purpose.
(a) It is the intent of the Board that children with disabilities be provided with quality special education services and programs. The purposes of this chapter are to serve the following:
(1) To adopt Federal regulations by incorporation by reference to satisfy the statutory requirements under the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1419) and to ensure that:
(i) Children with disabilities have available to them a free appropriate public education which is designed to enable the student to participate fully and independently in the community, including preparation for employment or higher education.
(ii) The rights of children with disabilities and parents of these children are protected.
(2) To adopt, except as expressly otherwise provided in this chapter, the requirements of 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities) as published at 64 FR 12418--12469 (March 12, 1999). The following sections are incorporated by reference.
(i) 34 CFR 300.4--300.6.
(ii) 34 CFR 300.7(a) and (c).
(iii) 34 CFR 300.8--300.24.
(iv) 34 CFR 300.26.
(v) 34 CFR 300.28 and 300.29.
(vi) 34 CFR 300.121--300.125.
(vii) 34 CFR 300.138 and 300.139.
(viii) 34 CFR 300.300.
(ix) 34 CFR 300.302--300.309.
(x) 34 CFR 300.311(b)(c).
(xi) 34 CFR 300.313.
(xii) 34 CFR 300.320 and 300.321.
(xiii) 34 CFR 300.340.
(xiv) 34 CFR 300.342--300.346.
(xv) 34 CFR 300.347 (a), (b) and (d).
(xvi) 34 CFR 300.348--300.350.
(xvii) 34 CFR 300.403.
(xviii) 34 CFR 300.450--300.462.
(xix) 34 CFR 300.500--300.515.
(xx) 34 CFR 300.519--300.529.
(xxi) 34 CFR 300.531--300.536.
(xxii) 34 CFR 300.540--300.543.
(xxiii) 34 CFR 300.550--300.553.
(xxiv) 34 CFR 300.560--300.574(a) and (b).
(xxv) 34 CFR 300.576.
(3) To specify how the Commonwealth will meet its obligations to suspected and identified children with disabilities who require special education and related services to reach their potential.
(4) To provide to the Commonwealth, through the Department, general supervision of services and programs provided under this chapter.
(b) To provide services and programs effectively, the Commonwealth will delegate operational responsibility for school aged students to its school districts to include the provision of child find duties prescribed by 34 CFR 300.125(a) (relating to child find).
§ 14.103. Terminology related to Federal regulations.
For purposes of interfacing with 34 CFR Part 300, the following term applies, unless the context clearly indicates otherwise:
Local educational agency--Where the Federal provision uses the term ''local educational agency,'' for purposes of this chapter, the term means an intermediate unit, school district, State operated program or facility or other public organization providing educational services to children with disabilities or providing early intervention services.
§ 14.104. Educational plans.
(a) Each school district shall develop a special education plan every 3 years consistent with the 3-year review cycle of the strategic plan of the school district under § 4.13 (relating to strategic plans). The Secretary will prescribe the format, content and time for submission of the special education plan.
(b) Each school district's special education plan shall specify special education programs that operate in the district and those that are operated in the district by the intermediate units, area vocational technical schools and other agencies.
(c) Each school district's special education plan shall include procedures for the education of all students with a disability who are residents of the district including those receiving special education in approved private schools and students with a disability who are nonresidents placed in private homes or institutions in the school district under sections 1305, 1306 and 1306.2 of the Public School Code of 1949 (24 P. S. §§ 13-1305, 13-1306 and 13-1306.2).
(d) Each intermediate unit shall prepare annually and submit to the Secretary a special education plan specifying the special education services and programs to be operated by the intermediate unit. The Secretary will prescribe the format, content and time for submission of the intermediate units' plans.
(e) Each early intervention agency shall develop an early intervention special education plan every 3 years.
(f) The Department will approve plans in accordance with the following criteria:
(1) Services and programs are adequate in quantity and variety to meet the needs of students identified as children with disabilities within the school district or intermediate unit or eligible young children within the early intervention agency.
(2) The full range of services and programs under this chapter are available to children with disabilities and eligible young children.
(3) The plan meets the specifications defined in this chapter and the format, content and time for submission of the agency plans prescribed by the Secretary.
(g) Portions of the plans that do not meet the criteria for approval will be disapproved. Prior to disapproval, Department personnel will discuss disapproved portions of the plan and suggest modifications with appropriate intermediate unit or school district personnel. Portions of the plan that are not specifically disapproved will be deemed approved.
(h) When a portion of an intermediate unit, school district or early intervention plan is disapproved, the Department will issue a notice specifying the portion of the plan disapproved, and the rationale for the disapproval and the opportunity for a hearing under 2 Pa.C.S. §§ 501--508 and 701--704 (relating to the Administrative Agency Law) and 1 Pa. Code Part II (relating to the General Rules of Administrative Practice Procedure). If requested, the Department will convene a hearing within 30-calendar days after the receipt of the request. The Department will render a decision within 30-calendar days following the hearing.
CHILD FIND, SCREENING AND EVALUATION § 14.121. Child find.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.125(a)(i) (relating to child find), each school district shall adopt and use a public outreach awareness system to locate and identify children thought to be eligible for special education within the school district's jurisdiction.
(b) Each school district shall conduct awareness activities to inform the public of its early intervention and special education services and programs and the manner in which to request services and programs.
(c) Each school district shall provide annual public notification, published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the school district of child identification activities and of the procedures followed to ensure confidentiality of information pertaining to students with disabilities or eligible young children in accordance with this chapter.
§ 14.122. Screening.
(a) Each school district shall establish a system of screening to accomplish the following:
(1) Identify and provide initial screening and direct intervention for students prior to referral for a special education evaluation.
(2) Provide peer support for teachers and other staff members to assist them in working effectively with students in the general education curriculum.
(3) Conduct hearing and vision screening in accordance with section 1402 of the Public School Code of 1949 (24 P. S. § 14-1402) for the purpose of identifying students with hearing or vision difficulty so that they can be referred for assistance or recommended for evaluation for special education.
(4) Identify students who may need special education services and programs.
(b) Each school district shall implement a comprehensive screening process. School districts may implement instructional support according to Department guidelines or an alternative screening process. School districts which elect not to use instructional support for screening shall develop and implement a comprehensive screening process that meets the requirements specified in subsections (a) and (c).
(c) The screening process shall include:
(1) For students with academic concerns, an assessment of the student's functioning in the curriculum including curriculum-based and performance-based assessment.
(2) For students with behavioral concerns, a systematic observation of the student's behavior in the classroom or area in which the student is displaying difficulty.
(3) An intervention based on the results of the assessments under paragraph (1) or (2).
(4) An assessment of the student's response to the intervention.
(5) A determination as to whether the student's assessed difficulties are due to a lack of instruction or limited English proficiency.
(6) A determination as to whether the student's needs exceed the functional ability of the regular education program to maintain the student at an appropriate instructional level.
(d) If screening activities have produced little or no improvement within 60 school days after initiation, the student shall be formally referred for evaluation under § 14.123 (relating to evaluation).
(e) Screening activities do not serve as a bar to the right of a parent to request an evaluation, at any time, including prior to or during the conduct of screening activities.
§ 14.123. Evaluation.
(a) The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.534(a)(1) (relating to determination of eligibility), shall include a certified school psychologist when appropriate.
(b) In addition to the requirements incorporated by reference at 34 CFR 300.531--300.535, the initial evaluation shall be completed and a copy of the evaluation report presented to the parents no later than 60-school days after the agency receives written parental consent.
§ 14.124. Reevaluation.
(a) The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.536 (relating to reevaluation), shall include a certified school psychologist where appropriate.
(b) In addition to the requirements incorporated by reference at 34 CFR 300.536, a reevaluation report shall be provided to the parents within 60 school days from the date that the request for reevaluation was received from the parent or teacher, or from the date that a determination is made by the agency that conditions warrant a reevaluation.
(c) Students identified as mentally retarded shall be reevaluated at least once every 2 years.
IEP § 14.131. IEP.
(a) Notwithstanding the requirements incorporated by reference, the following provisions apply to IEPs:
(1) Copies of the comprehensive evaluation report shall be disseminated to the parents at least 10 days prior to the meeting of the IEP team. A parent may waive this 10-day rule.
(2) If a student with a disability moves from one school district in this Commonwealth to another, the new district shall implement the existing IEP to the extent possible or shall provide the services and programs specified in an interim IEP agreed to by the parents until a new IEP is developed and implemented and until the completion of due process proceedings under this chapter.
(3) If a student with a disability moves into a school district in this Commonwealth from another state, the new school district may treat the student as a new enrollee and place the student into regular education and it is not required to implement the student's existing IEP.
(4) Every student receiving special education and related services provided for in an IEP developed prior to ____ (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) shall continue to receive the special education and related services under that IEP subject to the terms, limitations and conditions set forth in law.
(b) In addition to the requirements incorporated by reference in 34 CFR 300.29, 300.344(b) and 300.347(b) (relating to transition services; IEP team; and content of IEP), each school district shall designate persons responsible to coordinate transition activities.
§ 14.132. ESY.
This section sets forth the standards for determining whether a student with disabilities requires ESY as part of the student's program.
(1) At each IEP meeting for a student with disabilities, the school districts shall determine whether the student is eligible for ESY services and if so, make subsequent determinations about the services to be provided.
(2) In considering whether a student is eligible for ESY services, the IEP team shall consider the following factors, however, no single factor shall be considered determinative:
(i) Regression--whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming.
(ii) Recoupment--whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming.
(iii) Whether the student's difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.
(iv) The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.
(v) The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.
(vi) The extent to which successive interruptions in educational programming result in a student's withdrawal from the learning process.
(vii) Whether the student's disability is severe, such as autism/pervasive developmental disorder, serious emotional disturbance, severe mental retardation, degenerative impairments with mental involvement and severe multiple disabilities.
(3) 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.
(4) 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.
§ 14.133. Behavior support.
(a) Positive rather than negative measures shall form the basis of behavior management programs. Behavior management programs include a variety of techniques to develop and maintain skills that will enhance an individual student's or young child's opportunity for learning and self-fulfillment. The types of intervention chosen for a particular student or young child shall be the least intrusive.
(b) Not withstanding the requirements incorporated by reference in 34 CFR 300.24(b)(9)(vi), (13)(v), 300.346(a) (2)(i) and (d) and 300.520(b) and (c) (relating to related services; development, review, and revision of IEP; and authority of school personnel), with regard to a child's behavior, the following words and terms when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Aversive techniques--Deliberate activities designed to establish a negative association with a specific behavior.
Behavior management--The development, change and maintenance of selected behaviors through the systematic application of behavior change techniques.
Positive techniques--Methods which utilize positive reinforcement to shape a student's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.
Restraints--Devices and techniques designed and used to control acute or episodic aggressive behaviors or to control involuntary movements or lack of muscular control due to organic causes or conditions. The term includes physical and mechanical restraints.
(c) Restraints to control acute or episodic aggressive behavior may be used only when the student is acting in a manner as to be a clear and present danger to himself, to other students or to employes, and only when less restrictive measures and techniques have proven to be or are less effective. The use of restraints to control the aggressive behavior of an individual student shall cause a meeting of the IEP team to review the current IEP for appropriateness and effectiveness. The use of restraints may not be included in the IEP for the convenience of staff, as a substitute for an educational program, or employed as punishment.
(d) Mechanical restraints, which are used to control involuntary movement or lack of muscular control of students when due to organic causes or conditions, may be employed only when specified by an IEP and as determined by a medical professional qualified to make the determination, and as agreed to by the student's parents. Mechanical restraints shall prevent a student from injuring himself or others or promote normative body positioning and physical functioning.
(e) The following aversive techniques of handling behavior are considered inappropriate and may not be used by agencies in educational programs:
(1) Corporal punishment.
(2) Punishment for a manifestation of a student's disability.
(3) Locked rooms, locked boxes or other locked structures or spaces from which the student cannot readily exit.
(4) Noxious substances.
(5) Deprivation of basic human rights, such as withholding meals, water or fresh air.
(6) Suspensions constituting a pattern under § 14.143(a) (relating to disciplinary placements).
(7) Treatment of a demeaning nature.
(8) Electric shock.
(f) Agencies have the primary responsibility for ensuring that behavior management programs are in accordance with this chapter, including the training of personnel for the use of specific procedures, methods, and techniques, and for having a written policy on the use of behavior management techniques and obtaining parent consent prior to the use of highly restraining or intrusive procedures.
(g) In accordance with their plans, agencies may convene human rights committees to oversee the use of restraining or intrusive procedures and restraints.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
