[30 Pa.B. 6021]
[Continued from previous Web Page] 10. Section 14.132. ESY.--Clarity.
The regulation should indicate whether this section applies to eligible young children. An ''eligible young child'' as defined in Section 14.101, is ''a child who is less than the age of beginners and at least 3 years of age and meets the criteria at 34 CFR Section 300.7 (relating to a child with a disability).'' Since the definition of the term ''child with a disability'' includes the term ''eligible young child,'' can an eligible young child qualify for ESY services?
11. Section 14.133. Behavior support.--Reasonableness; Clarity.
Subsection (e) includes a list of aversive techniques that are considered inappropriate and impermissible. Subsection (e)(7) includes ''treatment of a demeaning nature.'' For greater clarity, the final-form regulation should include examples or a definition of ''treatment of a demeaning nature.''
Finally, for consistency, the term ''behavior management'' should be replaced with the IDEA 97 term-of-art ''behavioral management'' in this section, and throughout the regulation.
12. Section 14.141. Educational placement.--Reasonableness; Need; Clarity.
Paragraph (1)
Paragraph (1) defines a number of terms used in reference to educational placement. These terms include ''itinerant,'' ''part time'' and ''resource.'' ''Itinerant'' includes regular classroom instruction for most of the school day, ''with special education services and programs provided by special education personnel inside or outside of the regular class for part of the school day.'' ''Part time'' includes special education services and programs outside of the regular classroom, ''. . . but in a regular school for most of the school day, with some instruction in the regular classroom for part of the school day.'' ''Resource'' denotes regular classroom instruction for most of the school day, ''with special education services provided by special education personnel in a resource room for part of the school day.'' These definitions are confusing. In the final-form regulation, the differences between these three terms should be clarified.
Caseload charts
Paragraph (2) requires each school district to ''. . . establish caseloads for special education and submit a caseload chart to the Department for approval as part of their special education plan. . . .'' We have a number of concerns.
First, why is the Board replacing the former caseload requirements and allowing school districts to determine their own standards?
Second, Paragraph (5) states, ''the Department may impose caseloads on agencies when the caseload is determined to be inadequate.'' What criteria will be used in determining whether a school district's caseload is inadequate? Criteria for the evaluation of caseload charts should be included in this section.
Third, Paragraph (4) provides that caseloads are not applicable to approved private schools. As ''approved private schools'' are included in the definition of ''agency,'' we question why these schools are not subject to the caseload requirement.
Paragraph (6)
Paragraph (6) requires each school district to establish an age range chart for both elementary school classes and secondary school classes and submit this chart to the Department for approval. Paragraph (6)(iii) requires school districts to provide justification for deviating from the Department's recommended age ranges.
Commentators, including the House Education Committee, have stated that, even with the inclusion of Paragraph (6)(iii), age ranges included in 22 Pa. Code Section 342.42(f) should be retained. We agree and request that the Board consider retaining in this regulation the requirements of caseload and age range that are included in 22 Pa. Code Section 342.42(f).
13. Section 14.142. Caseload for special education.--Reasonableness; Clarity.
Caseload chart
This section includes a chart that ''presents the recommended maximum caseload allowed on a single teacher's roll for each school district.'' This revised chart is different from the existing chart contained in Chapter 342 (22 Pa. § 342.42). We have several concerns about Section 14.142.
First, absent any Federal or state requirement to do so, the Board should explain the need for altering the existing table in the final-form regulation.
Second, why are the ratios merely ''recommended''? Under the existing regulation, the caseload was required for every school district in the Commonwealth. In this proposal, the ratios are optional, and therefore, are included in the regulation to offer school districts guidance. A regulation contains mandates and has the full force and effect of law. Nonmandatory provisions should be contained in a separate guidance document. If the ratios are nonmandatory, the word ''recommended'' should be deleted.
Third, the existing caseload chart established the limited number of students in parentheses after each caseload ratio. This number denoted the ''maximum number of exceptional students in the room with the teacher at any one time.'' The revised caseload chart does not include that number. Why has that number been deleted in the caseload table?
Fourth, the existing caseload chart (22 Pa. Code § 342.42(j)) under ''learning support'' and ''life skills support'' included ratios for both part-time and full-time students in both elementary and secondary schools. The proposed rulemaking includes only elementary and secondary caseload ratios for ''life skills'' support, and even then it is only under the ''full-time'' category. Elementary and secondary caseload ratios are not included for ''learning support.'' Why are these ratios and specific educational program breakdowns not included in the final-form regulation?
Finally, the existing caseload chart included a range of students allowed on a single teacher's class rosters. That range has been replaced by a single number. Why has a single number in the final-form regulation replaced the range of students?
14. Section 14.144. Facilities.--Clarity.
Paragraph (1)
This paragraph requires students with disabilities to be provided with ''appropriate classroom space.'' This requirement is vague and open to interpretation. For example, does this provision apply to the actual size and location of the classroom, or the facilities within the classroom? The Board should clarify the meaning of ''appropriate classroom space'' in the final-form regulation.
Paragraph (2)
This paragraph addresses the circumstances under which moving a class is permissible. Does this paragraph apply only to moves within a district, or are moves between districts allowed?
15. Section 14.152. Child find, public awareness and screening.--Clarity.
Subsection (a)
This subsection requires early intervention agencies to ''adopt and use a system to locate and identify eligible young children. . . .'' Federal regulations, specifically 34 CFR 300.125(a)(i), add the requirement that children with disabilities must be ''evaluated.'' For consistency with federal regulations, Subsection (a) should be amended to reflect that early intervention agencies ''identify, locate and evaluate eligible young children.''
Subsection (c)
This subsection requires early intervention agencies to ''notify the public of child identification and the procedures followed to ensure confidentiality of information pertaining to eligible young children.'' What type of notification is required? This requirement should be clarified in the final-form regulation.
16. Section 14.153. Evaluation.--Reasonableness; Clarity.
Paragraphs (4)(i), (ii) and (iii)
Paragraphs (i) and (ii) require an evaluation or reevaluation to be completed and a report presented to the parents within ''60 days'' of the request for evaluation or reevaluation. What process occurs during the 60-day period, and how was this time frame determined? Additionally, the time period should refer to school days consistent with the requirements for special education evaluation and reevaluation in Sections 14.123 and 14.124.
Paragraph (iii) requires reevaluations to occur at least once every 2 years. The existing requirement at 22 Pa. Code 342.53(i) is once every year. Why was the minimum time frame for reevaluations revised?
17. Section 14.154. IEP.--Reasonableness.
Subsection (d)(1) requires that the IEP be implemented ''as soon as possible, but no later than 14 days after completion of the IEP.'' What is the basis for the 14-day limit for implementation?
18. Section 14.155. Range of services.--Statutory authority; Clarity.
In its comments, the Pennsylvania Catholic Conference objects to the licensure requirements referenced in Subsection (a). Section 5 of the Private Academic Schools Act (24 P. S. § 6705) specifically exempts religiously affiliated schools from licensure requirements. Furthermore, Section 304 of the Early Intervention Services System Act (11 P. S. § 875-304) only requires mutually agreeable written arrangements and annual assurance that ''the serviceprovider is in compliance with the Commonwealth's regulations and standards.'' What is the statutory authority for requiring licensure of private preschools?
19. Section 14.156. System of quality assurance.--Reasonableness; Clarity.
Paragraph (2)(i)
This paragraph states that the caseload for supportive intervention ''should be 10--40 children with no more than 6 eligible young children serviced in the same session.'' (Emphasis added.) We have three concerns.
First, the term ''supportive intervention'' should be defined in the final-form regulation.
Second, this paragraph states what the caseload ''should be.'' As written, this provision appears to be a guideline, rather than a mandate. A regulation has the full force and effect of law. Nonmandatory provisions should not be included in regulations. If the caseload range contained in this paragraph is a requirement, then the language should be revised to so indicate. If the caseload range is a recommendation, the language should be placed in a statement of policy.
Finally, how was the caseload range determined?
Paragraph (2)(ii)
Paragraphs (A), (B) and (C) list the staff-to-children ratios for children functioning at different developmental levels. How were these ratios determined?
Paragraph (2)(iii)
This paragraph specifies that for home based programs, the caseload ratio is 10 to 20 eligible young children per teacher. This ratio appears to include a broad range of children for which a teacher may provide services. Please explain how this ratio was determined.
Paragraph (2)(iv)
This paragraph provides that the speech and language itinerant program caseload for a single teacher is 10 to 50 eligible young children. This appears to be a broad range. How was this ratio determined?
Paragraph (2)(v)
Under this paragraph, for ''early intervention programs where physical therapy or occupational therapy, or both, is specified on the IEP, individual caseloads are determined with consideration of the type of services delivered and the time required for those services.'' For these situations, does the individual therapist determine the caseload?
20. Section 14.157. Exit criteria.--Reasonableness; Clarity.
Subsection (a)(1) cross-references 11 P. S. 875-301(1). However, this citation does not appear to relate to exit criteria. Is this citation correct?
Subsection (a)(2) establishes a 4 month time period during which a child functions within the range of normal development as one of the criteria to exit the early intervention program. The existing time period is 6 months. Why is this time period is being reduced?
21. Section 14.158. Data collection and confidentiality.--Clarity.
The title of this section references confidentiality. However, there are no confidentiality provisions in this section. This section should be reviewed to reconcile this inconsistency.
22. Section 14.161. Prehearing conferences.--Clarity.
Inclusion of early intervention agencies
This section of the regulation addresses prehearing conferences as they relate to when ''the parent disapproves the school district's proposed action or refusal to act.'' Do the provisions in this section also apply to early intervention agencies? If so, they should be added to this section. If not, please explain the options for parents when they disagree with the action or inaction of the early intervention agency.
Additionally, if early intervention agencies are included under this section, the term ''young child'' in the first sentence (relating to the purpose of the section) should be replaced with the defined term ''eligible young child.''
Paragraph (2)
Under this paragraph, ''When requested, the school district shall convene the prehearing conference within 10 days of receipt of the parent notice and shall be chaired by the superintendent or the superintendent's designee.'' There are two concerns.
First, a hearing officer has the discretion to schedule a prehearing conference with or without a party's request. Therefore, the word ''shall'' should be changed to ''may'' in this paragraph.
Second, the regulation should clarify what constitutes ''receipt'' of a parent notice.
Paragraph (3)
This paragraph states that ''if the prehearing conference does not result in an agreement, the provisions under 14.162 (relating to impartial due process hearing and expedited due process hearing) shall be applied.'' In its comments, the House Education Committee notes that the Pennsylvania mediation system could be applied and that parents should not feel compelled to enter a due process hearing. Consequently, the House Education Committee suggests changing ''shall be applied'' to ''may be applied.'' We concur. Also, to improve clarity, a reference to the mediation process should be included in this subsection.
23. Section 14.162. Impartial due process hearing and expedited due process hearing.--Statutory authority; Reasonableness; Clarity.
Subsection (b)
This subsection consists of one long sentence, which is confusing and difficult to read. The clarity of this section could be improved by breaking the sentence into subparagraphs.
Subsection (c)
This subsection allows the school district or early intervention agency to request a hearing to proceed with an initial evaluation or educational placement when they have been unable to obtain consent from the parents. In its comments, the House Education Committee recommends deleting the reference to early intervention agencies. The Committee notes that the early intervention system is optional, since parents may choose whether or not they want these services for their child.
What is the statutory authority for the early intervention agency to proceed with evaluation or placement in the absence of parental consent? If there is none, the reference to early intervention agencies should be deleted.
Subsection (d)
This subsection requires a hearing to be held at ''a place reasonably convenient to the parents.'' This provision should be revised to require the hearing to be held at both a place and time that is convenient for the parents.
Subsection (i)
The Board's explanation of this subsection in the preamble does not clearly convey the intent of the regulatory language. We suggest that this discussion be redrafted to clarify that a party does not have to be represented by a lawyer in a due process hearing. A party may be accompanied, assisted or advised by a person with expertise in special education. However, only a lawyer may perform functions in the hearing that constitute the practice of law.
Environmental Quality Board Regulation No. 7-356
Administration of Land Recycling Program
November 3, 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)) that has not been met. The Environmental Quality Board (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by October 4, 2002, the regulation will be deemed withdrawn.
1. Section 250.5. Public notice by applicant.--Clarity.
Subsection (d)
Subsection (d) states ''the remediator shall send notice to every municipality and community water supplier servicing the area. . . .'' Will the remediator have to ''send notice'' through first class or registered mail? Will notice by phone or electronic mail suffice? The final-form regulation should include a clarification of the notice requirement.
Subsection (e)
Subsection (e) begins with the phrase ''Upon receipt of a request. . . .'' What constitutes ''receipt''? Additionally, upon receipt, the ''municipality and community water supplier shall have 45 days to indicate . . . any information relevant to the requirements of § 250.303.'' When does the 45-day time frame begin? The final-form regulation should indicate how receipt is documented.
2. Section 250.6. Public participation.--Reasonableness; Clarity.
Subsection (e) requires a person making a precertification determination request for a nonuse aquifer to develop and implement a public involvement plan. We have a number of concerns regarding this subsection.
First, this subsection requires that a public involvement plan ''. . . shall be developed by the person making a precertification determination request under § 250.303(f). . . .'' Section 250.303(f) allows only municipal authorities and political subdivisions to make a precertification determination request. Is this the intent? Should a company interested in remediating the site also be able to develop a public involvement plan?
Second, Subsection (e)(2) requires a person making a precertification determination request to implement a public involvement plan. One component of the public involvement plan is a 90-day comment period. How was the 90-day time frame time determined? Would 45 or 60 days be sufficient time for local governments to respond?
Third, Subsections (c)(1) and (e)(3) require the public to have access to documentation at ''convenient locations.'' For clarity, examples of ''convenient locations'' should be included in these subsections in the final-form regulation.
Fourth, Subsections (c)(1) and (e)(3) should require the documentation to be available to the public at convenient times. They should include examples of convenient times.
Finally, Subsections (c)(1) and (e)(5) require ''A location near the proposed nonuse aquifer designation site for any public hearings and meetings. . . .'' The word ''near'' is vague and needs clarification.
3. Section 250.303. Aquifer determination; current use and currently planned use of aquifer groundwater.--Consistency with the statute; Clarity.
We have several concerns with Subsection (f). First, the regulation refers to ''receipt of a nonuse aquifer determination request, and receipt of the required public involvement plan.'' The final-form regulation should clarify what constitutes ''receipt.''
Second, Subsection (f) establishes a 3 year expiration date for a nonuse aquifer determination made under this subsection. How was the 3 year period determined? Would a longer period of time suffice? Additionally, what does the renewal process entail? Is another public involvement plan required?
Finally, under this subsection, the nonuse aquifer determination ''may be updated at any time additional relevant information comes to the attention of the Department.'' (Emphasis added.) For clarity, the final-form regulation should include examples of what type of information would be considered relevant to updating a nonuse aquifer determination.
4. Section 250.311. Evaluation of ecological receptors.--Clarity.
Subsections (c) and (d) address ''Constituents of Potential Ecological Concern (CPECs) associated with a release at the site. . . .'' Does ''release'' refer to any historical release on the site, or only the release that is currently being remediated?
5. Section 250.707. Statistical tests.--Clarity.
There are several concerns with this section. First, Subsection 250.707(b)(1)(iii) uses the phrase ''full site characterization.'' It is our understanding that the required components of a ''full site characterization'' are listed in existing Subsections 250.204(b)--(e). If so, Subsection 250.707(b)(1)(iii) should cross-reference the subsections that describe a ''full site characterization.''
Second, the regulation only addresses situations in which a ''full site characterization'' has not been done in association with an excavation remediation. What requirements apply when a ''full site characterization'' has been done?
Third, does Subsection 250.707(b)(1)(iii) pertain only to underground storage tank systems or does it involve releases in other situations?
Finally, Subsection 250.707(b)(1)(iii)(C) states: ''All sample results shall meet the Statewide health standards.'' The subsection should cross-reference or identify the appropriate ''Statewide health standards.''
6. Appendix A, Medium-Specific Concentrations (MSCs) for Organic Regulated Substances, Physical and Toxicological Properties.--Consistency with other regulations; Reasonableness; Clarity.
Part of this regulation was a correction of typographical and calculation errors in Appendix A. This is a continual process. BP Exploration & Oil, Inc., Pennsylvania Electric Association, PPL Generation LLC and Energy Association of Pennsylvania noted the need for additional corrections. The Appendix should be reviewed and corrected in developing the final-form regulation.
In particular, there is a concern with the standards and calculations for polychlorinated biphenyls (PCBs). The Energy Association of Pennsylvania noted that the standards and calculations for PCBs in the proposed regulation are inconsistent with and more stringent than the Federal standards of the U.S. Environmental Protection Agency. The standards for monitoring PCBs need to be clarified. If they are more stringent than comparable Federal standards, the need for the higher standards should be justified.
JOHN R. MCGINLEY,
Chairperson
[Pa.B. Doc. No. 00-2000. Filed for public inspection November 17, 2000, 9:00 a.m.]
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