RULES AND REGULATIONS
DEPARTMENT OF EDUCATION
[ 22 PA. CODE CH. 711 ]
General Provisions and Supervision
[39 Pa.B. 4752]
[Saturday, August 8, 2009]The Department of Education (Department) amends § 711.3 (relating to incorporation of Federal regulation) to read as set forth in Annex A.
Because the Department finds that proposed rulemaking procedures are unnecessary under the circumstances, public notice of the Department's intention to adopt this final-form rulemaking has been omitted as authorized under section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law (CDL) (45 P. S. § 1204(3)). Proposed rulemaking has been omitted as unnecessary because the amendment mandated under sections 1407(1) and 1412(a) of the Individuals With Disabilities Education Act (IDEA) (Pub. L. No.108-446), 20 U.S.C.A. §§ 1407 and 1412(a), and 34 CFR 300.15, 300.300 and 300.512 (relating to evaluation; parental consent; and hearing rights), which are among the regulations promulgated by the United States Department of Education (USDOE) on December 1, 2008, implementing the IDEA.
The Department adopted the Federal regulations by reference in its rulemaking published at 38 Pa.B. 3593 (June 28, 2008). Because the USDOE later amended those regulations, it is necessary for the Department to formally adopt by reference the regulations as amended. Failure to conform State regulations to Federal regulations would seriously jeopardize Federal funding of special education programs for IDEA-eligible disabled children. The requirements of Federal law are specific, allowing for no alternative means of compliance. The Department is required to strictly adopt the Federal standards in this amendment. Thus, inasmuch as this rulemaking is necessary to align the Commonwealth's regulations with the new version of Federal regulations, proposed rulemaking is unnecessary.
The new Federal requirements affect three paragraphs of § 711.3(b) that refer to Federal regulations. Those provisions of § 711.3 currently provide as follows:
(a) Charter schools and cyber charter schools assume the duty to ensure that a FAPE is available to a child with a disability in compliance with IDEA and its implementing regulations in 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities) and section 504 and its implementing regulations in 34 CFR Part 104 (relating to nondiscrimination on the basis of handicap in programs and activities receiving federal financial assistance).(b) The requirements of 34 CFR Part 300 as published at 71 FR 46450--46845 (August 14, 2006) are incorporated by reference, as follows:* * * * * (2) 34 CFR 300.9--300.15 (relating to consent; core academic subjects; day, business day, school day; educational service agency; elementary school; equipment; and evaluation).* * * * * (21) 34 CFR 300.300 and 300.301 (relating to parental consent; and initial evaluations).* * * * * (27) 34 CFR 300.510--300.516 (relating to resolution process; impartial due process hearing; hearing rights; hearing decisions; finality of decisions, appeal; impartial review; timelines and convenience of hearings and reviews; and civil action).The regulations as currently published incorporate by reference the Federal regulatory requirements that were published at 71 FR 46540--46845 (August 14, 2006). To fully and formally comply with Federal law and regulation, § 711.3(b) must be amended as follows:
(b) The requirements of 34 CFR Part 300 as published at 71 FR 46540--46845 (August 14, 2006), amended at 73 FR 73006--73029 (December 1, 2008) are incorporated by reference, as follows:* * * * * Affected Persons
Persons affected by this amendment have been given actual notice of the Department's intention to amend § 711.3(b) (relating to incorportation of Federal regulations) in advance of final-omitted form rulemaking under section 204(2) of the CDL. Specifically, all local educational agencies (LEAs) will receive electronic notice by means of PENN LINK transmission. Organizations representing students with disabilities and their parents will be notified in writing.
Statutory Authority
The Department acts under the authority of sections 1732-A(c)(2) and 1749-A(b)(8) of the Public School Code of 1949 (Code) (24 P. S. §§ 17-1732-A(c)(2) and 17-1749-A(b)(8)).
Background
Section 711.3 addresses the general provisions of the Commonwealth's special education regulations that adopted by reference certain of the Federal regulations at the time Chapter 711 was amended on June 27, 2008. On December 1, 2008, the USDOE amended the Federal regulations effective on December 31, 2008. The changes made in this final-form rulemaking to § 711.3(b) merely would require compliance with the current Federal regulations.
Purpose of the Amendment
This final-form rulemaking, proposed rulemaking omitted, is necessary to align the Commonwealth's regulation to the December 1, 2008, version of Federal IDEA-implementing regulations. Currently, the Commonwealth's special education regulations adopt by reference the August 14, 2006, version of the Federal mandates. Specifically, the December 1, 2008, amendments to 34 CFR 300 (relating to assistance to states for the education of children with disabilities) modify the prior version to provide as follows:
* A parent has the right unilaterally to withdraw a child with a disability from continued special education and related services, and a public agency may not challenge that parent's decision using Part B dispute resolution procedures. See 34 CFR 300.300.* If, at any time subsequent to the initial provision of special education and related services, the parent of a child revokes consent in writing for the continued provision of special education and related services, the public agency may not continue to provide special education and related services to that child but must provide prior written notice in accordance with § 300.503 before ceasing the provision of special education and related services. See 34 CFR 300.300(b)(4).* While a parent may revoke consent for the continued provision of special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent. See 34 CFR 300.9.
* Parties may be accompanied or advised by counsel or by individuals with special knowledge or training with respect to the problems of children with disabilities at a due process hearing; however, State law determines whether or not parties have the right to be represented by nonattorneys during a due process hearing. See 34 CFR 300.512.
Fiscal Impact and Paperwork Requirements
The amendment will have no fiscal impact on the Commonwealth, its political subdivisions or local educational agencies. That is so because the change simply adopts the requirements that were promulgated by the USDOE on December 1, 2008, and were mandatory effective December 31, 2008.
Effective Date
The final-omitted rulemaking is effective upon publication in the Pennsylvania Bulletin. However, based upon the USDOE promulgated regulations, these requirements were made effective on December 31, 2008, by force of Federal law.
Sunset Date
In accordance with its policy and practice regarding regulations, the Department will review the effectiveness of this regulation after 4 years. Therefore, no sunset date is necessary.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 3, 2009, a copy of the final-omitted regulation was submitted to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Committees on Education (Committees) for review and comment. A copy of the final-omitted regulation was submitted on the same date to the Attorney General for review and comment under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506).
Under section 5.1(d) of the Regulatory Review Act, the final-omitted regulation was deemed approved by the Committees on July 22, 2009. Under section 5.1(e) of the Regulatory Review Act, on July 23, 2009, IRRC met and approved the final-omitted regulation.
Contact Person
The official responsible for information on this final-form rulemaking is John Tommasini, Director, Bureau of Special Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 783-6134, TDD (717) 783-6139.
Findings
The Department finds that:
(1) Public notice of the intention to amend its regulation as adopted by this order under the procedures specified in sections 201 and 202 of the CDL has been omitted under the authority contained in section 204(3) of the CDL, because the Department has, for good cause, found that the procedures specified in sections 201 and 202 of the CDL are, in this circumstance, unnecessary because the requirements of Federal law are specific, allowing for no alternative means of compliance. The Department is required to strictly adopt the Federal standard set forth in the amendment.
(2) The amendment of the regulation of the Department in the manner provided in this order is necessary and appropriate for administration of the Pennsylvania Code and the Commonwealth's obligations established by the IDEA.
Order
The Department, acting under authorizing statute, orders that:
(a) The regulations of the Department, 22 Pa. Code Chapter 711, are amended by amending § 711.3 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(b) The Department will submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Secretary of Education shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order is effective upon publication in the Pennsylvania Bulletin.
GERALD L. ZAHORCHAK, D. Ed.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 4750 (August 8, 2009).)
Fiscal Note: 6-320 (final omitted). No fiscal impact; (8) recommends adoption.
Annex A
TITLE 22. EDUCATION
PART XX. DEPARTMENT OF EDUCATION
CHAPTER 711. CHARTER SCHOOL AND CYBER CHARTER SCHOOL SERVICES AND PROGRAMS FOR CHILDREN WITH DISABILITIES
GENERAL PROVISIONS AND SUPERVISION § 711.3. Incorporation of Federal regulations.
* * * * * (b) The requirements of 34 CFR Part 300 as published at 71 FR 46540--46845 (August 14, 2006), amended at 73 FR 73006--73029 (December 1, 2008) are incorporated by reference, as follows:
* * * * *
[Pa.B. Doc. No. 09-1416. Filed for public inspection August 7, 2009, 9:00 a.m.]
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