[33 Pa.B. 1051]
[Continued from previous Web Page] Section 4226.73. Participants in IFSP meetings and periodic reviews.
Several commentators expressed various concerns about the participants in the IFSP meeting identified in subsection (a), including that there is a lack of clarity about who is required to participate on the IFSP team and that the final-form rulemaking should state that the IFSP team is to be multidisciplinary and should include two or more disciplines or professions as well as parents; that persons providing services to the child should participate and the words ''as appropriate'' in subsection (a)(6) be removed or language be added that indicates that families can make a determination on whether the providers should or should not attend and families should be informed of the choice in writing; that parents should be informed in writing that an advocate or person outside the family can participate in the IFSP; and that parents should be informed of those persons who will be attending the meeting prior to the meeting. One commentator asked how child care providers recover costs that will be incurred for attendance at IFSP meetings.
A number of commentators emphasized that the IFSP team, not the county MH/MR program, is responsible for making decisions about the child and suggested that service decisions are not being made at the IFSP meeting. They urged that the service coordinator must have the authority to commit resources or that someone with authority should attend the IFSP meetings. One commentator asked whether a county MH/MR program can deny services agreed upon as part of an IFSP and, if so, what happens regarding the recommendations.
Response
The participants at an IFSP meeting are outlined in this section. As explained earlier, neither Federal nor State law requires that two professionals in addition to the service coordinator participate in the MDE or the IFSP. Nor does it prohibit two or more disciplines from participating in the IFSP meeting. It is the responsibility of the service coordinators to inform the families that advocates and persons outside the family can participate in developing the IFSP. The language ''as appropriate'' is consistent with federal regulations and therefore was not deleted.
The Department agrees that it is the IFSP team, which includes the family, that has the responsibility to develop a plan of service delivery for the child. As outlined in redesignated in 226.52(3), the service coordinator is responsible for ''facilitating and participating in the development, implementation, review and evaluation'' of the IFSP. The service coordinator is an equal member of the team. The service coordinator or other team members may disagree with the decision being discussed at the IFSP meeting. If consensus cannot be reached on the appropriate services for the child, the parent may pursue any of the procedural safeguards available to challenge the outcome. If the team does reach consensus, then the county MH/MR program must abide by that decision. If it does not, then the parent again should pursue the procedural safeguards available to challenge the county decision.
No mechanism exists for child care providers to receive payment for their attendance at IFSP meetings. If a child is in a child care setting, the child care provider may be an integral member of the team. As do other team members, it has the ability to participate in development of the IFSP through written communications, discussions with the family or conference calls.
The Department made technical changes to subsection (c) to correct improper word usage and typographical errors.
Section 4226.74(1). Content of the IFSP.
Two commentators noted that paragraph (1)(i) was inconsistent with 34 CFR 303.344(a)(1) (relating to content of an IFSP) and recommended that the phrase ''based on objective criteria'' be deleted.
Response
The Department concurs and made the change as recommended.
Section 4226.74(2).
Two commentators noted that the provision identified in paragraph (2) was inconsistent with 34 CFR 303.344(b) because it did not have the introductory phrase ''with the concurrence of the family'' and suggested that the paragraph be revised.
Response
The Department concurs and made the change as suggested.
Section 4226.74(4).
A few commentators submitted comments on the listing of qualified personnel in proposed paragraph (4)(ii) that addressed the process for credentialing, the addition of sign language instructors, the addition of language signaling that special educators need to be knowledgeable about the communication needs of the child, and not limiting personnel to those listed in this subparagraph.
One commentator pointed out that location is ''defined'' in subparagraph (iv) but the section does not require that the location must be listed on the plan. One commentator stated that the terms ''frequency'' and ''intensity'' in subparagraph (ii) are defined too restrictively and suggested adding a statement that the maximum number of times per month may not be delivered every month. Another commentator sought direction on how to document ''frequency and intensity.''
Response
The Department deleted proposed subparagraph (ii) from this section as duplicative of the listing of qualified personnel in the definition of ''early intervention services'' in § 4226.5. The issues presented by the commentators to this section have been addressed in the response to comments to the definition of ''early intervention services'' in § 4226.5.
The Department made several revisions to this paragraph. It revised subparagraph (i) to conform to 34 CFR § 303.344(d)(1). It added clause (B) regarding natural environments, requiring that the IFSP include a justification if services are not provided in natural environments. A similar requirement was set forth in proposed paragraph (5) of this section and the many comments received on the issue of natural environments are addressed in the next section. The Department also added clauses (C) and (D), requiring that the IFSP list the payment arrangements and unit costs. It deleted the definition of ''method'' and ''location'' since these terms are defined in § 4226.5.
The completion of the IFSP form, including frequency and intensity of service, is an issue to be addressed at training.
Section 4226.74(5).
The Department received a number of comments on the provision related to natural environments. Commentators suggested clarifying that parents have choices and options and that their preferences should be documented and considered; that a school or program for a child that is deaf may be a natural environment; and that the IFSP team must make the decision on the appropriate environment and appropriate justification.
Response
Because the delivery of services in natural environments is integral to the provision of early intervention services, the Department added § 4226.75(a), which requires that to the maximum extent appropriate to meet the needs of the infant or toddler with a disability, as determined by the IFSP team, services are to be provided in natural environments. The basic premise to the provision for natural environments is that services should be provided in communities or locations where the child lives, learns and plays in order to enhance the child's participation in family routines and the activities and routines that occur in a variety of community settings where children and families spend time. Home and community settings provide children the opportunity to learn and practice new skills within a context that provides educational and developmental interventions. The natural environment in which supports and services will be provided should be based on information garnered from the evaluation and assessment as well as the child's present status, family information and desired outcomes, which relate to the outcomes on the IFSP.
It is the responsibility of the IFSP team to determine how early intervention services can be achieved in a natural environment. The parents are clearly an integral part of the team process, but parental preference divorced from the needs of the infant or toddler cannot be used as a justification for providing services in a setting other than a natural environment. The determination for where a service is provided should, again, be based on information from the evaluation and assessment as well as the child's present status, family information and desired outcomes.
It is the responsibility of the IFSP team to make decisions separately for each service. If the team determines that a particular service for the child must be provided in a setting other than a natural environment, the team must include a justification as outlined in § 4226.74(4)(i)(B). It is expected that when developing an IFSP for the child and family, the IFSP team will first determine which services are needed for the child and how they can be delivered in the child's natural environment. Only if a particular need of the child cannot be met in the natural environment should other settings be considered.
A child who is deaf or hard of hearing may receive services in a setting other than a natural environment based on their individual needs. The Department addressed this same issue in the response to comments to the definition of ''natural environments'' in § 4226.5 and will not repeat that response here.
Section 4226.74(6) (redesignated as § 4226.74(5)).
One commentator asked if unit costs were no longer required on the IFSP.
Response
The Department added clause (D) to paragraph (4)(i), requiring that unit costs be included on the IFSP.
Section 4226.74(7) (redesignated as § 4226.74(6)).
Almost half of the comments the Department received urged the Department to specify a time period for when services should start after the IFSP is completed. Many commentators suggested that services should start within 14 days. One commentator argued against establishing an arbitrary timeline.
Response
In developing the proposed rulemaking, the Department was hesitant to include a time-line for implementation of the IFSP for a variety of reasons. The Department was concerned that specifying a particular time frame, such as 14 days, could delay the start of service if programs had a ''window'' of 14 days to comply. It is also possible that there could be an appropriate delay in service based on a team decision or parental request.
After careful consideration, the Department has adopted a requirement that services are to begin within 14 days after the IFSP is completed, subject to exception if the family requests or the needs of the infant or toddler warrant an extension. This requirement is in new § 4226.75(b). The requirement to document the service start date on the IFSP has been modified accordingly in paragraph (7) (redesignated as paragraph (6)).
Section 4226.74(8) (redesignated as § 4226.74(7)).
Two commentators suggested that this paragraph be deleted because the rate structure does not allow for the best team member to coordinate services for the child and family. Two commentators believed that this paragraph contradicts the service coordination model implemented in this Commonwealth.
Response
The Department revised this paragraph by deleting the requirement that the service coordinators be from the profession most immediately relevant to the infant or toddler's needs, since this does not reflect the service coordination system in this Commonwealth. Since the current system is permitted under Federal law, the Department revised this paragraph accordingly.
Section 4226.74(9) (redesignated as § 4226.74(8)).
Many commentators requested that the final-form rulemaking provide guidance to the field on the transition process. Commentators recommended using language that is consistent with Federal regulations; questioning the county's ability to influence the timelines of transition meetings; including specific language to allow more options and defining the ability of the team to authorize or refer a child to services in a center-based program during the transition year, prior to the third birthday; including language on pendency to ensure that services continue when a child turns 3 years of age if a dispute occurs; and the need for more flexibility so that a separate IFSP and IEP are not developed in a short period of time. One commentator believed the local educational entity, not the county, is responsible for coordinating meetings and that a formal conference is not necessary for children not eligible for preschool programs.
Response
After additional internal review, the Department deleted this entire paragraph from this section and restated the substance of the paragraph in new § 4226.77 (relating to transition from early intervention services). Partially in response to the comments received, the Department determined that the provisions of this paragraph impose substantive requirements that are not appropriately set forth in a section that pertains to documentation requirements. The provisions of § 4226.77 are in substance virtually identical to those in paragraph (9) of the proposed rulemaking, with the exception of some technical changes made to improve clarity and reduce unnecessary wordiness. The new section also differs from proposed paragraph (9) in that it includes the specific steps, from 34 CFR § 303.344(h)(2), that the commentators proposed to include. Paragraph (9) of this section (redesignated as paragraph (8)) has been modified accordingly to prescribe what needs to be included on the IFSP.
Turning to the comments, in reference to center-based programming in the transition year, the Department did not offer further clarification because the Department believes there is nothing in the final-form rulemaking to prohibit such programming, but neither is it encouraged for all children. The decision on the location of service, as well as the justification for where the service is provided, is the responsibility of the IFSP team. A team decision that the child needs a particular service in a particular location should be based on evaluation and assessment information. An appropriate justification for providing services in a location other than natural environment is not that the child is turning three.
The Department did not add language regarding pendency to ensure that services continue when a child turns three if there is a dispute. Once the child turns 3 years of age, programmatic and fiscal responsibility transfers to the Department of Education. The Department has no authority to establish regulations that would govern operation of the Department of Education's early intervention program.
It is the responsibility of the county MH/MR program to convene a conference with the local education entity and the family for children who are eligible for Part B services as well as for families of children who are not eligible but may be transitioning to other appropriate services.
Section 4226.75. Provision of services before evaluation and assessment are completed (redesignated as § 4226.76. Provision of services before MDE is completed).
One commentator suggested that this section should identify under what circumstances it would be appropriate for services to begin before an evaluation is completed. Four commentators stated that it is not clear how a child can be determined eligible for services, or what services are needed, in the absence of an evaluation and recommended that the section be deleted.
Response
Unlike § 4226.61(d)(2), which is directed to those situations in which the MDE could not be completed within prescribed timeline despite best efforts to do so, the purpose of this section is to facilitate services if a child has an immediate or apparent need. One example of a child for whom an interim IFSP would be appropriate under this section is a child born with spina bifida whose need for physical therapy is apparent without a full MDE and IFSP. The determination of a need would be based on the very individualized circumstances of the child. It is therefore virtually impossible to attempt to describe even broad categories of examples that would provide meaningful direction. The Department finds it is inappropriate to list any examples in the final-form rulemaking. Outlining specific circumstances might result in service delay for a child with an immediate need because the specific circumstance was not included in the examples.
The Department revised paragraph (3) by adding a cause that clarifies that if an interim IFSP is developed because exceptional circumstances preclude the MDE and IFSP from being developed within 45 days, then the MDE need not be completed within that specified time frame, as this paragraph otherwise requires.
Procedural Safeguards
The sections dealing with procedural safeguards were reorganized to reflect a more cohesive progression from general provisions that apply in any forum to the specific provisions related to each mechanism for resolving a dispute.
Section 4226.91. General responsibility of legal entity for procedural safeguards (redesignated as ''General responsibility for procedural safeguards'').
Several commentators expressed concern that the rulemaking does not address the complaint management system set forth in 34 CFR 303.510--305.512 (relating to lead agency procedures for resolving complaints), including the requirement that parents receive written notice of procedures to follow to file a complaint. They suggested it be included. One commentator noted that parents do not know how to file a complaint.
Response
The Department revised and redesignated § 4226.97 (redesignated as § 4226.95). As revised, redesignated § 4226.95(b)(3) and (4) requires that the notice issued to parents inform them of their right to conflict resolution, mediation and a due process hearing as well as the right to file a complaint with the Department and the procedures for filing a complaint. The Department did not include the complaint management system in the rulemaking because the Federal regulations impose that requirement on the Department, not the county MH/MR programs. Since the final-form rulemaking applies to county MH/MR programs and service providers and agencies, the complaint management system is appropriately omitted.
The Department made several revisions to this section. It deleted subsection (b) because the county MH/MR programs are generally responsible for assuring that their contracting service providers and agencies comply with those sections of the final-form rulemaking that do not explicitly apply only to the county MH/MR programs. Subsection (b) was therefore redundant.
The Department also amended proposed subsection (a) by inserting ''meet the requirements of this chapter, except §§ 4226.101 and 4226.102 (relating to impartial hearing officer; convenience of proceedings, timelines)'' in place of ''shall include, at a minimum, conflict resolution, mediation and administrative hearing as set forth in.'' The Department made this change to avoid ambiguity and confusion regarding the responsibilities of the county MH/MR programs under this section. As revised, the section clarifies that the county MH/MR programs must adopt procedural safeguards that comply with all but the two specified sections. Redesignated §§ 4226.101 and 4226.102 address procedures for due process hearings, for which counties have no responsibility. Instead, due process hearings are conducted by a contractor of the Department. For that reason, these sections were excepted from the operation of this section. The Department also reorganized the section to accommodate the deletion of proposed subsection (b).
Section 4226.92. Notice of rights (deleted on final-form).
The Department deleted this section as redundant of redesignated § 4226.75(b).
Section 4226.93 (redesignated as § 4226.97). Conflict resolution.
Some commentators expressed concern that this section, § 4226.94 (redesignated as § 4226.98) (relating to mediation) and § 4226.100 (redesignated as § 4226.99 (relating to due process procedures)) were all very confusing. These commentators noted that the sections did not make clear the difference between county level resolution and mediation; suggested that due process rights are available only after parents use conflict resolution; and lacked clarity on what happens if conflict resolution does not resolve the dispute. One commentator objected that this section did not provide direction to families on how to file a complaint. Another commentator suggested that all of the procedural safeguards sections be combined into one section with the heading ''conflict resolution.''
Response
The Department made several revisions to this and the other procedural safeguards sections in an attempt to clarify the numerous protections available to families under the final-form rulemaking. The Department revised this section (redesignated as § 4226.97) to clarify the distinction between conflict resolution, which is a meeting with local county staff to resolve an issue, and mediation, which is a meeting conducted by an independent mediator not associated with the county MH/MR program. The Department amended subsection (a) to describe more clearly what conflict resolution is. Subsection (b) was revised by adding paragraph (2) to emphasize that conflict resolution is available independent of a request for mediation or a due process hearing; by amending paragraph (2) (redesignated as paragraph (3)) to clarify that the county MH/MR program must make an offer for conflict resolution when a request for mediation or a due process hearing is filed but that the parent can refuse the offer; by changing the wording in paragraph (3) (redesignated as paragraph (4)) from ''if conflict resolution is unsuccessful'' to ''if no resolution or agreement is reached at the meeting''; and by adding a new paragraph (7) to emphasize that parental participation is voluntary, and that parents do not have to participate in order to exercise other procedural safeguards. The Department also revised § 4226.97 (redesignated as § 4226.95) to specify in redesignated § 4226.95(b)(3) that the notice must include a description of the available procedural safeguards. As noted in the response to comments to § 4226.91 (relating to general responsibility for procedural safeguards), new redesignated § 4226.95(b)(4) requires that the notice also advise of the right to file a complaint with the Department. The comment regarding the complaint management system was otherwise addressed in the response to comments to § 4226.91, and that response will not be repeated here.
The Department acknowledges that an alternative organizational scheme could be to entitle a subchapter or section ''conflict resolution'' and encompass all remaining sections, but the Department did not choose that scheme. Instead, it clarified the intent of these sections by amending the sections and reorganizing them. Although this commentator offered the proposed reorganization in commenting on every remaining section except § 4226.105, the Department will not repeat this response.
Section 4226.94 (redesignated as § 4226.98). Mediation.
As with the section on conflict resolution, some commentators expressed concern that this section was confusing and requested that it be clarified. One commentator observed that this section implied that mediation is available only if a parent requests a due process hearing and suggested that it be available whenever there is a dispute. Two commentators recommended that this section specify a time frame for conducting the mediation session in subsection (d) rather than retain the phrase ''in a timely manner.''
Response
The Department revised and redesignated the substance of this section as § 4226.98. The Department revised this section in several respects to dispel confusion and to address other comments submitted. Subsection (a) was revised to delete the clause that began ''which, at a minimum'' and concluded with ''impartial decisionmaker)'' in the proposed rulemaking. The reason for this revision is to remove any ambiguity about when mediation must be made available and clarify that a parent does not have to ask for a due process hearing for mediation to be available. Subsection (b) was revised by adding paragraph (2) to clarify that the county MH/MR program must offer mediation to a parent who requests a due process hearing. Subsection (c) in the proposed rulemaking was redesignated as subsection (f) and amended to correct an inadvertent error in the proposed rulemaking by adding the phrase ''to encourage the use and explain the benefits of the mediation process'' to the introductory paragraph and deleting a similar clause from paragraph (2).
Subsection (d) in the proposed rulemaking was redesignated as subsection (c) and revised to specify that a mediation session must be scheduled within 10 days of a request for either mediation or a due process hearing, rather than ''in a timely manner.'' Subsections (e) and (f) in the proposed rulemaking were redesignated as subsections (d) and (e), respectively, but were otherwise not changed.
The Department has contracted to provide mediation services through the Office of Dispute Resolution (ODR), the same entity that conducts due process hearings. ODR has a staff of trained mediators. A mediator is assigned to conduct the session when a request for mediation is submitted.
Section 4226.95. Consent and native language information (redesignated as § 4226.92. Parental consent).
The Department combined the provisions of this section with those of proposed § 4226.98 (relating to parent consent), as well as consent provisions from other sections of the proposed rulemaking, into one section, redesignated as § 4226.92. The reason for this revision is to consolidate all consent provisions in one section rather than scattering them throughout the final-form rulemaking, for ease of reference.
Redesignated subsection (b) contains the provisions of § 4226.98 in the proposed rulemaking in paragraphs (1) and (4), modified by deleting the reference to a particular form in the introductory clause as unnecessary because of the technical correction to subsection (a)(2); adding the phrase, ''or changing''; and deleting reference to § 4226.72(e), since that section was revised and redesignated as subsection (c) of this section. Paragraph (2) was added because it was inadvertently omitted from the proposed rulemaking and paragraph (3) was added at the recommendation of commentators to § 4226.23 (relating to eligibility for Medicaid waiver services). Subsection (c) is redesignated from § 4226.72(e), modified to take into account the need to obtain consent before a service is changed, not just initiated. Subsection (d) is redesignated verbatim from § 4226.98(b) in the proposed rulemaking.
The Department also corrected some technical errors. In subsection (a), it changed ''from parents'' to ''parental'' to avoid inconsistency with other regulations. In subsection (a)(1) it struck ''or other mode of communication'' because this phrase is included in the definition of ''native language'' in § 4226.5). In subsection (a)(2) it inserted ''form'' to avoid ambiguity. The Department deleted subsection (b) because this is the definition of ''native language'' in § 4226.5.
Section 4226.96 (redesignated as § 4226.94). Opportunity to examine records.
Some commentators suggested that the specific applicable Federal procedures should be included in this section. Others recommended that the section be revised to state that families may have access to copies of their records without cost. One commentator expressed concern that the rulemaking is too broadly worded and suggested that the phrase ''when appropriate'' be added to maintain confidentiality when dealing with situations of abuse or other sensitive issues. Another commentator asked the Department to clarify the meaning of ''individual child complaint'' in this section and in § 4226.100 (redesignated as § 4226.99. Due process procedures).
Response
The Department finds that it is unnecessary to restate the provisions of the cited regulation in this section. Regarding access to records at no cost, the Federal regulations cited in this section specify in 34 CFR 300.566(a) (relating to fees) that an agency may charge a fee for copies of records ''if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.'' The Department believes that this provision affords parents sufficient protection in exercising their rights.
Regarding the breadth of the language of this section, 34 CFR 300.562(c) (relating to access rights) provides that an ''agency may presume that the parent has the authority to inspect and review records relating to his or her child unless the agency has been advised that the parent does not have the authority under applicable State law governing such matters as guardianship, separation, and divorce.'' The Department does not have the authority to graft any other exceptions onto the exercise of a Federal right.
An individual child complaint is one that relates specifically to one child and is not a complaint against the system of service.
Section 4226.97. Prior notice; native language (redesignated as § 4226.95. Prior notice).
One commentator suggested listing examples of when communication with parents in their native language would be considered ''clearly not feasible'' to improve clarity. Another commentator recommended that this section should direct that the notice be ''written in language understandable to the public.''
Response
For the reasons explained in the response to comments to redesignated § 4226.62 (relating to nondiscriminatory procedures), the Department did not add examples of when communication in the parent's language would ''clearly not be feasible.'' The language recommended by the second commentator is in subsection (c)(1).
The Department redesignated this section as § 4226.95. As noted in the response to comments to § 4226.92 (relating to notice of rights) (deleted on final-form), the Department revised subsection (b) by striking paragraph (3) and replacing it with a new paragraph (3) that specifically identifies the procedural safeguards that must be described in the notice. The Department also added a new paragraph (4), requiring that the notice also include a description of how to file a complaint with the Department.
The Department made several technical changes to this section to conform the section to other changes made in the rulemaking. It added ''clearly'' in subsection (c)(2) because that word was inadvertently omitted from the proposed rulemaking. It deleted ''or other mode of communication'' from subsections (d) and (e) in its entirety because these provisions are both included in the definition of ''native language'' in § 4226.5. Because these provisions were deleted, the Department revised the section heading by likewise deleting ''native language.'' Finally, it changed the wording in subsection (d)(3) to clarify where the written evidence should be maintained.
Section 4226.98. Parent consent (deleted on final-form).
As explained in the response to comments to § 4226.95 (redesignated as § 4226.92) the Department deleted this section, having incorporated the substance of the provisions in redesignated § 4226.92.
Section 4226.99. Parental right to decline service.
The Department redesignated the substance of this section as § 4226.93(a) (relating to parental right to decline service). The Department added § 4226.93(b), which is parallel to subsection (a) but applies to at-risk children rather than infants and toddlers with disabilities, and was inadvertently omitted from the proposed rulemaking.
Section 4226.100. Administrative resolution of individual child complaints by an impartial decisionmaker (redesignated as § 4226.99. Due process procedures).
One commentator objected to the word ''timely'' as unclear and recommended that it be deleted and a maximum time frame substituted.
Response
After additional internal review, the Department revised this section in several respects.
Because the Department's contractor, not the county MH/MR programs, is responsible for the conduct of due process hearings, the county MH/MR programs cannot establish procedures to ensure the timely resolution of these hearings. Therefore, this section was revised to require the county MH/MR programs to implement procedures that ensure that requests for due process hearings are not delayed. The time frame for resolution of a due process hearing has been specified as 30 days in § 4226.103(b) (redesignated as § 4226.102(b) (relating to convenience of proceedings; timelines)). The purpose of this section is to require county MH/MR programs to establish procedures at the local level that do not interfere with resolution of due process hearings within 30 days.
Section 4226.101. Parent rights in administrative proceedings (redesignated as § 4226.100. Parental rights in due process hearings).
Two commentators observed that families often cannot afford to retain an attorney and recommended that subsection (b)(1) (redesignated as subsection (b)(2)) be reworded to clarify that families do not need to have counsel and another person at the hearing.
Response
The language in subsection (b)(2) mirrors 34 CFR 303.423(b)(1). The Department disagrees with the suggestion by the commentators that this paragraph requires that a parent be accompanied both by counsel and by other individuals. Instead, this paragraph affords a parent the right to be accompanied either by counsel or by individuals with special knowledge or training, or both. The Department therefore did not make the requested change.
After additional internal review, the Department made several revisions to this section. It changed references to ''administrative proceedings'' in both the section heading and the text to ''due process hearings'' because this is the term commonly used. For the same reasons as set forth in the immediately preceding response, the county MH/MR programs are not in a position to ''afford'' parents the enumerated rights in a due process hearing. As the opposing party at the hearing, the county MH/MR program would be particularly ill-suited for that role. Therefore, the Department revised this section, consistent with the revisions to redesignated § 4226.99, to require the county MH/MR programs to inform parents of their rights.
The Department also revised subsection (a) by changing ''children eligible under this chapter'' to ''children referred or eligible for tracking or early intervention services'' to clarify that parents of children who are referred but determined ineligible also have the right to request a due process hearing to challenge that determination. The Department made additional revisions to this subsection to avoid inconsistency with redesignated § 4226.99 as revised.
The Department amended the introductory clause in subsection (b) to conform the language to the revisions to redesignated § 4226.99 and to clarify that only parents who are parties to a due process hearing, rather than involved in some other capacity such as a witness, have the rights listed in this subsection. In response to a recommendation from commentators, the Department added subsection (b)(1). This paragraph enables a parent who requests a due process hearing to obtain an independent MDE if the hearing officer determines that an MDE is needed to resolve the dispute. The remaining paragraphs in this subsection were renumbered accordingly.
Section 4226.102 (redesignated as § 4226.101). Impartial hearing officer.
Some commentators recommended that this section specify the qualifications and duties of the hearing officer who conducts the due process hearings.
Response
The Department concurs and revised subsection (a) and added subsection (b) to specify qualifications and duties, which are consistent with 34 CFR 303.421 (relating to appointment of an impartial person). The Department also added an introductory clause in subsection (c) (redesignated from proposed subsection (a)) to introduce the definition of ''impartial.'' The Department revised subsection (c)(1) by adding ''who is the subject of the hearing'' to avoid ambiguity and correcting a grammatical error. Finally, the Department redesignated proposed subsection (b) as subsection (d) and made technical changes to conform to the revisions in redesignated § 4226.99.
Section 4226.103 (redesignated as § 4226.102). Convenience of proceedings; timelines.
Some commentators objected to the absence of a timeline for resolving hearing requests. They recommended that this section specify that hearing requests must be decided within 30 days.
Response
The Department concurs and made the recommended change by adding subsection (b). The Department purposely phrased this subsection in the passive voice, since parents may send requests for due process hearings either to the county MH/MR program or directly to the ODR. The 30-day time period begins from the date of receipt by either entity.
Section 4226.104 (redesignated as § 4226.103). Status of a child during proceedings.
One commentator urged the Department to consider addressing the issue of pendency at transition in this section, in addition to having raised the issue in commenting on § 4226.74(9) (redesignated in part as §§ 4226.74(8) and 4226.77).
Response
For the reasons explained in the response to the comments to § 4226.74(8), the Department does not agree that pendency of services at transition to preschool services are appropriately encompassed within these regulations.
The Department revised subsection (a) to clarify that this section applies regardless of the procedural avenue the parent pursues. The Department deleted subsection (c) as duplicative of redesignated § 4226.93. The Department also made technical changes to conform the section to other changes made in the final-form rulemaking.
Section 4226.105 (redesignated as § 4226.96). Surrogate parents.
Several commentators stated that the language of this section unnecessarily limits a foster parent's ability to serve as a surrogate parent for a child in substitute care and suggested that foster parents should be eligible to serve as a surrogate if all requirements in this section are met. One commentator requested clarification of the period of time that qualifies as a long-term relationship in subsection (f)(3) and what constitutes a conflict of interest in subsection (f)(5). Some commentators asked why the provisions that authorize the county MH/MR programs to appoint a surrogate at the request of the parent under certain circumstances and that protects surrogate parents from liability were omitted. One commentator observed that the responsibilities in subsections (b)(2) and (c) were the same. The same commentator suggested that this section emphasize that surrogacy is not needed only for children in substitute care.
Response
For the reasons explained in the response to comments to the definition of ''parent'' in § 4226.5, the Department revised subsection (f) (redesignated as § 4226.96(e)) to permit a foster parent to serve as a surrogate if all other requirements of this section are met and the custodial county children and youth agency approves the appointment.
According to advice received from the Office of Special Education Programs of the United States Department of Education, the type of long-term relationship contemplated in proposed subsection (f)(3) is one in which the foster parent has pursued an interest in adoption but is unable to adopt because, for example, the family would lose medical coverage for the child. An example of a disqualifying conflict of interest under subsection (f)(5) is a former member of the Board of an agency providing services to the child who had a dispute with the agency or a current Board member of an agency providing services to the child.
In redesignating this section as § 4226.96, the Department made several revisions. In response to language proposed by commentators and after additional internal review, the Department revised subsection (a) to delineate more clearly the types of situations for which appointment of a surrogate is not only appropriate but necessary. The Department revised subsection (b) by deleting the enumeration to eliminate redundancy. The Department combined subsections (c) and (d) into redesignated subsection (c) for the same reason. The Department added a new subsection (c)(3) to ensure that only persons who are willing to serve as surrogates are appointed. The Department revised subsection (d)(3) (redesignated as § 4226.96(c)(4)) and added subsection (c)(5) to ensure that any State public agency or private agency serving the child or a family member is not selected as a surrogate parent.
The provisions that authorize the county MH/MR programs to appoint a surrogate at the request of the parent under certain circumstances and that protect surrogate parents from liability were omitted from this section because 34 CFR 303.406 (relating to surrogate parents) does not authorize those provisions, and the Department is unwilling to extend surrogacy beyond what is explicitly authorized by Federal law. Because the language of this section itself makes clear that surrogacy is not needed only for children in substitute care, the Department did not revise the section to address that issue.
Other Issues
Some commentators raised global issues not related to a specific section of the final-form rulemaking. These commentators both commended and criticized the Department for adopting much of the language in 34 CFR Chapter 303; urged the Department to consider the proposed rulemaking for Part C that has been withdrawn and questioned how the Department could expect to comply with Federal regulations that have yet to be promulgated; advocated that the Department use the regulations as a means to adopt creative approaches to service delivery and funding. As with the other comments previously summarized, the Department considered each of these comments in adopting this final-form rulemaking.
The Department corrected typographical or grammatical errors or made other minor technical changes to the definitions of ''method,'' ''nursing services,'' ''psychological services'' and ''speech-language pathology services'' in § 4226.5. In addition, the Department redesignated § 4226.42 as § 4226.34 (relating to local interagency coordinating council).
Fiscal Impact
Public Sector--Commonwealth and Local Government
The final-form rulemaking incorporates requirements already imposed under the act, Part C of IDEA and accompanying Federal regulations and the infants, toddlers and families Medicaid waiver approved by the CMS, all of which are currently in place. Therefore, no additional costs or savings are anticipated for the Commonwealth or for local government entities.
Private Sector
In drafting the final-form rulemaking, the Department gave careful consideration to the concerns of some commentators that the proposed rulemaking would have a significant cost impact, particularly on providers of service, because of the preservice and annual staff training requirements. The training requirements received wide support from commentators, including families, advocacy groups and providers.
The Department has an extensive training and technical assistance network through EITA, which provides training at no cost to counties and service providers and agencies. Training sessions are available throughout the year on a Statewide and a regional basis, both in person and through teleconferencing. Also available are local training opportunities that can be designed to meet the needs of a particular county. In addition, the county MH/MR programs receive an annual training allocation from the Department that they may utilize to meet the local needs of their area, including provider staff training. Therefore, the Department anticipates that provider cost increases associated with the training requirements will be minimal and will not impose an undue burden on providers. Cost increases are outweighed by the benefits that well-trained staff will bring to children and families who receive early intervention services.
General Public
There is no anticipated fiscal impact on the general public.
Paperwork Requirements
The final-form rulemaking imposes some additional reporting and paperwork requirements associated with documentation of efforts to exhaust other available resources and recordkeeping of staff training hours. The county MH/MR programs and service coordination providers will be required to maintain and make available records that they have attempted to exhaust other available public and private resources before early intervention funds are expended. The county MH/MR programs and service providers and agencies will also be required to maintain and make available records to confirm that all early intervention personnel have received both preservice and annual training.
Effective Date
The final-form rulemaking will take effect July 1, 2003.
Sunset Date
No sunset date has been set. The regulations will be revised as necessary to remain in compliance with State and Federal law.
Regulatory Review Act
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 24, 2002, the Department submitted a copy of these final-form regulations to IRRC and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on November 13, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 21, 2002, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) The final-form rulemaking is necessary and appropriate for the administration of the act and the Public Welfare Code.
Order
Acting under the authority of section 201(2) of the Public Welfare Code and sections 105 and 302(a) of the act, the Department orders that:
(a) The regulations of the Department, 55 Pa. Code, are amended by adding §§ 4226.1--4226.6, 4226.11--4226.15, 4226.21--4226.36, 4226.51--4226.56, 4226.61, 4226.62, 4226.71--4226.77 and 4226.91--4226.103 and by deleting §§ 4225.1--4225.4, 4225.11--4225.15, 4225.21--4225.50, 4225.61--4225.64, 4225.71--4225.82, 4225.91--4225.99 and 4225.101--4225.106 to read as set forth in Annex A.
(b) The Secretary of the Department has submitted this order and Annex A to the Office of General Counsel and the Office of the Attorney General for review and approval as to legality and form as required by law. The Office of General Counsel and the Office of Attorney General have approved this order and Annex A as to legality and form.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order takes effect on July, 1, 2003.
ESTELLE B. RICHMAN,
Acting Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 6016 (December 7, 2002).)
Fiscal Note: Fiscal Note 14-452 remains valid for the final adoption of the subject regulations.
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