[37 Pa.B. 2961]
[Saturday, June 30, 2007]
[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 [300.125(a)(1)(i)] 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 website. 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 [or], electronic media and other media[, or both], 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) [Conduct hearing and vision screening in accordance with section 1402 of the Public School Code of 1949 (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.
(4) ]Identify students who may need special education services and programs.
(b) [Each school district shall implement a comprehensive screening process. School districts may implement instructional support according to Department guidelines or an alternative screening process. School districts which elect not to use instructional support for screening shall develop and implement a comprehensive screening process that meets the requirements specified in subsections (a) and (c).
(c) The screening process shall include:
(1) For students with academic concerns, an assessment of the student's functioning in the curriculum including curriculum-based or performance-based assessment.
(2) For students with behavioral concerns, a systematic observation of the student's behavior in the classroom or area in which the student is displaying difficulty.
(3) An intervention based on the results of the assessments under paragraph (1) or (2).
(4) An assessment of the student's response to the intervention.
(5) A determination as to whether the student's assessed difficulties are due to a lack of instruction or limited English proficiency.
(6) 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.
(7) Activities designed to gain the participation of parents.
(d) If screening activities have produced little or no improvement within 60 school days after initiation, the student shall be referred for evaluation under § 14.123 (relating to evaluation).
(e) Screening 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 screening activities.]
The screening process must include:
(1) Hearing and vision screening in accordance with section 1402 of the Public School Code of 1949 (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 [300.534(a)(1)] 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 [300.531--300.535] 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 school days after the agency receives written parental consent for evaluation.
(c) Parents may request an evaluation at any time and the request must be in writing. The school entity shall have readily available for that purpose, an evaluation request form. If a request is made orally to any professional employee or administrator of the school entity, that individual shall provide a copy of the evaluation request form to the parents within 5 school 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 [300.536] 300.303 (relating to [reevaluation] 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 [300.536 (relating to reevaluation)] 300.303, a reevaluation report shall be provided to the parents within 60 school days from the date [that the request for reevaluation was received from the parent or teacher, or from the date that a determination is made by the agency that conditions warrant a reevaluation.] on which the agency is able to document that it has made reasonable efforts to obtain parental consent in accordance with 34 CFR 300.300(c)(2) (relating to parental consent) and the parents have failed to respond.
* * * * * (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.
(a) 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 [following provisions apply to IEPs] IEP of each student with a disability must include:
(1) [Copies of the comprehensive evaluation report shall be disseminated to the parents at least 10 school days prior to the meeting of the IEP team. A parent may waive this provision.] 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.
(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 behavioral interventions or supports.
(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 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) [The IEP of each student shall be implemented as soon as possible but no later than 10 school days after its completion.] Supplementary aids and services in accordance with 34 CFR 300.42 (relating to supplementary aids and services).
(3) [If a student with a disability moves from one school district in this Commonwealth to another, the new district shall implement the existing IEP to the extent possible or shall provide the services and programs specified in an interim IEP agreed to by the parents. The interim IEP shall be implemented until a new IEP is developed and implemented or until the completion of due process proceedings under this chapter.] A description of the level or levels of support as defined in § 14.105(e) (relating to personnel).
(4) [If a student with a disability moves into a school district in this Commonwealth from another state, the new school district may treat the student as a new enrollee and place the student into regular education and it is not required to implement the student's existing IEP.] 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) [Every student receiving special education and related services provided for in an IEP developed prior June 9, 2001, shall continue to receive the special education and related services under that IEP subject to the terms, limitations and conditions set forth in law.] For students who are 14 years of age or older, a transition plan which 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 _____(Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), 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 [300.29, 300.344(b) and 300.347(b) (relating to transition services; IEP team; and content of IEP)] 300.324 (relating to development, review, and revision of IEP), each school [district] entity shall designate persons responsible to coordinate transition activities.
(c) The member of the IEP team from the school entity, as identified in 34 CFR 300.321(a)(4) (relating to IEP Team), may not be excused from attendance from an IEP team meeting.
§ 14.132. ESY.
[This section sets forth the standards for determining whether a student with disabilities requires ESY as part of the student's program.]
(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 [districts] entity shall determine whether the student is eligible for ESY services and if so, make subsequent determinations about the services to be provided.
* * * * * [(3)] (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:
[(i)] (1) Progress on goals in consecutive IEPs.
[(ii)] (2) Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.
[(iii)] (3) Reports by parents of negative changes in adaptive behaviors or in other skill areas.
[(iv)] (4) Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.
[(v)] (5) Observations and opinions by educators, parents and others.
[(vi)] (6) Results of tests including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.
[(4)] (c) The need for ESY services will not be based on any of the following:
[(i)] (1) The desire or need for day care or respite care services.
[(ii)] (2) The desire or need for a summer recreation program.
[(iii)] (3) The desire or need for other programs or services which, 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 extended school year 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 ensure 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 (NOREP) 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. Behavior support.
(a) Positive rather than negative measures shall form the basis of behavior support programs to ensure that all students shall be free from demeaning treatment and aversive techniques or the inappropriate use of restraints. Behavior support programs include a variety of techniques to develop and maintain skills that will enhance an individual student's or young child's opportunity for learning and self-fulfillment. The types of intervention chosen for a particular student or young child shall be the least intrusive necessary.
(b) Notwithstanding the requirements incorporated by reference in 34 CFR [300.24(b)(9)(vi), (13)(v), 300.346(a)(2)(i) and (d) and 300.520(b) and (c) (relating to related services; development, review, and revision of IEP; and authority of school personnel)] 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:
* * * * * Positive techniques--Methods which utilize positive reinforcement and other positive techniques to shape a student's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.
Restraints--
(i) Devices and techniques, that last longer than 30 consecutive seconds, designed and used to control acute [or], episodic [aggressive] behaviors [or to control involuntary movements or lack of muscular control due to organic causes or conditions. The term includes physical and mechanical restraints.], including aggressive or self injurious behaviors. Redirection or physical prompting as a teaching technique when a student does not exhibit active resistance is not considered a restraint. Devices, objects or techniques prescribed by a qualified medical professional for reasons of safety or for therapeutic or medical treatments are excluded from this definition.
(ii) Examples excluded from this definition include devices used for physical or occupational therapy, seatbelts in wheelchairs or on toilets for balance and safety, safety harnesses in buses, functional positioning devises or hand over hand assistance with feeding or task completion.
(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. [The use of restraints to control the aggressive behavior of an individual student shall cause a meeting of the IEP team to review the current IEP for appropriateness and effectiveness. 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.]
(1) When there is evidence to suggest that the emergency use of restrictive procedures, such as restraints may be necessary to ensure a student's safety or the safety of others, parental consent should be obtained. If a restrictive procedure is needed on an emergency basis, parents should be informed and consent for future uses be obtained within 10 school days following the need for the use of a restrictive procedure. The need for restrictive procedures for safety should be noted in the student's IEP.
(2) The use of restraints to control the aggressive and self injurious behavior on the part of an individual student shall cause a meeting of the IEP team within 10 school days of the behavior causing the use of restraints unless the use of restraint was consistent with the explicit provisions of the existing IEP and that IEP remains current and appropriate for the student. At this meeting, the team shall consider whether the student needs a behavioral assessment, reevaluation, a new or revised behavior plan, or a change of placement to address the inappropriate behavior.
(3) 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.
(4) School entities shall maintain and report data on the use of restraints as prescribed by the Secretary.
* * * * * (e) The use of face down prone restraints is prohibited in educational programs, unless determined necessary by a physician and documented in the student's current IEP.
(f) The following aversive techniques of handling behavior are considered inappropriate and may not be used by agencies in educational programs:
* * * * * [(f) Agencies] (g) School entities have the primary responsibility for ensuring that behavior [management] 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 behavior [management] support techniques and obtaining parental consent prior to the use of highly restraining or intrusive procedures.
(h) Injuries requiring treatment by medical personnel that occur as the result of self injurious behavior or a nonaccidental act by another student shall receive prompt review within 10 school days. The review must include consideration as to whether the student causing the injury needs a behavioral assessment, reevaluation, a new or revised behavior plan or other change in program or placement. Recommended changes or determinations should be communicated to the parent and other IEP team members who may request that an IEP meeting be held.
[(g)] (i) In accordance with their plans, agencies may convene a review, including the use of human rights committees, to oversee the use of [restraining] restrictive or intrusive procedures [and] or restraints.
EDUCATIONAL PLACEMENT § 14.141. [Terminology related to educational placement] (Reserved).
[Notwithstanding the requirements incorporated by reference with regard to educational placements, the following words and terms, when used in § 14.142 (relating to caseload for special education), have the following meanings:
Autistic support--Services for students with the disability of autism.
Blind and visually impaired support--Services for students with the disability of visual impairment, including blindness.
Deaf and hard of hearing impaired support--Services for students with the disabilities of deafness or hearing impairment.
Emotional support--Services for students with a disability whose primary identified need is emotional support.
Full-time--Special education classes provided for the entire school day, with opportunities for participation in nonacademic and extracurricular activities to the maximum extent appropriate, which may be located in or outside of a regular school.
Itinerant--Regular classroom instruction for most of the school day, with special education services and programs provided by special education personnel inside or outside of the regular class for part of the school day.
Learning support--Services for students with a disability whose primary identified need is academic learning.
Life skills support--Services for students with a disability focused primarily on the needs of students for independent living.
Multiple disabilities support--Services for students with multiple disabilities.
Part-time--Special education services and programs outside the regular classroom but in a regular school for most of the school day, with some instruction in the regular classroom for part of the school day.
Physical support--Services designed primarily to meet the needs of students with the disabilities of orthopedic or other health impairment.
Resource--Regular classroom instruction for most of the school day, with special education services and programs provided by special education personnel in a resource room for part of the school day.
Speech and language support--Services for students with the disability of speech and language impairment.]
§ 14.142. [Caseload for special education] (Reserved).
[(a) This chart presents the maximum caseload allowed on a single teacher's roll for each school district.
Type of Service Itinerant Resource Part-time Full-time: Learning Support 50 20 15 12 Life Skills Support 20 20 15 12 Elementary 15 Secondary Emotional Support 50 20 15 12 Deaf and Hearing Impaired Support 50 15 10 8 Blind or Visually Impaired Support 50 15 15 12 Speech and Language Support 65 8 Physical Support 50 15 12 12 Autistic Support 12 8 8 8 Multiple Disabilities Support 12 8 8 8
(b) A school district may request approval for a caseload chart which varies from that in subsection (a) as part of its special education plan consistent with § 14.104 (relating to educational plans). The caseload and supporting documents submitted shall:
(1) Ensure the ability of assigned staff to provide the services required in each student's IEP.
(2) Apply to special education classes operated in the school district.
(3) Provide a justification for why the chart deviates from the caseload chart in subsection (a).
(4) Describe the opportunities for parents, teachers and other interested parties to review and comment on the chart prior to its submission.
(c) Classes or programs with students from more than one district regardless of whether operated by a school district, intermediate unit, or agency shall follow the caseload chart of the district where the class or program is located. Intermediate unit itinerant services provided to multiple districts shall follow the caseload chart under subsection (a).
(d) Caseloads are not applicable to approved private schools.
(e) The Department may withdraw approval of variance in the caseload chart for a school district if its caseload is determined to be inadequate. The Department will consider at least the following indicators when making the determination:
(1) Graduation rates of students with a disability.
(2) Drop-out rates of students with a disability.
(3) Postsecondary transition of students with a disability.
(4) Rate of grade level retentions.
(5) Statewide and district-wide assessment results as prescribed by §§ 4.51 and 4.52 (relating to State assessment system; and local assessment system).
(f) The maximum age range shall be 3 years in elementary school (grades K-6) and 4 years in secondary school (grades 7-12). 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 and is justified in the IEP.]
§ 14.143. Disciplinary placements.
(a) Notwithstanding the requirements incorporated by reference in 34 CFR [300.519(b) (relating to change of placement for disciplinary removals)] 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 [300.520 (a)(2)(i) and (ii) (relating to authority of school personnel)] 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). [For this purpose, the definitions in 34 CFR 300.520(d) apply.]
§ 14.145. Least restrictive environment requirements.
(a) Students with disabilities shall be educated in the least restrictive environment. Each school entity shall ensure that:
(1) To the maximum extent and as provided in the IEP, the student with a disability is educated with students who are not disabled.
(2) Special classes, separate schooling or other removal of a student with a disability from the regular education class when the nature of 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 supplementary aids and services, make 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 administrative convenience.
(5) School entities shall be required to provide 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.
* * * * * (b) Notwithstanding the requirements incorporated by reference, with regard to 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 [an intermediate unit, school district] a school entity or other agencies.
§ 14.153. Evaluation.
Notwithstanding the requirements [adopted by reference] in 34 CFR 300.122 (relating to evaluation):
* * * * * (3) The assessment [shall] must include information to assist the MDT to determine whether the child has a disability and needs special education and related services [and to determine the extent to which the child can be involved in appropriate preschool activities].
(4) The following [timeline] 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 [300.536] 300.303 (relating to [reevaluation] reevaluations), a reevaluation report shall be provided within 60 calendar days from the date that the [request] parental consent for reevaluation was received [from the parent or teacher, or from the date that a determination is made that conditions warrant a reevaluation].
* * * * * § 14.154. IEP.
* * * * * (d) Notwithstanding the requirements incorporated by reference, the following [timelines] 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.
* * * * * (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 [and] 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 [June 9, 2001] _____(Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.), 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 of other agencies in the community, including preschools [provided these other agencies are licensed, when appropriate, by the Department or the Department of Public Welfare]. 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 [review the alternatives in subsection (c) in descending order, except for the options relating to services and programs provided in the home. Services provided in the home may be the least restrictive early intervention program for an eligible young child] recommend services and programs 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 non-eligible 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.
(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 IEP team shall recommend services and programs be provided in a regular class or regular preschool program unless the IEP team determines that the IEP cannot be implemented in a regular class or regular preschool program even with supplemental aids and services. The placement options include the following:
(1) Regular preschool program or class for the entire school or program day with supportive intervention, including modifications to the regular program and individualization by the preschool program or classroom teacher.
(2) Regular preschool program or class for all or most of the school or program day, with supplemental aids and services provided by early intervention personnel.
(3) Early intervention services and programs provided in a specialized setting for most or all of the program day, with non-eligible young children.
(4) Early intervention services and programs provided in a specialized setting, with some programming provided in the regular preschool program or class and opportunities for participation with noneligible young children in play or other activities.
(5) Early intervention services and programs provided in the home, including services which are provided in conjunction with services provided in another setting.
(6) Early intervention services provided in a specialized early intervention program.
(7) Early intervention services and programs 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 on an individual or group basis, with parental consent.
(iii) An approved out-of-State program.]
The duration of early intervention services, in terms of program days and years, shall 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 [its plans] 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.
[(e)] (d) The caseloads of professional personnel shall be determined on the basis of maximums allowed and the amount of time required to fulfill eligible young children's IEPs. The following caseloads shall be used in early intervention programs:
(1) [Supportive intervention. In a regular preschool program in which supportive intervention is the primary method of service, the caseload range shall be 10-40 children with no more than six eligible young children serviced in the same session. Supportive intervention includes consultation, integrated therapies and other instructional strategies.] 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) [Specialized setting. In early intervention programs provided in a specialized setting, the staff ratio is based on the developmental levels of the children. At least one staff member shall be a certified professional. For children functioning at:
(i) 0-18 months--One staff member for every three eligible young children, with a maximum class size of nine.
(ii) 18-36 months--One staff member for every four eligible young children, with a maximum class size of 12.
(iii) 36 months and up--One staff member for every six eligible young children, with a maximum class size of 18 children.]
Early intervention classroom teachers. Teachers who provide specialized instruction in a special education classroom, shall have a caseload range of three to six eligible young children based on developmental levels with a maximum of 35 children. For each additional child up to six children enrolled in the classroom, one additional adult shall be provided.
(3) [Home based program. In early intervention programs in which the home based program is provided to eligible young children as the only program, the ratio is 10 to 20 eligible young children per teacher. This shall also include teachers of the visually impaired, hearing impaired, and orientation and mobility specialists.] 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.
[(4) Early intervention program--speech and language. In early intervention programs, the speech and language itinerant program will be provided within a caseload of 10 to 50 eligible young children enrolled per teacher.
(5) Early intervention program--physical and occupational therapies. In early intervention programs where physical therapy or occupational therapy, or both, is specified on the IEP, individual caseloads are determined with consideration to the type of services delivered and the time required for those services.]
PROCEDURAL SAFEGUARDS § 14.161. [Prehearing conferences] (Reserved).
[The purpose of the prehearing conference is to reach an amicable agreement in the best interest of the student or young child.
(1) In addition to the requirements incorporated by reference in 34 CFR 300.503--300.505 (relating to prior notice by the public agency; content of notice; procedural safeguards notice; and parental consent), the notice shall provide for a parent to request the school district or early intervention agency in the case of a young child to convene a prehearing conference in instances when the parent disapproves the school district's proposed action or refusal to act.
(2) When a parent requests and the school district or early intervention agency in the case of a young child agrees to participate in a prehearing conference, the conference shall be convened within 10 days of receipt of the parent notice and shall be chaired by the superintendent, the early intervention agency representative or their designees.
(3) A parent or the school district or early intervention agency in the case of a young child may waive the right to a prehearing conference and immediately request an impartial due process hearing under § 14.162 (relating to impartial due process hearing and expedited due process hearing).
(4) If the prehearing conference results in agreement, the provisions under § 14.131 (relating to IEP) shall be applied.
(5) Within 5 days of the agreement, a parent may notify the school district or early intervention agency in the case of a young child, in writing, of a decision not to approve the identification, evaluation, recommended assignment or the provision of a free appropriate public education. When a parent gives notice not to approve the identification, evaluation, recommended assignment, or the provision of a free appropriate public education, or if the prehearing conference does not result in an agreement, the provisions under § 14.162 shall be applied.]
§ 14.162. Impartial due process hearing and expedited 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 [the district has not obtained parental consent as required by 34 CFR 300.505(c) (relating to parental consent)] a parent fails to respond to the district or early intervention agency's proposed evaluation or reevaluation. When a parent rejects the [district's] 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 child with a disability or thought to be a child with a disability shall be conducted [by] on behalf of and 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 [by] on behalf of the early intervention agency 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.
* * * * * (q) The following [timeline] time line applies to due process hearings:
(1) A hearing shall be held [within 30 days after a parent's or school district's initial request for a hearing. If the school district uses the coordination services under subsection (p), the parent's request must be forwarded by the school district within 5 days of the receipt of the request to the service agency supported by the Secretary] 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 [parent's or school district's request for a hearing] the resolution or mediation session ends without resolution or agreement date.
* * * * * (t) 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.
(u) Impartial due process hearings, appeal panel proceedings and the hearing officers who conduct the hearings and proceedings shall be subject to 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).
(v) The Department will report to the Board by September 1 each year on the number of impartial due process hearings and appeal panel proceedings held during the previous school year. The report will also provide a Statewide summary of the results of the proceedings 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 hearings and appeal panel 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. 07-1146. Filed for public inspection June 29, 2007, 9:00 a.m.]
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