NOTICES
Notice of Comments Issued
[30 Pa.B. 6021] Section 5(d) and (g) of the Regulatory Review Act (71 P. S. § 745.5(d) and (g)) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committees' comment period. The Commission's Comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).
The Commission issued Comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the date indicated.
Final-Form
Submission
Reg. No. Agency/Title Issued Deadline
7-358 Environmental Quality Board Interim Enhanced Surface Water Treatment 11/02/00 10/02/02 7-359 Environmental Quality Board Disinfectants and Disinfection Byproducts 11/02/00 10/02/02 2-133 Department of Agriculture Preferential Assessment of Farmland and Forest Land Under the Clean and Green Act 11/02/00 10/02/02 10-162 Department of Health School Immunization 11/02/00 10/02/02 11-184 Insurance Department Policies and Forms; General Filing Requirements and General Contents of Forms 11/02/00 10/02/02 6-270 State Board of Education Special Education Services and Programs 11/02/00 10/02/02 7-356 Environmental Quality Board Administration of Land Recycling Program 11/03/00 10/04/02
Environmental Quality Board Regulation No. 7-358
Interim Enhanced Surface Water Treatment
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. General. Reasonableness.
The Environmental Protection Agency (EPA) commented that the provision at 40 CFR 141.173(a)(3) is not included in this rulemaking. This Federal provision states, ''A system that uses lime softening may acidify representative samples prior to analysis using a protocol approved by the state.'' Why was this option excluded in Pennsylvania's regulation?
2. Section 109.1. Definitions.--Clarity.
CPE--Comprehensive Performance Evaluation
The provisions under subsection (ii) are substantive. Definitions should not contain substantive provisions. These minimum components of the Comprehensive Performance Evaluation should be moved to section 109.205.
Disinfection profile
This definition mentions ''procedures and measurement methods established by the EPA. For clarity, a specific reference to the EPA procedures and measurement methods should be added.
3. Section 109.202. State MCLs and treatment technique requirements.--Reasonableness; Clarity.
Subsection (c)(1)(iii)(C) uses the phrase ''unless the Department specifies more stringent performance criteria.'' Under what circumstances would the Department require ''other filtration technologies'' to meet more stringent criteria than conventional filtration? What process will the Department use to impose more stringent performance criteria?
4. Section 109.204. Disinfection profiling and benchmarking.--Nature of required reports; Reasonableness; Clarity.
This section requires data to be submitted ''in a format acceptable to the Department.'' What format does the Department intend to accept? How will the person filing the data be notified what format is acceptable to the Department?
5. Section 109.301. General monitoring requirements.--Economic impact; Reasonableness.
Subsection (1)(iv) requires an operator to ''conduct continuous monitoring of turbidity . . . and record turbidity levels every 15 minutes.'' One commentator currently records turbidity continuously and can retrieve data as necessary from the continuous data. The commentator suggests an amendment to ''record data at least every 15 minutes.'' Is the requirement to ''record turbidity levels every 15 minutes'' intended to be a minimum requirement? If so, the regulation should be amended as suggested.
6. Section 109.701. Reporting and recordkeeping.--Clarity.
In regard to Subsection (e), the EPA notes that ''systems must maintain individual filter monitoring data for at least 3 years, and they must report that they have conducted individual filter monitoring within 10 days after the end of each month that the system serves water to the public.'' Existing subsection (d) specifies record maintenance requirements. Are the records required under subsection (e) subject to subsection (d) Record maintenance? Does this meet EPA requirements?
7. Section 109.714. Filter profile, filter self-assessment and CPEs.--Reasonableness; Clarity.
EPA commented that under Federal regulations, systems have 90 days to complete a Comprehensive Performance Evaluation. Subsection (3) states a CPE must be conducted within 30 days. There are two concerns. First, why is Pennsylvania using a 30-day requirement when the EPA uses a 90-day requirement? Second, the regulation should state when the CPE must be completed.
Environmental Quality Board Regulation No. 7-359
Disinfectants and Disinfection Byproducts
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. General.--Clarity.
The Pennsylvania Bottled Water Association and the International Bottled Water Association have questioned whether provisions in the proposed regulation apply to bottled water companies. The final-form regulation should clearly state who is required to comply with these provisions.
2. Section 109.1. Definitions.--Clarity.
MRDL--Maximum Residual Disinfectant Level
The definition of ''MRDL'' includes the phrase, ''unacceptable possibility of adverse health effects.'' What is an unacceptable possibility of adverse health effects?
3. Section 109.202. State MCLs, MRDLs or treatment technique requirements.--Clarity.
Subsection (a) Primary MCLs
Paragraph (3) of Subsection (a) states that a public water system may apply to the Department for ''an extension of up to 24 months past the application compliance date specified in the Federal regulations.'' How will a public water system apply for an extension, and what criteria will be used in determining whether or not to grant an extension?
Paragraph (a)(3), as published in the Pennsylvania Bulletin, contains a typographical error. In the first sentence, there is a period after the phrase ''. . . in the Federal regulations.'' It would appear a comma was intended so that the regulation will read ''. . . in the Federal regulations, but not beyond December 31, 2003.'' This correction should be made in the final-form regulation.
Subsection (g) Treatment technique requirements for disinfection byproduct precursors
Subsection (g)(2)(ii)(C) begins with a lengthy sentence. For clarity, this sentence should be broken into shorter sentences.
This provision also has a typographical error. It appears the second and third sentences were intended to be one sentence with a comma.
4. Section 109.301. General monitoring requirements.--Clarity.
Subsection (12)(i)(A)
EPA commented that sample sites for total trihalomethanes (TTHM) and haloacetic acids (five) (HAA5) should be representative of the entire site distribution system. Should this provision be added?
Subsections (12)(i)(B)(I)(a)--(c)
These subsections state, ''Systems on reduced monitoring are not required to monitor source water TOC.'' EPA agrees that systems do not have to meet a particular total organic carbon (TOC) level to remain on reduced monitoring for TTHM and HAA5. However, if the system uses a conventional filtration plant under the disinfection byproducts precursor treatment technique, the system would still need to monitor source water TOC. Therefore, EPA suggests that TOC monitoring should be continued if monitoring for TTHM and HAA5 is reduced. Should TOC monitoring be required in this situation?
Subsection (12)(iv)(A)
This section states, ''Systems shall take monthly samples of the source water alkalinity, the source water TOC and the combined filter TOC for each treatment plant that utilizes conventional filtration.'' If a plant does not have a combined filter effluent line, where should this sample be taken?
5. Section 109.403. Description and content of notice.--Protection of the public safety.
EPA commented that the EQB should not adopt the public notice on health effects language referenced in Subsection (d). EPA recommends using EPA's revised language in 40 CFR Part 141, Subpart Q, Appendix B. The regulation should be amended accordingly.
6. Section 109.701. Reporting and recordkeeping.--Clarity.
EPA commented that two reporting requirements for disinfectant residuals were left out of Subsection (a)(8) as follow:
* For chlorine dioxide, systems must also report whether the MRDL was exceeded and whether it was exceeded in any two consecutive daily samples and whether the resulting violation was acute or nonacute.
* For chlorine and chloramines, systems must also report the number of samples and whether the MRDL was exceeded.
EPA also commented that the phrase ''entry point'' should be taken out of Subsection (a)(9)(ii)(A) because systems must report all samples, not just entry point samples. The EQB should consider revising this subsection in accordance with EPA's comments.
Department of Agriculture Regulation No. 2-133
Preferential Assessment of Farmland and Forest
Land Under The Clean and Green Act
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Agriculture (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. Comments of Representative Raymond Bunt, Jr., and Senator Noah W. Wenger.
During our review of this regulation, we identified a number of sections that did not meet the criteria of the Regulatory Review Act. These same issues were also raised in the comments submitted by Representative Raymond Bunt, Jr., Chairperson of the House Agriculture and Rural Affairs Committee, and Senator Noah W. Wenger, Acting Chairperson of the Senate Agriculture and Rural Affairs Committee, in their letters to the Department dated October 23, 2000.
We concur with the objections and recommendations that were raised in the comments of Representative Bunt and Senator Wenger concerning the following sections of the regulation:
Section 137b.1. Purpose.--Consistency with statute; Legislative intent.
For consistency with the Pennsylvania Farmland and Forest Land Assessment Act of 1974, as amended by Act156 of 1998 (72 P. S. §§ (5490.1--5490.11) (Act), the last sentence of Subsection (b) should be deleted.
Section 137b.2. Definitions.--Consistency with statute; Clarity.
The second sentence of the definition of ''transfer'' should be deleted, as it is inconsistent with Section 6(a.3) of the Act.
Paragraphs (i) and (ii) under the definition of ''outdoor recreation'' are inconsistent with the Act and should be deleted.
Section 137b.12. Agricultural use.--Clarity
The undefined term ''agricultural production'' should be replaced with the defined term ''agricultural commodity.''
Section 137b.13. Agricultural reserve.--Statutory authority; Clarity.
The Department should delete the requirement that at least 60% of the land in agricultural reserve must be in land classifications I through IV excluding wetlands and water areas, or explain its statutory basis. Additionally, the phrase ''and woodlot'' should be added at the end of the sentence, since this section describes agricultural reserve land.
Section 137b.14. Forest reserve.--Statutory authority; Clarity.
Since there is no statutory basis for the requirement of producing annual growth of 25 cubic feet per acre, it should be deleted. Paragraph (ii) from the definition of ''forest reserve'' should be added to this section.
Section 137b.27. Assessment of ineligible land.--Clarity. The phrase ''and buildings'' is unnecessary and should be deleted.
Subsection 137b.52(b) No termination of preferential assessment without change of use.--Legislative intent; Consistency with the statute; Clarity.
The last sentence in the first paragraph of Subsection (b) is inconsistent with the Act and the intent of the General Assembly. This sentence should be deleted. Examples 3 and 4 under Subsection (b) are not applicable without the mechanism to make advance payments toward the roll-back tax. Therefore, they should be deleted.
Subsection 137b.52(d) Payment of roll-back taxes does not affect preferential assessment of remaining land.--Clarity.
The references to Section 2 of the Act in Examples 3 and 4 are incorrect. They should be changed to Section 3 of the Act.
Section 137b.54. Calculating the contributory value of farm buildings.--Clarity.
Paragraph (i) of the proposed definition for ''contributory value of farm buildings'' should be added to this section.
Section 137b.62. Enrolled ''agricultural use'' land of less than 10 contiguous acres.--Clarity.
Instead of using terms describing specific agricultural operations, the defined term ''agricultural commodity'' should be used.
Section 137b.71. Death of an owner of enrolled land.--Clarity.
This section should clearly indicate that the inheritors of the preferentially assessed land must file amended applications as required by Section 5490.4(f)(1) of the Act.
Section 137b.102. Recordkeeping.--Consistency with statute; Clarity.
To be consistent with Section 5(a)(1) of the Act, the term ''property record cards'' should be added to the first sentence of this section. In addition, the last sentence should be deleted.
Section 137b.131. Civil penalties.--Clarity
We agree with Representative Bunt, Senator Wenger and the Pennsylvania Farm Bureau that the term ''violation'' should be defined in this section. Additionally, the regulation should state that those who change the use of enrolled land are subject to roll-back taxes, not civil penalties.
2. Section 137b.2 Definitions.--Consistency with statute; Clarity.
General
The definitions of ''agricultural commodity, agricultural reserve, agricultural use, capitalization rate, farm building, farmstead land, income approach, land use category, net return to land, and woodlot'' are the same as the Act. The regulation should reference the statutory definitions, not repeat them verbatim.
The regulatory definitions of ''contributory value of farm building, forest reserve, split off, roll-back taxes, and separation'' are similar to the statutory definitions in the Act but include new language. To be consistent with the statute, the regulation should reference the statutory definitions.
Rural enterprise incidental to the operational unit
This phrase is defined as a ''commercial enterprise or venture.'' Section 8(d) of the Act refers to this activity as ''direct commercial sales of agriculturally related products and activities or for a rural enterprise incidental to the operational unit.'' The definition should be amended to incorporate the language of the Act.
3. Section 137b.4. Contacting the Department.--Clarity.
This section gives the street address of the Department along with a telephone and fax number that the regulated community can use. Can the regulated community contact the Department through electronic mail? If so, an e-mail address should also be included.
4. Section 137b.22. Landowner may include or exclude from the application tracts described in separate deeds.--Consistency with statute; Clarity.
This section states that if contiguous tracts are described in separate deeds, a landowner may include or exclude any of the tracts from the application for preferential assessment. Subsections 3(a.1)(1) and (2) of the Act (72 P. S. §§ 5490.3(a.1)(1) and (2)) state that contiguous tracts may be enrolled if the total area meets the minimum requirements for eligibility. Additionally, if a tract itself does not meet the minimum requirements, it may be enrolled if it is contiguous to a tract previously enrolled for preferential assessment.
This section in the regulation does not include these conditions. The regulation should be revised to reflect these statutory provisions governing the enrollment of contiguous tracts with separate deeds.
5. Section 137b.24. Ineligible land may appear on an application, although it cannot receive preferential assessment.--Statutory authority; Clarity.
This section includes the following sentence: ''The ultimate determination of whether land is eligible or ineligible shall be made by the county assessor.'' Rather than using the word ''ultimate,'' the regulation should state that eligibility determinations by the county assessor shall be based upon the requirements and standards set forth in the Act.
6. Section 137b.26. Land located in more than one tax district.--Consistency with other regulations; Clarity.
Example 2 under this section contains statements that conflict with Section 137b.43. Example 2 provides that when a tract of land is located in two counties, the landowner must file applications for preferential assessment in each county. Section 137b.43 states that when a tract is located in more than one county, the landowner must file the application with the county assessor in the county to which the landowner pays property taxes. Example 2 should be consistent with Section 137b.43.
7. Section 137b.41. Application forms and procedures.--Legislative intent; Consistency with statute; Implementation procedure; Reasonableness; Clarity.
Subsection (a) Standardized application form required.
Subsection (b) Application form and worksheets.
Subsection 4(c) of the Act (72 P. S. § 5490.4(c)) sets forth three conditions for ''application forms for preferential assessment in all counties'':
* Application forms shall be ''uniform.''
* ''Application forms shall be developed by the department.''
* Forms will include ''the information the department shall deem appropriate.''
Subsections 137b.41(a) and (b) refer to a '' 'Clean and Green Valuation Application' form'' and '' 'Clean and Green Valuation Worksheet' form.'' However, nothing in this section or elsewhere in the regulation identifies the contents of these forms or the types of information needed to complete the forms.
To insure uniformity, the regulation should be amended to include the content and informational requirements of the application and worksheet forms.
Subsection (e) Additional information.
This subsection allows a county assessor to require an applicant to provide additional information or documentation. A county assessor must make the request in writing. This written request must clearly state the reasons why the application is insufficient and identify the necessary information required by the assessor. There are two concerns.
First, for consistency with Subsection 3(e) of the Act (72 P. S. § 5490.3(e)), Subsection 137b.41(e) should provide examples of the types of documentation or information that a county assessor may request.
Second, this section should direct counties to perform a completeness review. The completeness review should be finished within a certain time period, such as within 30 days of receipt. The county should then notify the applicant as to whether the application is complete or what additional information is required.
8. Section 137b.46. Fees of the county board for assessment appeals.--Consistency with statute; Clarity.
This section could be interpreted to allow counties to charge fees in addition to those authorized by Subsections 4(d), (e) and (f) of the Act. For clarity, the regulation should reference Subsections 4(d), (e) and (f) of the Act which specify both the application fee and the circumstances when a county may impose recording fees.
9. Section 137b.51. Assessment procedures.--Reasonableness; Clarity
Subsection (d) Determining preferential assessment.
This section contains a standard formula for determining preferential assessment of land. The formula includes the number of acres of land in each subcategory and the use value for the particular land use subcategory. However, each county uses its own ''established predetermined ratio'' in assessing land values. The term ''established predetermined ratio'' is defined in Section 102 of the General County Assessment Law (72 P. S. § 5020-102). In order to accurately determine the assessments of these lands, the regulation should incorporate a county's established predetermined ratio into the formula.
10. Section 137b.52. Duration of preferential assessment.--Legislative intent; Consistency with the statute; Clarity.
Subsection (g) Transfer does not trigger roll-back taxes.
This subsection states that there will be no roll-back taxes when enrolled land is transferred without a change to an ineligible use. There are two concerns.
First, the second sentence limits the protection from roll-back taxes to contiguous acreage when the enrolled land consists of several noncontiguous tracts in one application. However, the Act does not make a distinction between contiguous and noncontiguous tracts in the same application. The Department needs to explain its authority for the second sentence or delete it from the regulation.
Second, this subsection does not indicate who is responsible for roll-back taxes if there is a change in the use of the land. Subsection 6(a.3) of the Act provides: ''The landowner changing the use of the land to one inconsistent with the provisions of Section 3 shall be liable for payment of roll-back taxes.'' This subsection of the regulation should include a reference to this provision of the Act.
11. Section 137b.53. Calculation and recalculation of preferential assessment.--Statutory authority; Reasonableness; Clarity.
Subsection (b) Option of county assessor in calculation of preferential assessment.
Subsection (b) gives county assessors the option of either calculating the preferential assessment annually, or establishing a ''base year'' for preferential assessment. However, the process for calculating a ''base year'' value is not discussed. The regulation should include the acceptable process for calculating a ''base year.''
Subsection (g) Land enrolled prior to June 2, 1998.
Subsection (g) provides county assessors the option of not recalculating the preferential assessment of land covered in applications for preferential assessment filed on or before June 1, 1998. We have three questions regarding this subsection.
First, what is the Department's statutory authority for including this ''grandfather clause''?
Second, why is this subsection optional?
Finally, how was the date of ''June 1, 1998'' determined?
12. Section 137b.61. Liability for roll-back taxes.--Clarity.
Subsection (a) provides that, if an owner of enrolled land changes the use of the land ''. . . so that it otherwise fails to meet the requirements of section 3 of the Act (72 P. S. § 5490.3). . . .'' the landowner is responsible for the payment of roll-back taxes. The regulation should include a phrase that states that, if the above condition is met, the land shall be removed from the preferential assessment program.
13. Section 137b.64. Agricultural reserve land to be open to the public.--Statutory authority.
Subsection (c) Reasonable restrictions on use allowed.
This section allows a landowner to place ''. . . reasonable restriction to public access on enrolled land that is enrolled as agricultural reserve land.'' Subsection (c) also includes examples of restrictions, including ''limiting access to the land to pedestrians only,'' and ''prohibiting hunting or the carrying or discharge of firearms on the land.''
Section 5490.2 of the Act (72 P. S. § 5490.2) defines ''agricultural reserve'' as ''Noncommercial open space lands used for outdoor recreation . . . and open to the public . . . on a nondiscriminatory basis.'' This definition does not contain the restrictions listed in Subsection (c). What is the statutory authority for including these restrictions?
14. Section 137b.75. Transfer of enrolled land for use as a cemetery. Section 137b.76. Transfer of enrolled land or transfer of an easement or right-of-way across enrolled land for use as a trail.--Clarity.
Sections 137b.75 and 137b.76 allow an owner of enrolled land to sell, donate or otherwise transfer any portion of the enrolled land to a nonprofit corporation for use as a cemetery, or easement or right of way, without violating the land's preferential assessment.
The term ''transfer'' is not applicable in this instance. As defined in Section 137b.2, ''transfer'' includes ''[a] conveyance of all the contiguous enrolled land described in a single application for preferential assessment under the act'' [emphasis added]. The scenarios included in Sections 137b.75 and 137b.76 only apply to portions of land being ''transferred,'' not the entire parcel. The word ''transfer'' should be replaced in these two sections with the word ''convey.''
15. Section 137b.131. Civil penalties.--Consistency with statute; Clarity
Subsection (c) Appeal hearing.
Subsection (c) provides that a hearing for contesting a civil penalty will be allowed upon ''timely notification.'' The phrase ''timely notification'' is unclear. This subsection should be clarified by replacing ''timely'' with a reference to Section 137b.131(b)(2) in the final-form regulation.
Subsection (d) Final civil penalty.
This subsection, as well as Subsection (b)(2), includes the phrase ''within 10 days'' for the period to file an appeal. Section 5490.5b(b) of the act (72 P. S. § 5490.5b(b)) states, ''If within ten calendar days . . . the person does not notify the county board for assessment appeals . . . the civil penalty shall become final'' [emphasis added]. Section 137b.131(b)(2) also uses the term ''calendar days.'' For consistency with the statute, the phrase ''within 10 calendar days'' should be used in Subsections (d) and (b)(2).
16. Impact of proposed regulation on counties, municipalities and school boards. --Fiscal impact; Implementation procedures; Clarity.
The Preamble indicates that the regulation and the Act will impose costs on counties including revenue shortfalls. Neither the Preamble nor the Regulatory Analysis Form (RAF) provides any estimates concerning the fiscal impact of this regulation on local governments. What will be the economic impact of this regulation on municipalities and school districts?
Department of Health Regulation No. 10-162
School Immunization
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Health (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. Adoption by reference.--Protection of the public health and safety; Reasonableness; Clarity.
In the Preamble, the Department explains that the amendments are based on recommendations of the Advisory Committee on Immunization Practices (ACIP) under the Federal Centers for Disease Control and Prevention. The ACIP is recognized as the authority in this area under Pennsylvania law. Section 2 of the Hepatitis B Prevention Act (35 P. S. § 630.2) requires the Department ''to establish a program for the prevention of hepatitis B through immunization of children consistent with the recommendations of the Advisory Committee on Immunization Practices.''
Is it the Department's intention to follow ACIP guidelines in establishing requirements for school immunization? If so, the Department should consider incorporating ACIP guidelines by reference in the regulation, under to 45 Pa.C.S. § 727 and 1 Pa. Code § 3.41. A concern is that new vaccine availability could lag behind the ACIP guidelines. If this is the case, the regulation should provide a grace period for distribution of new vaccines.
2. Section 23.83. Immunization requirements.--Protection of the public health and safety; Reasonableness; Consistency; Need.
(a) Required for entry.
(b) Required for attendance.
Chickenpox and hepatitis B immunizations are included in the list of immunizations required for entry into kindergarten and first grade under Subsection (a). However, they are not included in the list of immunizations required for attendance under Subsection (b). Why? What is the impact of this requirement when a child moves to Pennsylvania and does not have these two immunizations?
Requirement for chickenpox immunization.
Sections 23.83(a)(8) and (c)(2) require chickenpox immunization as a requirement for entry ''at a public, private, or parochial school in this Commonwealth, including special education and home education programs.'' Public comment was submitted both in support of and in opposition to adding chickenpox immunity to the list of immunizations required for entry into school. The Department should provide additional explanation or documentation of the need to require chickenpox immunization as a prerequisite for school entry.
3. Section 23.84. Exemption from immunization.--Protection of the public health and safety; Need.
Existing Section 23.84 provides an exemption in the event a physician determines an immunization may be detrimental to the health of the child. One commentator stated that immunizations can be detrimental to other persons in the child's household whose immune systems have been compromised by other diseases or treatments. Is this a possibility? If so, the Department should consider addressing this issue in a future rulemaking.
Insurance Department Regulation No. 11-184
Policies and Forms; General Filing Requirements
and General Contents of Forms
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Insurance Department (Department) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. Section 89.2. Scope. and Chapter 89a.--Clarity.
Existing Section 89.2, relating to scope, covers life insurance forms. Section 89a.3 also mentions life insurance forms. For clarity, the Department should explain the differences between Chapter 89 and Chapter 89a, or combine them.
2. Section 89a.6. General contents of forms.--Clarity.
Subsection (c)(3) requires forms to indicate whether the form is a ''participating or nonparticipating'' form. We understand that the intent is to indicate whether a member may participate in the divisible surplus of an insurer. However, one commentator believes members of a health care network may mistakenly believe ''participating and nonparticipating'' refers to providers in the health care provider network. Could a different phrase be used?
3. Electronic filing compatibility.--Clarity.
In regard to electronic filings, there is no mention of how compatibility problems will be resolved. What will happen if a filing is made electronically, but it is unusable or unreadable?
State Board of Education Regulation No. 6-270
Special Education Services and Programs
November 2, 2000We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)), which have not been met. The State Board of Education (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 2, 2002, the regulation will be deemed withdrawn.
1. General.--Clarity.
Course completion and diplomas
Section 14.39 relating to course completion and diplomas is being deleted. We have two questions regarding this deletion. Will a student who satisfactorily completes a special education program developed by an IEP team be issued a diploma? How will parents and school districts know what criteria is necessary for a child with a disability to graduate?
Calendar days and school days
In a number of sections, including Sections 14.131(a)(1), 14.154(d)(1) and 14.161(2), the regulation includes specific time frames. However, it is unclear whether these time frames refer to school or calendar days. These timelines should be clarified and made consistent throughout the regulation.
2. Section 342.1. Definitions.--Clarity.
Mental retardation
This definition is deleted from Chapter 342. It is defined in 34 CFR Section 300.7. The term is used in Section 14.132(2)(vii). Because the federal definition is less specific than the existing definition in Chapter 342, how will parents and school districts measure whether students have ''subaverage general intellectual functioning''? Further, how will reliance upon the Federal definition affect students currently in special education?
3. Section 14.101. Definitions.--Clarity.
Child with a disability
The proposed regulation incorporates by reference the Federal definition of this term at 34 CFR Section 300.7. However, variations of this term appear throughout the regulation. For example, Section 14.121(c) refers to ''students with disabilities.'' The defined term ''child with a disability'' should be used consistently throughout the final-form regulation.
Early intervention services and Mutually agreed-upon written arrangement
The definitions of ''early intervention services'' and ''mutually agreed-upon written arrangement'' are not consistent with the definitions of these terms found in Section 875-103 of the Early Intervention Services System Act (Act) (11 P. S. § 875-103). The regulation should include or reference the definitions used in the Act or explain why the text of these definitions differ from their counterparts in the Act.
Parent
The Federal regulations at 34 CFR 300.20 define the term ''parent'' in two subsections. Subsection (a) generally defines ''parent'' and Subsection (b) defines the term relating to ''foster parent.'' The Federal definition provides ''unless State law prohibits a foster parent from acting as a parent, a State may allow a foster parent to act as a parent.'' The final-form regulation should address the role of foster parents in obtaining special education or early intervention services.
4. Section 14.102. Purpose.--Reasonableness; Clarity.
Subsection (a) uses the term ''quality'' to describe special education services and programs. The term ''quality'' is vague. It should be clarified or deleted from the final-form regulation.
Subsection (a)(2) provides for the incorporation by reference of an extensive list of Federal requirements. We have two concerns with this section. First, the Board is incorporating by reference 25 different citations of 34 CFR Part 300. The extensive reference to the Federal citations gives little guidance to school districts and parents. It would improve the clarity of this regulation if the incorporation by reference were moved to the corresponding sections of the regulation under the applicable subject areas wherever possible.
Second, Subsection (a)(2) uses the phrase ''except as expressly otherwise provided in this chapter. . . .'' We were unable to find any sections in the proposed rulemaking where citations to 34 CFR were not incorporated by reference. For clarity, this phrase should be deleted.
Subsection (a)(3) uses the phrase ''reach their potential.'' This phrase is vague. It should be clarified or deleted from the final-form regulation.
5. Section 14.104. Educational plans.--Clarity.
Subsection (f)(1) states ''services and programs are adequate in quantity and variety to meet the needs of students. . . .'' The terms ''adequate'' and ''variety'' should be clarified or deleted from the final-form regulation.
6. Section 14.121. Child find.--Consistency with statute; Clarity.
Subsection (a)
This subsection requires each school district to ''locate and identify children thought to be eligible for special education. . . .'' Federal regulations, specifically 34 CFR Section 300.125(a)(i), adds the requirement that children with disabilities are also ''evaluated.'' For consistency with Federal regulations, the Board should amend Subsection (a) to reflect that children thought to be eligible for special education are ''identified, located and evaluated.''
Subsection (b)
This subsection requires school districts to conduct ''awareness activities. . . .'' This subsection should include examples of ''awareness activities.''
Subsection (c)
This subsection requires school districts to ''provide annual public notification, . . . with circulation adequate to notify parents throughout the school district. . . .'' What constitutes ''adequate'' circulation?
7. Section 14.122. Screening.--Clarity; Reasonableness.
General
This section requires school districts to establish a system of screening. It is not clear from this section whether the school districts are required to involve parents in this activity. Are school districts required to notify parents before any intervention during the screening phase?
Subsection (a)
In Subsection (a)(1), how do school districts ''identify and provide initial screening and direct intervention for students prior to referral for a special education evaluation''? (Emphasis added.) This should be clarified in the final-form regulation.
Subsection (d)
Subsection (d) provides ''if screening activities have produced little or no improvement within 60 school days after initiation, the student shall be formally referred for evaluation. . . .'' A period of 60 school days could potentially extend to a total of 12 weeks or a 3 month period of time. What is the basis for the 60-school day limit for screening? Would a lesser period of time following a teacher's screening be sufficient to refer a student for an evaluation? For example, would 6 weeks or 30 school days suffice? We request that the Board respond to these questions when the final-form regulation is submitted.
Further, Subsection (d) states that the ''student shall be formally referred for evaluation. . . .'' Is there a distinction for ''formally referred'' as opposed to ''informally''? If so, specific components of the formal referral process should be specified in the final-form regulation. If not, then the term should be deleted from the final-form regulation.
8. Section 14.123. Evaluation.--Reasonableness; Need; Clarity.
General
Existing Chapter 342 includes not only the disabilities that students would be tested for, but also the types of evaluations that would be used in assessing the presence of various disabilities. The proposed regulation incorporates by reference 34 CFR 300.534(a)(1) and 300.531--535 (relating to evaluating students with disabilities). However, the CFR sections do not address specific disabilities or the methods for determining whether a child has a disability. The final-form regulation should include the provisions of 22 Pa. Code § 342.25(f)--(m) (relating to multidisciplinary evaluation). If these provisions are not included, an explanation should be provided in the preamble of the final-form regulation.
Subsection (a)
Subsection (a) requires a group of qualified professionals to review evaluation materials to determine whether a child has a disability. We have two concerns with this subsection and Section 14.124(a).
First, this group of qualified professionals, according to this subsection, ''. . . shall include a certified school psychologist when appropriate.'' (Emphasis added.) When would including a school psychologist be inappropriate in this setting? Who determines when the psychologist's participation is ''appropriate''?
Second, the term ''group of qualified professionals'' is vague. For clarity, the term ''group of qualified professionals'' should be defined in either this section, or Section 14.101 relating to definitions.
Subsection (b)
This subsection requires ''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.'' We have two concerns with this subsection.
First, will parents be allowed to review and discuss drafts of the report with the school administration? If so, language should be included clarifying that parents have this right.
Second, why does a school district need 60 school days from the time it receives written parental consent to complete the evaluation and draft the report? We have the same concern with the 60-day time frame for reevaluation in Section 14.124(b). Sections 14.123 and 14.124 in the final-form regulation should explain the process that occurs during the 60-school day time period.
9. Section 14.131. IEP.--Reasonableness; Need; Clarity.
Subsection (a)
''Notwithstanding the requirements incorporated by reference. . .'' is confusing. As written, this provision does not provide sufficient notice of mandatory standards. Only those specific Federal regulations that do not conflict with the Board's regulations should be incorporated by reference.
As soon as possible
The existing 22 Pa. Code § 14.32(i)(2) provides that ''the IEP of each student shall be implemented as soon as possible, but no later than 10 school days after the completion of the IEP.'' The proposed regulation does not directly address the implementation time frame. Instead, it incorporates 34 CFR 300.342(b)(1), through its general references in Section 14.102, which requires public agencies to implement a student's IEP ''as soon as possible.'' The phrase ''as soon as possible'' in the Federal regulations is vague, and leaves the time frame for implementation open to interpretation. The final-form regulation should retain the 10-school day time frame from the existing regulation, or the Board should explain why 10 school days is no longer appropriate.
Behavior management programs
Commentators have noted that behavior management programs are no longer included in the IEP. The Federal regulations, at 34 CFR 300.347, specify the content of an IEP. Behavior management plans are not included. However, Section 300.346(a)(2)(i), relating to development, review and revision of an IEP, states, ''In the case of a child whose behavior impedes his or her learning . . . consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.''
The behavior management criterion for an IEP is not specifically included in Section 14.131 of the proposed regulation, or Section 300.347 of the Federal regulation, even though the behavior of a student with a disability will be evaluated during the formulation of their IEP. Therefore, the Board should consider retaining ''behavior management programs'' as a component of the IEP or explain why this requirement is not retained.
Subsection (a)(1)
Subsection (a)(1) allows a parent to waive the rule requiring a copy of the comprehensive evaluation report to be disseminated to the child's parents at least 10 days prior to the meeting of the IEP team. What is the process for a parent to waive this rule? This procedure should be clarified in the final-form regulation.
Subsection (a)(2)
Subsection (a)(2) outlines the process for students with disabilities that transfer from one school district in the Commonwealth to another. This subsection also provides that the student's new school district will provide services and programs specified in an interim IEP, ''. . . until a new IEP is developed and implemented and until the completion of due process proceedings under this chapter.'' This subsection implies that due process hearings are an automatic part of transferring a student with disabilities to a new school district. If that is not the case, this provision should indicate that if due process proceedings occur, they must be completed before the new IEP is developed and implemented.
Subsection (a)(3)
Subsection (a)(3) states ''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 is not required to implement the student's existing IEP.'' Why would a Commonwealth school district place a transferring student with a disability into a regular education program without an evaluation?
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