[38 Pa.B. 3575]
[Saturday, June 28, 2008]
[Continued from previous Web Page]
CHILD FIND, SCREENING AND EVALUATION § 14.121. Child find.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.111 (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. Written information shall be published in the school district handbook and school district web site. The public awareness effort must include information regarding potential signs of developmental delays and other risk factors that could indicate disabilities.
(c) Each school district shall provide annual public notification, published or announced in newspapers, electronic media and other media, 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.
(d) Intermediate units are responsible for child find activities necessary to provide equitable services consistent with 34 CFR 300.130--300.144, regarding children with disabilities enrolled by their parents in private schools.
§ 14.122. Screening.
(a) Each school district shall establish a system of screening, which may include early intervening services, to accomplish the following:
(1) Identify and provide initial screening 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. To provide this support, school districts may implement instructional support teams according to Department guidelines or use an alternative process.
(3) Identify students who may need special education services and programs.
(b) The screening process must include:
(1) Hearing and vision screening in accordance with section 1402 of the School Code (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.
(2) Screening at reasonable intervals to determine whether all students are performing based on grade-appropriate standards in core academic subjects.
(c) Each school district may develop a program of early intervening services. In the case of school districts meeting the criteria in 34 CFR 300.646(b)(2) (relating to disproportionality), as established by the Department, the early intervening services are required and must include:
(1) A verification that the student was provided with appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965 (ESEA) (20 U.S.C.A. § 6368(3)), and appropriate instruction in math.
(2) For students with academic concerns, an assessment of the student's performance in relation to State-approved grade level standards.
(3) For students with behavioral concerns, a systematic observation of the student's behavior in the school environment where the student is displaying difficulty.
(4) A research-based intervention to increase the student's rate of learning or behavior change based on the results of the assessments under paragraph (2) or (3).
(5) Repeated assessments of achievement or behavior, or both, conducted at reasonable intervals, reflecting formal monitoring of student progress during the interventions.
(6) A determination as to whether the student's assessed difficulties are the result of a lack of instruction or limited English proficiency.
(7) 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.
(8) Documentation that information about the student's progress as identified in paragraph (5) was periodically provided to the student's parents.
(d) Screening or early intervening 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 early intervening 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 300.306 (relating to determination of eligibility), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, mental retardation, multiple disabilities, other health impairments, specific learning disability or traumatic brain injury.
(b) In addition to the requirements incorporated by reference in 34 CFR 300.301 (relating to initial evaluations), the initial evaluation shall be completed and a copy of the evaluation report presented to the parents no later than 60-calendar days after the agency receives written parental consent for evaluation, except that the calendar days from the day after the last day of the spring school term up to and including the day before the first day of the subsequent fall school term will not be counted.
(c) Parents may request an evaluation at any time, and the request must be in writing. The school entity shall make the permission to evaluate form readily available for that purpose. If a request is made orally to any professional employee or administrator of the school entity, that individual shall provide a copy of the permission to evaluate form to the parents within 10-calendar days of the oral request.
(d) Copies of the evaluation report shall be disseminated to the parents at least 10 school days prior to the meeting of the IEP team, unless this requirement is waived by a parent in writing.
§ 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 300.303 (relating to reevaluations), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, mental retardation, multiple disabilities, other health impairment, specific learning disability and traumatic brain injury.
(b) In addition to the requirements incorporated by reference in 34 CFR 300.303, the reevaluation time line will be 60-calendar days, except that the calendar days from the day after the last day of the spring school term up to and including the day before the first day of the subsequent fall school term will not be counted.
(c) Students with disabilities who are identified as mentally retarded shall be reevaluated at least once every 2 years.
(d) Copies of the reevaluation report shall be disseminated to the parents at least 10 school days prior to the meeting of the IEP team, unless this requirement is waived by a parent in writing.
§ 14.125. Criteria for the determination of specific learning disabilities.
This section contains the State-level criteria for determining the existence of a specific learning disability. Each school district and intermediate unit shall develop procedures for the determination of specific learning disabilities that conform to criteria in this section. These procedures shall be included in the school district's and intermediate unit's special education plan in accordance with § 14.104(b) (relating to special education plans). To determine that a child has a specific learning disability, the school district or intermediate unit shall:
(1) Address whether the child does not achieve adequately for the child's age or meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and scientifically based instruction appropriate for the child's age or State-approved grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2) Use one of the following procedures:
(i) A process based on the child's response to scientific, research-based intervention, which includes documentation that:
(A) The student received high quality instruction in the general education setting.
(B) Research-based interventions were provided to the student.
(C) Student progress was regularly monitored.
(ii) A process that examines whether a child exhibits a pattern of strengths and weaknesses, relative to intellectual ability as defined by a severe discrepancy between intellectual ability and achievement, or relative to age or grade.
(3) Have determined that its findings under this section are not primarily the result of:
(i) A visual, hearing or orthopedic disability.
(ii) Mental retardation.
(iii) Emotional disturbance.
(iv) Cultural factors.
(v) Environmental or economic disadvantage.
(vi) Limited English proficiency.
(4) Ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or mathematics by considering documentation that:
(i) Prior to, or as a part of, the referral process, the child was provided scientifically-based instruction in regular education settings, delivered by qualified personnel, as indicated by observations of routine classroom instruction.
(ii) Repeated assessments of achievement were conducted at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents.
IEP § 14.131. IEP.
(a) In addition to the requirements incorporated by reference (see 34 CFR 300.320--300.324), the IEP of each student with a disability must include:
(1) A description of the type or types of support as defined in this paragraph that the student will receive, the determination of which may not be based on the categories of the child's disability alone. Students may receive more than one type of support as appropriate and as outlined in the IEP and in accordance with this chapter. Special education supports and services may be delivered in the regular classroom setting and other settings as determined by the IEP team. In determining the educational placement, the IEP team must first consider the regular classroom with the provision of supplementary aids and services before considering the provision of services in other settings.
(i) Autistic support. Services for students with the disability of autism who require services to address needs primarily in the areas of communication, social skills or behaviors consistent with those of autism spectrum disorders. The IEP for these students must address needs as identified by the team which may include, as appropriate, the verbal and nonverbal communication needs of the child; social interaction skills and proficiencies; the child's response to sensory experiences and changes in the environment, daily routine and schedules; and, the need for positive behavior supports or behavioral interventions.
(ii) Blind-visually impaired support. Services for students with the disability of visual impairment including blindness, who require services to address needs primarily in the areas of accessing print and other visually-presented materials, orientation and mobility, accessing public and private accommodations, or use of assistive technologies designed for individuals with visual impairments or blindness. For students who are blind or visually impaired, the IEP must include a description of the instruction in Braille and the use of Braille unless the IEP team determines, after the evaluation of the child's reading and writing needs, and appropriate reading and writing media, the extent to which Braille will be taught and used for the student's learning materials.
(iii) Deaf and hard of hearing support. Services for students with the disability of deafness or hearing impairment, who require services to address needs primarily in the area of reading, communication, accessing public and private accommodations or use of assistive technologies designed for individuals with deafness or hearing impairment. For these students, the IEP must include a communication plan to address the language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and assistive technology devices and services.
(iv) Emotional support. Services for students with a disability who require services primarily in the areas of social or emotional skills development or functional behavior.
(v) Learning support. Services for students with a disability who require services primarily in the areas of reading, writing, mathematics, or speaking or listening skills related to academic performance.
(vi) Life skills support. Services for students with a disability who require services primarily in the areas of academic, functional or vocational skills necessary for independent living.
(vii) Multiple disabilities support. Services for students with more than one disability the result of which is severe impairment requiring services primarily in the areas of academic, functional or vocational skills necessary for independent living.
(viii) Physical support. Services for students with a physical disability who require services primarily in the areas of functional motor skill development, including adaptive physical education or use of assistive technologies designed to provide or facilitate the development of functional motor capacity or skills.
(ix) Speech and language support. Services for students with speech and language impairments who require services primarily in the areas of communication or use of assistive technologies designed to provide or facilitate the development of communication capacity or skills.
(2) Supplementary aids and services in accordance with 34 CFR 300.42 (relating to supplementary aids and services).
(3) A description of the type or types of support as defined in § 14.105 (relating to personnel).
(4) The location where the student attends school and whether this is the school the student would attend if the student did not have an IEP.
(5) For students who are 14 years of age or older, a transition plan that includes appropriate measurable postsecondary goals related to training, education, employment and, when appropriate, independent living skills.
(6) The IEP of each student shall be implemented as soon as possible, but no later than 10 school days after its completion.
(7) Every student receiving special education and related services provided for in an IEP developed prior to July 1, 2008, 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 300.324 (relating to development, review, and revision of IEP), each school entity shall designate persons responsible to coordinate transition activities.
§ 14.132. ESY.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.106 (relating to extended school year services), school entities shall use the following 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 entity 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 will be considered determinative:
(i) 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 (Regression).
(ii) 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 (Recoupment).
(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.
(b) Reliable sources of information regarding a student's educational needs, propensity to progress, recoupment potential and year-to-year progress may include the following:
(1) Progress on goals in consecutive IEPs.
(2) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.
(3) Reports by parents of negative changes in adaptive behaviors or in other skill areas.
(4) Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.
(5) Observations and opinions by educators, parents and others.
(6) Results of tests, including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.
(c) The need for ESY services will not be based on any of the following:
(1) The desire or need for day care or respite care services.
(2) The desire or need for a summer recreation program.
(3) The desire or need for other programs or services that, while they may provide educational benefit, are not required to ensure the provision of a free appropriate public education.
(d) Students with severe disabilities such as autism/pervasive developmental disorder, serious emotional disturbance; severe mental retardation; degenerative impairments with mental involvement; and severe multiple disabilities require expeditious determinations of eligibility for ESY services to be provided as follows:
(1) Parents of students with severe disabilities shall be notified by the school entity of the annual review meeting to encourage their participation.
(2) The IEP review meeting must occur no later than February 28 of each school year for students with severe disabilities.
(3) The Notice of Recommended Educational Placement shall be issued to the parent no later than March 31 of the school year for students with severe disabilities.
(4) If a student with a severe disability transfers into a school entity after the dates in paragraphs (2) and (3), and the ESY eligibility decision has not been made, the eligibility and program content must be determined at the IEP meeting.
(e) School entities shall consider the eligibility for ESY services of all students with disabilities at the IEP meeting. ESY determinations for students other than those described in subsection (d) are not subject to the time lines in subsection (d). However, these determinations shall still be made in a timely manner. If the parents disagree with the school entity's recommendation on ESY, the parents will be afforded an expedited due process hearing.
§ 14.133. Positive behavior support.
(a) Positive, rather than negative, measures must form the basis of behavior support programs to ensure that all students and eligible young children shall be free from demeaning treatment, the use of aversive techniques and the unreasonable use of restraints. Behavior support programs must include research based practices and techniques to develop and maintain skills that will enhance an individual student's or eligible young child's opportunity for learning and self-fulfillment. Behavior support programs and plans must be based on a functional assessment of behavior and utilize positive behavior techniques. When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student or eligible young child shall be the least intrusive necessary. The use of restraints is considered a measure of last resort, only to be used after other less restrictive measures, including de-escalation techniques, in accord with subsection (c)(2).
(b) Notwithstanding the requirements incorporated by reference in 34 CFR 300.34, 300.324 and 300.530 (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 support--The development, change and maintenance of selected behaviors through the systematic application of behavior change techniques.
Positive behavior support plans--A plan for students with disabilities and eligible young children who require specific intervention to address behavior that interferes with learning. A positive behavior support plan shall be developed by the IEP team, be based on a functional behavior assessment, and become part of the individual eligible young child's or student's IEP. These plans must include methods that utilize positive reinforcement and other positive techniques to shape a student's or eligible young child's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.
Restraints--
(i) The application of physical force, with or without the use of any device, for the purpose of restraining the free movement of a student's or eligible young child's body.
(ii) The term does not include briefly holding, without force, a student or eligible young child to calm or comfort him, guiding a student or eligible young child to an appropriate activity, or holding a student's or eligible young child's hand to safely escort her from one area to another.
(iii) The term does not include hand-over-hand assistance with feeding or task completion and techniques prescribed by a qualified medical professional for reasons of safety or for therapeutic or medical treatment, as agreed to by the student's or eligible young child's parents and specified in the IEP. Devices used for physical or occupational therapy, seatbelts in wheelchairs or on toilets used for balance and safety, safety harnesses in buses, and functional positioning devices are examples of mechanical restraints which are excluded from this definition, and governed by subsection (d).
(c) Restraints to control acute or episodic aggressive or self-injurious 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 employees, and only when less restrictive measures and techniques have proven to be or are less effective.
(1) The use of restraints to control the aggressive behavior of an individual student or eligible young child shall cause the school entity to notify the parent of the use of restraint and shall cause a meeting of the IEP team within 10 school days of the inappropriate behavior causing the use of restraints, unless the parent, after written notice, agrees in writing to waive the meeting. At this meeting, the IEP team shall consider whether the student or eligible young child needs a functional behavioral assessment, reevaluation, a new or revised positive behavior support plan, or a change of placement to address the inappropriate behavior.
(2) The use of restraints may only be included in a student's or eligible young child's IEP when the following conditions apply:
(i) The restraint is utilized with specific component elements of positive behavior support.
(ii) The restraint is used in conjunction with the teaching of socially acceptable alternative skills to replace problem behavior.
(iii) Staff are authorized to use the procedure and have received the staff training required.
(iv) There is a plan in place for eliminating the use of restraint through the application of positive behavior support.
(3) The use of prone restraints is prohibited in educational programs. Prone restraints are those in which a student or eligible young child is held face down on the floor.
(4) 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.
(5) School entities shall maintain and report data on the use of restraints as prescribed by the Secretary. The report shall be reviewed during cyclical compliance monitoring conducted by the Department.
(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 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 placement).
(7) Treatment of a demeaning nature.
(8) Electric shock.
(f) School entities have the primary responsibility for ensuring that positive behavior support 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 and procedures on the use of positive behavior support techniques and obtaining parental consent prior to the use of restraints or intrusive procedures as provided in subsection (c).
(g) In accordance with their plans, agencies may convene a review, including the use of human rights committees, to oversee the use of restrictive or intrusive procedures or restraints.
(h) Subsequent to a referral to law enforcement, for students with disabilities who have positive behavior support plans, an updated functional behavior assessment and positive behavior support plan shall be required.
EDUCATIONAL PLACEMENT § 14.141. (Reserved).
§ 14.142. (Reserved).
§ 14.143. Disciplinary placements.
(a) Notwithstanding the requirements incorporated by reference in 34 CFR 300.530(b) and 300.536 (relating to authority of school personnel; and change of placement because of disciplinary removals), a disciplinary exclusion of a student with a disability for more than 15 cumulative school days in a school year will be considered a pattern so as to be deemed a change in educational placement.
(b) A removal from school is a change of placement for a student who is identified with mental retardation, except if the student's actions are consistent with 34 CFR 300.530--300.535 (relating to authority of school personnel; determination of setting; appeal; placement during appeals; protections for children not determined eligible for special education and related services; referral to and action by law enforcement; and judicial authorities).
§ 14.145. Least restrictive environment requirements.
Students with disabilities shall be educated in the least restrictive environment. Each school entity shall ensure that:
(1) To the maximum extent appropriate, and as provided in the IEP, the student with a disability is educated with nondisabled peers.
(2) Special classes, separate schooling or other removal of a student with a disability from the regular education class occurs only when the nature or severity of the disability is such that education in the regular education class with the use of appropriate supplementary aids and services cannot be achieved satisfactorily.
(3) A student may not be determined to require separate education because the child cannot achieve at the same level as classmates who do not have disabilities if the child can, with the full range of supplementary aids and services, make meaningful progress in the goals included in the student's IEP.
(4) A student may not be removed from or determined to be ineligible for placement in a regular education classroom solely because of the nature or severity of the student's disability, or solely because educating the student in the regular education classroom would necessitate additional cost or for administrative convenience.
(5) School entities shall be required to provide access to a full continuum of placement options.
§ 14.146. Age range restrictions.
(a) The maximum age range in specialized settings shall be 3 years in elementary school (grades K--6) and 4 years in secondary school (grades 7--12).
(b) A student with a disability may not be placed in a class in which the chronological age from the youngest to the oldest student exceeds these limits unless an exception is determined to be appropriate by the IEP team of that student and is justified in the IEP.
EARLY INTERVENTION § 14.151. Purpose.
(a) This section and §§ 14.152--14.158 (relating to early intervention) apply to services and programs for eligible young children.
(b) Notwithstanding the requirements incorporated by reference, with regard to early intervention services:
(1) The Department will provide for the delivery of early intervention services.
(2) The Department may provide for the delivery of some or all of these services through mutually agreed-upon written arrangements. Each mutually agreed-upon written arrangement may include memoranda of understanding under an approved plan submitted to the Department by a school entity or other agencies.
§ 14.153. Evaluation.
Notwithstanding the requirements in 34 CFR 300.122 (relating to evaluation):
(1) Evaluations shall be conducted by early intervention agencies for children who are thought to be eligible for early intervention and who are referred for evaluation.
(2) Evaluations shall be sufficient in scope and depth to investigate information relevant to the young child's suspected disability, including physical development, cognitive and sensory development, learning problems, learning strengths and educational need, communication development, social and emotional development, self-help skills and health considerations, as well as an assessment of the family's perceived strengths and needs which will enhance the child's development.
(3) The assessment must include information to assist the group of qualified professionals and parents to determine whether the child has a disability and needs special education and related services.
(4) The following time line applies to the completion of evaluations and reevaluations under this section:
(i) Initial evaluation or reevaluation shall be completed and a copy of the evaluation report presented to the parents no later than 60 calendar days after the early intervention agency receives written parental consent.
(ii) Notwithstanding the requirements incorporated by reference in 34 CFR 300.303 (relating to reevaluations), a reevaluation report shall be provided within 60 calendar days from the date that the parental consent for reevaluation was received.
(iii) Reevaluations shall occur at least every 2 years.
(5) Each eligible young child shall be evaluated by an MDT, to make a determination of continued eligibility for early intervention services and to develop an evaluation report in accordance with the requirements concerning evaluation under § 14.123 (relating to evaluation), excluding the provision to include a certified school psychologist where appropriate under § 14.123(a).
§ 14.154. IEP.
(a) An IEP is a written plan for the provision of appropriate early intervention services to an eligible young child, including services to enable the family to enhance the young child's development. The IEP shall be based on and be responsive to the results of the evaluation.
(b) Notwithstanding the requirements incorporated by reference, the IEP team shall include:
(1) At least one special education teacher or special education provider.
(2) An agency representative familiar with appropriate activities for preschool children and knowledgeable about the availability of the resources of the early intervention agency. With regard to the adoption of 34 CFR 300.344(a)(4) (relating to IEP team), the agency representative shall be qualified to provide or supervise the provision of specially designed instruction to meet the needs of children with disabilities. This could include a preschool supervisor or service coordinator or designee of the early intervention agency.
(c) With parental consent, the IEP must include a section on family services, which provides for appropriate services to assist the family in supporting the eligible young child's development.
(d) Notwithstanding the requirements incorporated by reference, the following time lines govern the preparation and implementation of IEPs:
(1) The IEP of each eligible young child shall be implemented as soon as possible, but no later than 14 calendar days after the completion of the IEP.
(2) The IEP of each eligible young child shall be reviewed by the IEP team at least annually.
(e) For children who are within 1 year of transition to a program for school age students, the IEP must contain goals and objectives which address the transition process.
(f) Progress indicators include, but are not limited to, IEP annotation, dated progress and documented parental feedback.
(g) If an eligible young child moves from one early intervention agency to another in this Commonwealth, the new early intervention agency shall implement the existing IEP to the extent possible or shall provide services and programs specified in an interim IEP agreed to by the parents until a new IEP is developed and implemented or until the completion of due process proceedings under this chapter.
(h) Every eligible young child receiving special education and related services provided for in the IEP developed prior to July 1, 2008, shall continue to receive the special education and related services under that IEP subject to the terms, limitations and conditions set forth in law.
§ 14.155. Range of services.
(a) The Department will ensure that options are available to meet the needs of children eligible for early intervention. The options may be made available directly by early intervention agencies or through contractual arrangements for services and programs with other agencies in the community, including preschools, provided that the other agencies are subject to the supervision or licensure of the Department of Public Welfare or licensed by the State Board of Private Academic Schools.
(b) The IEP team shall recommend early intervention services to be provided in the least restrictive environment with appropriate and necessary supplementary aids and services. The placement options may include one or more of the following:
(1) Early childhood environment. Services provided in a typical preschool program with noneligible young children.
(2) Early childhood special education environment. Services provided in a special education preschool program funded by the early intervention agency.
(3) Home environment. Services provided in the home.
(4) Services outside of the home environment. Services provided outside of the home environment.
(5) Specialized environment. Services provided in a specialized setting, including the following:
(i) An approved private school.
(ii) A residential school, residential facility, State school or hospital or special secure setting.
(iii) An approved out-of-State program.
(c) The duration of early intervention services, in terms of program days and years, must accommodate the individual needs of eligible young children.
(1) The duration of early intervention services shall be developed by each early intervention agency in accordance with the Mutually Agreed upon Written Arrangement (MAWA) and shall be included in the MAWA's plan under § 14.104 (relating to educational plans).
(2) Some eligible young children may lose skills over breaks and have difficulty in regaining these skills as evidenced through child performance data. In those cases, the IEP team shall consider whether services should be provided during the break period to maintain skills.
(d) The caseloads of professional personnel shall be determined on the basis of the amount of time required to fulfill eligible young children's IEPs. The following caseload requirements shall be used for preschool early intervention programs:
(1) Early intervention itinerant teachers. Teachers who provide services in a typical preschool, community program or the child's home, shall have a caseload range of 20--40 children, based on the duration and frequency of service as indicated on each IEP.
(2) Early intervention classroom teachers. Early intervention classroom teachers, who provide specialized instruction in an early intervention classroom, may have up to 6 young children in their classroom and may have additional children up to a maximum of 11, provided that one additional teacher or paraprofessional is assigned to the classroom.
(3) Speech therapists. Speech therapists who provide services in classrooms, typical preschools, community programs or the child's home shall have 25--50 children based on the duration and frequency of service as indicated on each IEP.
PROCEDURAL SAFEGUARDS § 14.161. (Reserved).
§ 14.162. Impartial due process hearing and expedited due process hearing.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.504 (relating to procedural safeguard notice), with regard to a student who is mentally retarded or thought to be mentally retarded, a notice when mailed shall be issued to the parent by certified mail (addressee only, return receipt requested).
(b) If parents disagree with the school district's, or the early intervention agency's in the case of a young child, identification, evaluation, or placement of, or the provision of a free appropriate public education to the student or young child, the parent may request an impartial due process hearing.
(c) A school district or early intervention agency may request a hearing to proceed with an initial evaluation or a reevaluation when a parent fails to respond to the district or early intervention agency's proposed evaluation or reevaluation. When a parent rejects the district or early intervention agency's proposed identification of a child, proposed evaluation, proposed provision of a free appropriate public education or proposed educational placement, other than the initial placement, the school district or early intervention agency may request an impartial due process hearing. If the parent fails to respond or refuses to consent to the initial provision of special education services, neither due process nor mediation may be used to obtain agreement or a ruling that the services may be provided.
(d) The hearing for a school aged child with a disability or thought to be a child with a disability shall be held in the school district at a place and time reasonably convenient to the parents and child involved. A hearing for an eligible young child or thought to be an eligible young child shall be conducted at a place and time reasonably convenient to the parents and child involved. These options shall be set forth in the notice provided for requesting a hearing.
(e) The hearing shall be an oral, personal hearing and shall be closed to the public unless the parents request an open hearing. If the hearing is open, the decision issued in the case, and only the decision, shall be available to the public. If the hearing is closed, the decision shall be treated as a record of the student or young child and may not be available to the public.
(f) The decision of the hearing officer shall include findings of fact, discussion and conclusions of law. Although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.
(g) The hearing officer shall have the authority to order that additional evidence be presented.
(h) A written or at the option of the parents, electronic verbatim record of the hearing shall, upon request, be made and provided to parents at no cost.
(i) Parents may be represented by legal counsel and accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities.
(j) A parent or parent's representative shall be given access to educational records, including any tests or reports upon which the proposed action is based.
(k) A party may prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least 5-business days before the hearing.
(l) A party has the right to compel the attendance of and question witnesses who may have evidence upon which the proposed action might be based.
(m) A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.
(n) A party to a hearing has the right to obtain written, or, at the option of the parents, electronic findings of fact and decisions.
(o) The decision of the hearing officer regarding a child with a disability or thought to be a child with a disability may be appealed to a court of competent jurisdiction. In notifying the parties of the decision, the hearing officer shall indicate the courts to which an appeal may be taken.
(p) The following applies to coordination services for hearings and to hearing officers:
(1) The Secretary may contract for coordination services for hearings related to a child with a disability or thought to be a child with a disability. The coordination services may include arrangements for stenographic services, arrangements for hearing officer services (including the compensation of hearing officers), scheduling of hearings and other functions in support of procedural consistency and the rights of the parties to hearings. The compensation of hearing officers does not cause them to become employees of the Department.
(2) A hearing officer may not be an employee or agent of the school entity in which the parents or the child with a disability or thought to be a child with a disability resides, or of an agency that is responsible for the education or care of the child with a disability or thought to be a child with a disability or by a person having a personal or professional interest that would conflict with the person's objectivity in the hearing. A hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.
(q) The following time line applies to due process hearings:
(1) A hearing shall be held after the conclusion of the resolution session under 34 CFR 300.510 (relating to resolution process) or after one of the parties withdraws from mediation or the parties agree to waive or agree to end the resolution session.
(2) The hearing officer's decision shall be issued within 45 days after the resolution or mediation session ends without resolution or agreement date.
(3) A hearing officer may grant specific extensions of time beyond the periods in paragraphs (1) and (2) at the request of either party.
(4) If an expedited hearing is conducted under 34 CFR 300.532 (relating to appeals), the hearing officer decision shall be mailed within 30 school days of the public agency's receipt of the request for the hearing without exceptions or extensions.
(r) Each school district and early intervention agency shall keep a list of the persons who serve as hearing officers. The list must include the qualifications of each hearing officer. School districts and early intervention agencies shall provide parents with information as to the availability of the list and shall make copies of it available upon request.
(s) Except as provided in 34 CFR 300.533 (relating to placement during appeals), during the pendency of any mediation proceeding conducted in accordance with 34 CFR 300.506 (relating to mediation), unless the school entity and the parents of the child agree otherwise, the child that is the subject of the mediation shall remain in the current education placement until the mediation process is concluded.
(t) The Department will report to the Board by September 1 each year on the number of impartial due process hearings held during the previous school year. The report will also provide a Statewide summary of the results of the hearings in a manner that will not violate the confidentiality of children and families. The report will also address actions taken during the previous school year and future plans to strengthen the activities of due process hearing proceedings.
§ 14.163. Resolution session.
The resolution session required under 34 CFR 300.510 (relating to resolution process) will be available to parents of both school age and eligible young children with disabilities. Parent advocates may attend the sessions.
[Pa.B. Doc. No. 08-1244. Filed for public inspection June 27, 2008, 9:00 a.m.]
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