RULES AND REGULATIONS
Title 22—EDUCATION
STATE BOARD OF EDUCATION
[22 PA. CODE CH. 14]
Special Education Services and Programs; Intellectual Disability Terminology Update
[53 Pa.B. 7485]
[Saturday, December 2, 2023]The State Board of Education (Board) amends Chapter 14 (relating to special education services and programs) to read as set forth in Annex A in this final-omitted rulemaking.
Statutory Authority
The Board adopts this final-omitted rulemaking under the authority granted by sections 1372 and 2603-B of the Public School Code of 1949, as amended (24 P.S. §§ 13-1372 and 26-2603-B).
Purpose
This final-omitted rulemaking amends §§ 14.123—14.125, 14.132, 14.143 and 14.162 by replacing the term ''mental retardation'' with the term ''intellectual disability'' and by replacing the term ''mentally retarded'' with the term ''intellectual disability.'' These terminology updates are presented for clarity and for consistency with Rosa's Law (Pub.L. No. 111-256); the regulations found at 34 CFR 300.8(a)(1), (c)(6) and (7) and (10)(ii), 300.309(a)(3)(ii) and 300.311(a)(6); and the Mental Health and Intellectual Disability Act of 1966 (50 P.S. §§ 4101—4704).
Background
Currently, the regulations in Chapter 14 use the terms ''mental retardation'' and ''mentally retarded.'' Rosa's Law (Pub.L. No. 111-256) amended sections 7(21)(A)(iii), 204(b)(2)(C)(v) and 501(a) of the Rehabilitation Act of 1973 (29 U.S.C. §§ 705(21)(A)(iii), 764(b)(2)(C)(v) and 791(a)), sections 601(c)(12)(C) and 602(3)(A)(i) and 30(C) of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400(c)(12)(C) and 1401(3)(A)(i) and (30)(C)), section 760(2)(A) of the Higher Education Act of 1965 (20 U.S.C. § 1140(2)(A)) and section 7202(16)(E) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. § 7512(16)(E)) (subsequently renumbered as section 6202(16)(E) and repealed), by removing the term ''mental retardation'' and replacing it with the term ''intellectual disability.'' See also 82 FR 31910 (July 11, 2017). The act of November 22, 2011 (P.L. 420, No. 105) amended the Mental Health and Mental Retardation Act of 1966 to read as the ''Mental Health and Intellectual Disability Act of 1966'' and replaced the defined term and references to ''mental retardation'' with ''intellectual disability.''
The Board amends the terminology currently used in Chapter 14 to be consistent with the aforementioned changes in terminology that were enacted in Federal and State law. This final-omitted rulemaking supports individuals with an intellectual disability by replacing the terms ''mentally retarded'' and ''mental retardation'' with the term ''intellectual disability.'' The benefit of this final-omitted rulemaking is to promote respect, community integration and an array of opportunities for an individual with an intellectual disability by using words that are positive and up to date in the Board's regulations.
Summary of this Final-Omitted Rulemaking
This final-omitted rulemaking amends §§ 14.123, 14.124(a), 14.125(3)(ii), 14.132(a)(2)(vii) and (d), 14.143(b) and 14.162(a).
Amendments to these sections replace the term ''mental retardation'' with the term ''intellectual disability.''
§§ 14.124(c) (Reevaluation) and 14.162(a) (Impartial due process hearing and expedited due process hearing)
Amendments to these sections replace the term ''mentally retarded'' with the term ''intellectual disability.''
Affected Parties
This final-omitted rulemaking will affect public school entities, including school districts, area career and technical schools, intermediate units and their employees. This final-omitted rulemaking will also affect citizens of this Commonwealth with school-aged children and their school-aged children.
Fiscal Impact and Paperwork Estimates
This final-omitted rulemaking makes amendments for clarity and for consistency with Rosa's Law (Pub.L. No. 111-256) and the Mental Health and Intellectual Disability Act of 1966. This final-omitted rulemaking does not establish new requirements that carry an additional cost or create new paperwork requirements for the regulated community.
Effective Date
This final-omitted rulemaking will take effect upon notice or publication in the Pennsylvania Bulletin.
Sunset Date
The Board will review the effectiveness of Chapter 14 every 4 years in accordance with the Board's policy and practice regarding its regulations. Thus, no sunset date is necessary.
Omission of Proposed Rulemaking
Notice of proposed rulemaking is omitted in accordance with section 204(3) of the Commonwealth Documents Law (45 P.S. § 1204(3)) and 1 Pa. Code § 7.4(3) (relating to omission of notice of proposed rulemaking), because the Board finds for good cause that the proposed rulemaking is unnecessary and that a delay in the promulgation of these amendments is contrary to the public interest. Under Federal and State law, the terminology ''intellectual disability'' has replaced the archaic terminology ''mental retardation.'' See Rosa's Law (Pub.L. No. 111-256) and the Mental Health and Intellectual Disability Act of 1966.
Although this final-omitted rulemaking is not mandated by any Federal or State law, court orders or Federal regulations, this final-omitted rulemaking is in conformance with Federal and State law. See Rosa's Law (Pub.L.. No. 111-256) and the Mental Health and Intellectual Disability Act of 1966. Because these amendments are for the purpose of making the terminology in the Board's regulations consistent with the terminology used in Federal and State law, it is unnecessary to hold a public comment period because the Federal and State law dictate the terminology used and consideration of alternative constructs through public comment would be inconsistent with terminology used elsewhere.
Further, individuals affected by an intellectual disability, friends and family members of affected individuals, providers of services and supports for individuals with an intellectual disability, and county mental health/intellectual disability programs support the use of the up-to-date and appropriate term ''intellectual disability'' to replace the archaic term ''mental retardation.'' This final-omitted rulemaking promotes respect, community integration and an array of opportunities for an individual with an intellectual disability by using a term that is positive and up to date.
Regulatory Review
Under section 5.1(c) of the Regulatory Review Act, (71 P.S. § 745.5a(c)), on August 2, 2023, the Board submitted a copy of this final-omitted rulemaking, and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the chairperson of the Education Committee of the Senate and the chairperson of the Education Committee of the House of Representatives. On the same date, the final-omitted rulemaking was submitted to the Office of the Attorney General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on September 20, 2023, this final-omitted rulemaking was deemed approved by the Education Committee of the Senate and the Education Committee of the House of Representatives. Under section 5.1(e) of the Regulatory Review Act, IRRC met on September 21, 2023, and approved this final-omitted rulemaking.
Contact Person
Interested persons may contact Karen Molchanow, Executive Director, State Board of Education, ra-stateboardofed@pa.gov, 333 Market Street, 1st Floor, Harrisburg, PA 17126.
Findings
The Board finds that:
(a) Notice of proposed rulemaking is omitted in accordance with section 204(3) of the Commonwealth Documents Law and 1 Pa. Code § 7.4(3). The affected individuals with an intellectual disability, friends and family members of affected individuals, providers of services and supports for individuals with an intellectual disability and educational programs have previously indicated their support the use of the up-to-date and appropriate term ''intellectual disability.'' This final-omitted rulemaking promotes respect, community integration and an array of opportunities for an individual with an intellectual disability by using a term that is positive and up to date. The Federal government also has indicated its support for the use of the up-to-date and appropriate term ''intellectual disability.'' Additionally, public comment will not change the terminology used. Therefore, the Board, based on the reasons previously stated, finds that notice of proposed rulemaking is unnecessary and that a delay in the promulgation of these amendments is contrary to the public interest.
(b) The amendment of the regulations in the manner provided in this order is necessary and appropriate for the administration of the Board's regulations in Chapter 14.
Order
Acting under the authority of the Public School Code of 1949, the Board orders that:
(a) The regulations of the Board, 22 Pa. Code Chapter 14, are amended by amending §§ 14.123—14.125, 14.132, 14.143 and 14.162 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Executive Director of the Board shall submit a copy of this final-omitted rulemaking to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Executive Director of the Board shall submit this final-omitted rulemaking to IRRC and the Education Committee of the Senate and the Education Committee of the House of Representatives, as required by law.
(d) The Executive Director of the Board shall certify this final-omitted rulemaking, as approved for legality and form, and deposit it with the Legislative Reference Bureau as required by law.
(e) This final-omitted rulemaking shall take effect immediately upon publication in the Pennsylvania Bulletin.
KAREN MOLCHANOW,
Executive Director(Editor's Note: See 53 Pa.B. 6319 (October 7, 2023) for IRRC's approval.)
Fiscal Note: 6-341. No fiscal impact; recommends adoption.
Annex A
TITLE 22. EDUCATION
PART I. STATE BOARD OF EDUCATION
Subpart A. MISCELLANEOUS PROVISIONS
CHAPTER 14. SPECIAL EDUCATION SERVICES AND PROGRAMS
CHILD FIND, SCREENING AND EVALUATION § 14.123. Evaluation.
(a) The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.306 (relating to determination of eligibility), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, intellectual disability, multiple disabilities, other health impairments, specific learning disability or traumatic brain injury.
* * * * * § 14.124. Reevaluation.
(a) The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.303 (relating to reevaluations), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, intellectual disability, multiple disabilities, other health impairment, specific learning disability and traumatic brain injury.
* * * * * (c) Students with disabilities who are identified as having an intellectual disability shall be reevaluated at least once every 2 years.
* * * * * § 14.125. Criteria for the determination of specific learning disabilities.
This section contains the State-level criteria for determining the existence of a specific learning disability. Each school district and intermediate unit shall develop procedures for the determination of specific learning disabilities that conform to criteria in this section. These procedures shall be included in the school district's and intermediate unit's special education plan in accordance with § 14.104(b) (relating to special education plans). To determine that a child has a specific learning disability, the school district or intermediate unit shall:
* * * * * (3) Have determined that its findings under this section are not primarily the result of:
(i) A visual, hearing or orthopedic disability.
(ii) Intellectual disability.
(iii) Emotional disturbance.
(iv) Cultural factors.
(v) Environmental or economic disadvantage.
(vi) Limited English proficiency.
* * * * *
IEP § 14.132. ESY.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.106 (relating to extended school year services), school entities shall use the following standards for determining whether a student with disabilities requires ESY as part of the student's program:
* * * * * (2) In considering whether a student is eligible for ESY services, the IEP team shall consider the following factors; however, no single factor will be considered determinative:
* * * * * (vii) Whether the student's disability is severe, such as autism/pervasive developmental disorder, serious emotional disturbance, severe intellectual disability, degenerative impairments with mental involvement and severe multiple disabilities.
* * * * * (d) Students with severe disabilities such as autism/pervasive developmental disorder, serious emotional disturbance; severe intellectual disability; degenerative impairments with mental involvement; and severe multiple disabilities require expeditious determinations of eligibility for ESY services to be provided as follows:
* * * * *
EDUCATIONAL PLACEMENT § 14.143. Disciplinary placements.
* * * * * (b) A removal from school is a change of placement for a student who is identified with an intellectual disability, except if the student's actions are consistent with 34 CFR 300.530(g)(1)—(3) (relating to authority of school personnel).
PROCEDURAL SAFEGUARDS § 14.162. Impartial due process hearing and expedited due process hearing.
(a) In addition to the requirements incorporated by reference in 34 CFR 300.504 (relating to procedural safeguard notice), with regard to a student who has an intellectual disability or who is thought to have an intellectual disability, a notice when mailed shall be issued to the parent by certified mail (addressee only, return receipt requested).
* * * * *
[Pa.B. Doc. No. 23-1675. Filed for public inspection December 1, 2023, 9:00 a.m.]
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