NOTICES
Notice of Comments Issued
[33 Pa.B. 5580] Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the Committee comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
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IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 7-387 Environmental Quality Board 9/29/03 10/29/03 Radiological Health (33 Pa.B. 4393 (August 30, 2003)) 6-279 State Board of Education 9/29/03 10/29/03 Pupil Attendance (33 Pa.B. 4300 (August 30, 2003)) 6-287 State Board of Education 9/29/03 10/29/03 Special Education Services and Programs (33 Pa.B. 4306 (August 30, 2003))
Environmental Quality Board Regulation No. 7-387
Radiological Health
October 29, 2003 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Environmental Quality Board must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on September 29, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 215.24. Human use.--Reasonableness; Consistency with other regulations; Clarity.
Subsection (b) states:
Only auxiliary personnel who have met the applicable radiologic requirements of 49 Pa. Code, Part I, Subpart A (relating to professional and occupational affairs) may use radiation sources in the healing arts when employed by a licensed practitioner of the healing arts. . . .'' (Emphasis added.)
Subpart A of 49 Pa. Code contains over 30 chapters for various professions, including accountancy, landscape architecture, physical therapy and veterinary medicine. The existing definition of a ''licensed practitioner of the healing arts'' in 25 Pa. Code § 215.2 covers only six professional areas: ''medicine, surgery, dentistry, osteopathy, podiatry and chiropractic.'' Rather than refer the reader to Subpart A in its entirety, § 215.24(b) should reference the specific chapters that set forth the procedures and requirements for auxiliary personnel.
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State Board of Education Regulation No. 6-279
Pupil Attendance
October 29, 2003 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Education (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on September 29, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 11.1. School term.--Clarity.
This section refers to ''meritorious educational programs.'' The Board should define this term in the final-form regulation.
2. Section 11.2. School day.--Clarity.
The existing text of this section refers to ''instructional activities.'' Clarity would be improved by defining this term in the final-form regulation.
3. Section 11.5. Part-time attendance for potential graduates.--Clarity.
This section addresses student attendance at a ''postsecondary institution.'' Clarity would be improved by defining this term.
4. Section 11.11. Entitlement of resident children to attend public schools.--Reasonableness; Clarity.
Subsection (b) refers to ''any other documentation specifically required by law.'' Based on our discussion with the Board, this phrase is intended to reference information requirements contained in 24 P. S. § 13-1302(2). Section 13-1302(2) of 24 P. S. addresses nonresident children living with a district resident and states, in part, ''The school board, pursuant to guidelines issued by the Department of Education, may require other reasonable information to be submitted by the resident to substantiate the sworn statement.''
The Department of Education (Department) has established guidelines for ''other reasonable information'' in the Basic Education Circular (BEC) entitled ''Education of Children Residing With an Adult Other Than Natural Parent.'' The BEC specifically lists supplemental information that is required to establish residency in a school district.
There are two issues. First, how is this BEC relevant to § 11.11? The BEC addresses nonresident children, but § 11.11 pertains to resident children. Section 11.19 of the proposed regulation addresses nonresident children. Since it appears that the BEC and 24 P. S. § 13-1302(2) would apply to § 11.19 and not § 11.11, this language should be deleted from § 11.11 in the final-form regulation.
Second, if the Board can explain why nonresident children should be addressed in this section, we recommend that subsection (b) be revised by deleting ''any other documentation specifically required by law'' and inserting the supplemental information listed in the BEC.
5. Section 11.19. Nonresident child living with a district resident.--Reasonableness; Clarity.
The last sentence of this section states ''The school board may require other reasonable information to be submitted by the resident to substantiate the sworn statement in accordance with the guidelines established by the Department of Education.'' The Board has explained that ''other reasonable information'' refers to the information requirements contained in the BEC entitled ''Education of Children Residing With an Adult Other Than Natural Parent.'' Consistent with our recommendation in Issue 4 regarding § 11.11, the Board should delete the last sentence and replace it with the list of information requirements in the BEC.
Also, while this section establishes the entitlement for certain nonresident children living with district residents to attend the district's public schools, it contains no timeframe for enrollment. Section 11.11 contains a time frame for enrollment. Why isn't the same time frame included in § 11.19?
6. Section 11.25. Temporary excusals due to illness or other urgent reasons.--Clarity.
Subsection (b) states, in part, ''Department of Education approval is required to extend the provision of homebound instruction and shall be reevaluated every 3 months.'' The final-form regulation should clarify that the school district, not the parent or guardian, is responsible for seeking Department approval to extend the provision of homebound instruction.
7. Section 11.27. Graduation.--Clarity.
Paragraph (4) states ''School districts, AVTSs and charter schools may include in their average daily membership count students with disabilities identified under Chapter 14 (relating to special education services and programs) who choose to participate in graduation ceremonies with their graduating class and continue to receive education services but are not awarded a diploma.'' The Pennsylvania School Boards Association (PSBA) believes this language suggests that a student with disabilities has an entitlement to participate in graduation ceremonies.
The Board has informed us that this provision was not intended to deny the school districts discretion to determine when students with disabilities may participate in graduation ceremonies. Rather, the school districts will retain the option to permit students with disabilities to participate in graduation ceremonies. We suggest that the final-form regulation be amended to reflect the fact that the choice to allow students with disabilities to participate in graduation ceremonies rests with the school district, not the parent or the student.
8. Section 11.28. Out-of-school programs and part-time employment.--Clarity.
Subsection (a) states that students engaged part-time in an ''out-of-school program'' shall be counted for reimbursement purposes. The final-form regulation should either define ''out-of-school program'' or provide examples of these programs in this section.
9. Section 11.31. Students not enrolled in public schools due to private tutoring. --Clarity.
The existing text of subsection (b) states that superintendents may ''require evidence deemed necessary to demonstrate that the student is making satisfactory progress.'' Under what circumstances would additional evidence be required? What type of evidence would be required?
10. Section 11.31a. Students not enrolled in public schools due to participation in a home education program.--Clarity.
In its comments, PSBA suggests that this section be amended to include a reference to section 1327(d) of the Public School Code of 1949 to recognize the needs of students who are eligible for special education services. We agree and suggest the Board add this reference.
11. Miscellaneous clarity issues.
* The title of Chapter 11 is ''pupil attendance,'' but in the body of the regulation, all references to ''pupil'' are being changed to ''student.'' In the final-form regulation, the title of the chapter should be changed to ''student attendance.''
* In § 11.12, the language ''occurs first'' is being changed to ''should first occur.'' The same language change is proposed in § 11.13 and a similar language change is proposed in § 11.24 (''occurs'' is being changed to ''should occur''). The existing language in each of these sections is clearer than the proposed revisions. The Board should retain the original language.
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State Board of Education Regulation No. 6-287
Special Education Services and Programs
October 29, 2003 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Education (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on September 29, 2003. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
General.--Reasonableness and need.
This proposed regulation removes the provision which allows a local education agency to begin due process proceedings when a parent objects to initial special education services. The Board is making this change so § 14.62(c) will be consistent with requirements of the Federal Department of Education's Office of Special Education Programs (OSEP). The House Education Committee and the Pennsylvania School Boards Association request that the Board formally challenge OSEP's interpretation before promulgating this rulemaking. The Board has stated that challenging OSEP's interpretation is not a viable option.
To justify its position, the Board has provided us with correspondence that includes: an e-mail requesting the Board change its regulations to conform with OSEP's interpretation; another e-mail conditioning further funding on the Board's revision of this regulation per OSEP's interpretation; and OSEP's approval of the Board's amendment. This correspondence is important in establishing the necessity of this rulemaking, as well as validating its position not to challenge OSEP's interpretation. Therefore, the Board should include the substance of the previously mentioned directives in the preamble to the final-form regulation.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 03-2171. Filed for public inspection November 7, 2003, 9:00 a.m.]
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