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RULES AND REGULATIONS

Title 22--EDUCATION

STATE BOARD OF EDUCATION

[22 PA. CODE CHS. 14, 16 AND 342]

Gifted Education; Special Education Services and Programs

[30 Pa.B. 6330]

   The State Board of Education (Board)  deletes the gifted education provisions of Chapters 14 and 342 (relating to special education services and programs) and adds a new Chapter 16 (relating to gifted education) to read as set forth in Annex A, under the authority of sections 1371, 2601-B and 2602-B of the Public School Code of 1949 (School Code) (24 P. S. §§ 13-1371, 26-2601-B and 26-2602-B).

   Notice of proposed rulemaking was published at 28 Pa.B. 4939 (October 3, 1998) with an invitation to submit written comments within 30 days.

Purpose

   The Board acknowledges that students who are gifted and therefore need specially designed instruction are considered to be children with exceptionalities under section 1371(1) of the School Code. The creation of Chapter 16 and the separation of gifted education from Chapters 14 and 342 are not intended to circumvent the statutory protections afforded to gifted students by the School Code, nor is it the Board's intent to create a need to relitigate case law already established in this Commonwealth pertaining to gifted students. It is the Board's intent to draw a clear distinction between gifted education as required in this Commonwealth and special education as required by Federal law. To accomplish this, the Board has removed or changed references to terms and concepts which are clearly linked to special education as prescribed under the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485). This chapter is intended to strike a proper balance between necessary regulatory protections and maximum local control.

Response to Comments

   Oversight of gifted education by the Department. Public commentators, the Senate Education Committee and the Independent Regulatory Review Commission (IRRC) recommended that oversight and monitoring responsibilities of the Department be specified as found in Chapters 14 and 342. Language in Chapters 14 and 342 is required by Federal statute for students with disabilities. Repeating that language in this chapter would not serve the goal of separating Federally-driven provisions for students with disabilities from those determined by the Commonwealth for students who are gifted.

   As a result, no additional language was added to the final-form regulation in § 16.6 (relating to general supervision) because the responsibility of the Secretary and the Department to oversee gifted education is found in the School Code. Section 1371(1) of the School Code includes students who are gifted in the term children with exceptionalities. In section 1372 of the School Code, the responsibility of the Secretary to ensure that special education for students with exceptionalities is delineated. Specifically the Secretary is required to ''superintend the organization of special classes and other arrangements for special education and shall enforce the provisions of this act relating thereto (24 P. S. § 13-1372(3)).'' To meet this responsibility, the Secretary will continue to include students who are gifted in Departmental tracking systems, monitor the actions of school districts for compliance with the requirements of this regulation, and hear and investigate complaints.

   Limitation on class size. Public commentators, the Senate Education Committee and IRRC recommended that in addition to establishing a case load maximum, a maximum class size should be established in § 16.41(c) (relating to general). Under Chapter 342, class size is limited to 15. A statewide gifted education organization suggested that a class size maximum of 20 be included in the regulation. The final form regulation has been revised under § 16.41(c)(4) to include this maximum class size.

   Participation of regular education teachers in the gifted individualized education program (GIEPs). Public commentators recommended that both gifted and regular education teachers participate in the GIEP meeting. Section 16.41 of the proposed rulemaking stated that ''one or more of the student's current teachers'' participate in the GIEP. The teacher or teachers involved in the GIEP could be a teacher of gifted students or a regular education teacher. There is currently no unique certification for teachers of gifted students. No change was made on final-form to provide local districts with the flexibility to include and involve teachers as necessary to develop an appropriate program.

   Prehearing conference. Public commentators and IRRC recommended the addition of the prehearing conference provision available to parents of gifted students in current Chapters 14 and 342. In the past, persons have found the prehearing procedure obviates the need for the time and expense consumed by the formal hearing process. However, a relatively high percentage of prehearing conferences are unable to resolve differences with the parties electing to proceed to a due process proceeding anyway. The Board heard from many that it would be more efficient to move directly to a due process hearing to resolve differences.

   Title change. Public commentators, the House and Senate Education Committees and IRRC commented that the title of the chapter be revised to better reflect statutes requiring special education for students who are gifted. The title is changed on final-form.

   Graduation plans. Public commentators, the House Education Committee and IRRC recommended that proposed rulemaking be revised to add a requirement for a graduation plan. IRRC stated that a GIEP would not be complete without graduation planning for those in high school. In considering the addition of a graduation plan, the Board felt that planning courses and experiences needed to meet graduation requirements needs to be determined is implicit in the development of GIEP's for high school students. To make this clear, the Department will advise local school districts of this responsibility.

   Dual exceptionality. Public commentators, the Senate Education Committee and IRRC recommended that the language in § 16.7(b) (relating to special education) be clarified to ensure that for students determined to be eligible for special education and needing gifted education, the processes followed under Chapters 14 and 342 fully address the students' needs related to disability as well as that for gifted status. The final-form regulations have been revised to clarify the intent to provide fully for students with dual exceptionality.

   Deletion of nonregulatory language. IRRC identified several places where nonregulatory language was contained within the regulation and recommended its deletion or movement to the Preamble (such as, § 16.2(b) (relating to purpose) which explains the Board's intent in developing separate gifted education regulations). In addition, IRRC identified several places where regulatory language was embedded within definitions under §§ 16.1 and 16.64(b) (relating to definitions; and mediation), and recommended that they be moved to the body of the regulation (such as, regulatory language found in the definition of ''mentally gifted'' was moved to § 16.21(d)) or deleted (such as, the mediator's responsibility under the definition of joint session). The changes have been made in the final-form rulemaking.

   Deadline for implementation of the individualized education program (IEP). The House and Senate Education Committees and IRRC commented that there was no time frame in which a completed GIEP must be implemented. The final-form was revised to require the implementation of the completed GIEP within 10 school days or at the start of the following school year if the GIEP is completed less than 30 days before the last day of scheduled classes.

   Subpoena powers. Public commentators and IRRC questioned the statutory authority under which the Board could empower parties in a due process hearing to compel the attendance of witnesses, found in the proposed rulemaking under § 16.63(k) (relating to impartial due process hearing). No statutory provision can be found for the compelling of witnesses in a due process hearing. The Board has deleted this provision in the final-form rulemaking.

   Evaluation by certified school psychologist. Public commentators, the Senate Education Committee and IRRC recommended that the broad language of § 16.22(h)(3)(iv) (relating to gifted multidisciplinary evaluation) enabling certified professional employes to administer tests and similar evaluation materials used to determine giftedness be eliminated to clarify that only certified school psychologists are able to administer tests and evaluation materials. The final-form rulemaking has been revised accordingly.

   Definition of criteria for gifted education. IRRC commented that the criteria for determination of gifted status currently found in Department guidelines are regulatory in nature and should be added to the regulation. Criteria has been added to § 16.21(e) (relating to general).

Application of Education Empowerment Act

   On May 10, 2000, the Governor approved the Education Empowerment Act (EEA) (24 P. S. Art. XVII-B). Effective July 1, 2000, section 1714-B of the EEA (24 P. S. § 17-1714-B) established a mandate waiver program under which the Department of Education is empowered to waive certain statutory and regulatory mandates on application of any school district. However, the EEA expressly exempts from the Department's waiver authority certain specified statutes and regulations. Among those regulations exempted from the waiver program is Chapter 14. See 24 P. S. § 17-1714-B(h).

   On May 4, 2000, the Board submitted its final-form regulations to IRRC and the Senate and House Education Committees for review under the Regulatory Review Act. However, at the Board's meeting held May 11, 2000, concerns were raised as to whether a new Chapter 16 would be exempt from the EEA's mandate waiver program scheduled to take effect July 1, 2000. To study this new legal issue, the Board on May 11 voted to recall its final-form regulations from regulatory review.

   At the request of the Board, the Secretary asked the Department's Office of Chief Counsel to render an opinion on the issue. The Department's Office of Chief Counsel advised the Secretary that because the General Assembly clearly intended to exempt from the mandate waiver program all of Chapter 14, including the provisions governing gifted education, a new Chapter 16 governing gifted education would also be exempt from the mandate waiver program under section 1714-B(h) of the EEA. The change in numbering of the regulations by the Board would not alter the clear legislative intent to exempt from the program all Board regulations contained in Chapter 14 at the time the law went into effect.

   Satisfied that a new Chapter 16 would be exempt from the mandate waiver program of the EEA exactly as Chapter 14 is exempt, the Board on July 12, 2000, voted to resubmit its final-form regulations.

Changes Directed by Attorney General

   Based on its review under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506), on September 19, 2000, the Office of the Attorney General requested that clarification be made in the language in two sections. First, in § 16.21(a) the Office of the Attorney General found that the language used in this section might limit the efforts of school districts to identify students suspected of being gifted to those enrolled in the school district. A duty is created under 24 P. S. § 13-1371 for superintendents of school districts to identify and report every exceptional child within the district. To ensure that students suspected of being gifted in the district are identified regardless of whether they are enrolled in the public schools or not, changes were made to § 16.21(a) and (b).

   Second, the Office of the Attorney General required that § 16.63(h) be changed prior to publication to make it clear that under State law, licensed attorneys only may represent parents in due process proceedings. Changes to § 16.63(h) were made to clarify the role of legal counsel and other parties with special knowledge or training with respect to students who are gifted.

   These changes to the regulations were ratified by the Board on November 16, 2000.

Affected Parties

   Chapter 16 will benefit Commonwealth students who are, or thought to be, gifted; their parents; and school districts and other education agencies which must comply with the regulations.

Cost and Paperwork Estimates

   The final-form regulations impose no additional cost or revenue loss to the Commonwealth. They will not require any additional reports or paperwork requirements. None of the regulatory requirements in the chapter are new for school districts, and, in fact, a number of regulatory requirements have been removed or reduced. For example, routine reevaluations of the approximately 85,000 identified gifted students currently required every 2 years, cost an average of $250 per student. Eliminating the requirements for reevaluation every 2 years, assuming that reevaluations are requested for 20% of gifted students, can reduce costs to school districts by approximately $16.8 million over 3 years. Moreover, considerable staff time can be redirected to teaching and other services for students.

Effective Date

   Chapter 16 will become effective upon final publication in the Pennsylvania Bulletin.

Sunset Date

   The effectiveness of Chapter 16 will be reviewed by the Board every 4 years in accordance with the Board's policy and practice respecting all regulations promulgated by the Board. Thus, no sunset date is necessary.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 23, 1998, the Board submitted a copy of the proposed rulemaking published at 28 Pa.B. 4939 to IRRC and to the Chairpersons of the House and Senate Committees on Education for review and comment.

   In compliance with section 5(c) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received as well as other documentation. In preparing these final-form regulations, the Board 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)), the final-form regulations were deemed approved by the Senate and House Committees. IRRC met on August 10, 2000, and approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act.

Contact Person

   The official responsible for information on these final-form regulations is Peter H. Garland, Executive Director of the State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 787-3787 or TDD (717) 787-7367.

Findings

   The Board finds that:

   (1)  Public notice of the intention to adopt these regulations 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 promulgated 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 regulations are necessary and appropriate for the administration of the School Code.

Order

   The Board, acting under the authorizing statute, orders that:

   (a)  The regulations of the Board, 22 Pa. Code Chapters 14, 16 and 342, are amended by amending §§ 14.1, 14.2, 14.24, 14.25, 14.38, 14.67, 342.1, 342.25, 342.38 and 342.42 and by adding §§ 16.1--16.7, 16.21--16.23, 16.31--16.33, 16.41, 16.42 and 16.61--16.65 to read as set forth at Annex A, with ellipses referring to the existing text of the regulations.

   (b)  The Executive Director will submit 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.

   (c)  The Executive Director of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order is effective upon final publication in the Pennsylvania Bulletin.

PETER H. GARLAND,   
Executive Director

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 4480 (August 26, 2000).)

   Fiscal Note:  Fiscal Note 6-266 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 22.  EDUCATION

PART I.  STATE BOARD OF EDUCATION

CHAPTER 14.  SPECIAL EDUCATION SERVICES AND PROGRAMS

§ 14.1. Definitions.

   The following words and terms, when used in this chapter have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   Exceptional student--For purposes of this chapter, an eligible student.

*      *      *      *      *

§ 14.2.  Purpose.

   (a)  This chapter specifies how the Commonwealth will meet its obligations to suspected and identified exceptional students and to young children who require early intervention services to reach their potential. It is the intent of the Board that exceptional students and eligible young children be provided with quality special education services and programs. Achieving this purpose will require mutual efforts by the Commonwealth, school districts and other agencies.

   (b)  The Commonwealth, through the Department, will provide general supervision of services and programs provided under this chapter and Chapter 342 (relating to special education services and programs) and will meet other obligations of State and Federal law and this chapter.

   (c)  The Department will disseminate information about and promote the use of promising practices and innovative programs to meet the needs of exceptional students and eligible young children.

   (d)  To provide services and programs efficiently, the Commonwealth will delegate operational responsibility to its school districts. Each school district shall, by direct service or through arrangement with other agencies, provide the following:

   (1)  Services and programs planned, developed and operated for the early identification and evaluation of each exceptional student, including early intervention for eligible young children.

   (2)  A continuum of services and programs to provide instructional support to a student recommended for screening under §§ 14.21--14.25 (relating to screening and evaluation process) and found by the screening to be in need of assistance to achieve in school according to the documented needs and abilities of the student.

   (3)  A continuum of services to provide instructional support to assist eligible students to benefit from regular education programs, to the maximum extent appropriate.

   (4)  A free appropriate public program of education for each exceptional student which is based on the unique needs of the student, not solely on the classification of the student.

   (5)  Opportunities for each eligible student, including students in public or private day or residential facilities, to interact with noneligible students and adults in community and school based activities, when appropriate.

   (6)  An education for each eligible student which approximates as nearly as possible the approved curriculum of the school district.

   (7)  An education for each eligible student which is designed to enable the student to participate fully and independently in the community, including preparation for employment or higher education.

   (8)  An appropriate program of early intervention services and programs for eligible young children as specified in this chapter and Chapter 342.

SCREENING AND EVALUATION PROCESS

§ 14.24.  Instructional support.

   (a)  This section does not apply to students beyond the sixth grade who are thought to be eligible, to students attending nonpublic schools who are thought to be exceptional or to young children not yet of kindergarten age or not enrolled in a public school program.

*      *      *      *      *

§ 14.25.  Multidisciplinary evaluation.

*      *      *      *      *

   (c)  A multidisciplinary evaluation shall be initiated if one of the following applies:

*      *      *      *      *

   (5)  The student is beyond the sixth grade and thought to be eligible, the student attends a nonpublic school and is thought to be exceptional or the young child thought to be eligible is not yet of kindergarten age or not enrolled in a public school program.

IEP

§ 14.38.  Planned courses.

   Planned courses for exceptional students shall be conducted under Chapter 4 (relating to academic standards and assessment), this chapter and Chapter 342 (relating to special education services and programs). Planned courses shall include provisions for:

   (1)  An orderly sequence of instruction to permit the development of learning skills and assessment of student progress.

   (2)  Adaptations or modifications in existing curricula or instructional approaches which will allow an exceptional student to progress through the regular curriculum of the district to earn credits toward graduation.

   (3)  Adaptions or modifications in existing curricula or instructional approaches which allow the student to develop skills necessary to make a transition from the school environment to community life and employment.

   (4)  Development of curricula which lead to instruction and supervision of instruction designed to teach skills which are functional and usable in participating in family, community, leisure and work activities in school and in the community.

PROCEDURAL SAFEGUARDS

§ 14.67. Independent educational evaluation.

   (a)  The parents of an eligible student or eligible young child or student or young child thought to be eligible have the right to obtain an independent educational evaluation of the student or young child, subject to subsections (b)--(f).

   (b)  Each school district shall provide to parents, on request, information about where an independent educational evaluation may be obtained.

   (c)  If parents obtain an independent educational evaluation at private expense, the results of the evaluation shall be considered by the district in decisions made with respect to the provisions of a free appropriate public education to the student and may be presented as evidence at a due process hearing regarding that student.

   (d)  If a hearing officer requests an independent educational evaluation as part of a due process hearing, the cost of the evaluation shall be at public expense.

   (e)  Whenever an independent evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the evaluators, shall be the same as the criteria which the district uses when it initiates an evaluation.

   (f)  Parents have the right to an independent evaluation at public expense if the parents disagree with an evaluation obtained by the school entity. The school entity may initiate a hearing under § 14.64 (relating to impartial due process hearing) to show that its evaluation is appropriate. If the final decision is that the school entity's evaluation was appropriate, the parents may present a privately-commissioned independent educational evaluation not at public expense.

CHAPTER 16.  SPECIAL EDUCATION FOR GIFTED STUDENTS

GENERAL PROVISIONS

Sec.

16.1.Definitions.
16.2.Purpose.
16.3.Experimental programs.
16.4.Strategic plans.
16.5.Personnel.
16.6.General supervision.
16.7.Special education.

SCREENING AND EVALUATION

16.21.General.
16.22.Gifted multidisciplinary evaluation.
16.23.Gifted multidisciplinary reevaluation.

GIEP

16.31.General.
16.32.GIEP.
16.33.Support services.

EDUCATIONAL PLACEMENT

16.41.General.
16.42.Parental placement in private schools.

PROCEDURAL SAFEGUARDS

16.61.Notice.
16.62.Consent.
16.63.Impartial due process hearing.
16.64.Mediation.
16.65.Confidentiality.

GENERAL PROVISIONS

§ 16.1.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Agency--An intermediate unit, school district, area vocational technical school, State-operated program or facility, or other public or private organization providing educational services to gifted students or students thought to be gifted.

   Chapter 4--The State Board of Education regulations as adopted under statutory authority in the School Code.

   Educational placement--The overall educational environment in which gifted education is provided to a gifted student.

   GIEP--Gifted Individualized Education Program.

   GMDT--Gifted Multidisciplinary Team.

   Gifted education--Specially designed instruction to meet the needs of a gifted student that is:

   (i)  Conducted in an instructional setting.

   (ii)  Provided in an instructional or skill area.

   (iii)  Provided at no cost to the parents.

   (iv)  Provided under the authority of a school district, directly, by referral or by contract.

   (v)  Provided by an agency.

   (vi)  Individualized to meet the educational needs of the student.

   (vii)  Reasonably calculated to yield meaningful educational benefit and student progress.

   (viii)  Provided in conformity with a GIEP.

   Gifted Multidisciplinary Evaluation--A systematic process of testing, assessment, and other evaluative processes used by a team to develop a recommendation about whether or not a student is gifted or needs gifted education.

   Gifted student--A student who is exceptional under section 1371 of the School Code (24 P. S. § 13-1371) because the student meets the definition of ''mentally gifted'' in this section, and needs specially designed instruction beyond that required in Chapter 4 (relating to academic standards and assessment). This term applies only to students who are of ''school age'' as defined under § 11.12 (relating to school age).

   Instructional setting--A classroom or other setting in which gifted students are receiving gifted education.

   Mentally gifted--Outstanding intellectual and creative ability the development of which requires specially designed programs or support services, or both, not ordinarily provided in the regular education program.

   Parents--A natural or adoptive parent or parents, a guardian or guardians, one or more persons acting as the parent or parents of a student.

   Party--Parent or school district.

   Regular classroom--A specific instructional grouping within the regular education environment.

   Regular education environment--The regular classroom and other instructional settings in which students without a need for gifted education receive instructional programs and the full range of supportive services normally provided to these children.

   School Code--The Public School Code of 1949 (24 P. S. §§ 1-101--27-2702).

   School day--A day in which school is in session.

   Screening and evaluation process--The systematic determination of whether or not a student is gifted or needs gifted education.

   Specially designed instruction--Adaptations or modifications to the general curriculum, instruction, instructional environments, methods, materials, or a specialized curriculum for students who are gifted.

   Support services--Services as required under § 16.33 (relating to support services) to assist a gifted student to benefit from gifted education. Examples of the term include:

   (i)  Psychological services.

   (ii)  Parent counseling and education.

   (iii)  Counseling services.

   (iv)  Transportation to and from gifted programs to classrooms in buildings operated by the school district.

§ 16.2.  Purpose.

   (a)  This chapter specifies how the Commonwealth will meet its obligations to suspected and identified gifted students who require gifted education to reach their potential. It is the intent of the Board that gifted students be provided with quality gifted education services and programs.

   (b)  The Commonwealth, through the Department, will provide general supervision of services and programs provided under this chapter.

   (c)  The Department will disseminate information about and promote the use of promising practices and innovative programs to meet the needs of gifted students.

   (d)  To provide services and programs efficiently, the Commonwealth will delegate operational responsibility to its school districts. Each school district shall, by direct service or through arrangement with other agencies, provide the following:

   (1)  Services and programs planned, developed and operated for the identification and evaluation of each gifted student.

   (2)  Gifted education for each gifted student which is based on the unique needs of the student, not solely on the student's classification.

   (3)  Gifted education for gifted students which enables them to participate in acceleration or enrichment programs, or both, as appropriate, and to receive services according to their intellectual and academic abilities and needs.

§ 16.3.  Experimental programs.

   (a)  The Secretary may approve exceptions to this chapter for the operation of experimental programs that are anticipated to improve student achievement and that meet certain unique programmatic needs of gifted students. School districts shall submit an annual application for approval of those programs. The application shall:

   (1)  Include provision for the involvement of parents, administrators and professionals in the design and ongoing review of performance.

   (2)  Include provisions for annually evaluating the program as to whether it benefits student achievement.

   (3)  Demonstrate that it has met the following criteria:

   (i)  A definition of the need that exists which necessitates an experimental program.

   (ii)  Data to support the existence of the need.

   (iii)  A description of the program, including the nature of the program, specific goals and objectives to be reached, role and function of personnel involved, and timelines for development, implementation and evaluation.

   (b)  When an experimental program has been approved for 3-consecutive years and has resulted in improved student achievement under subsection (a), annual application is not needed for the program to continue to operate.

   (c)  The Secretary may terminate an experimental program for failing to meet the objectives established in the application or for noncompliance with State law or regulations not specifically waived in the Secretary's approval of the experimental program under subsection (a) upon 60 days notice.

   (d)  The Secretary will report annually to the Board regarding applications for experimental programs under this section and the disposition of the applications.

§ 16.4.  Strategic plans.

   (a)  Each school district's strategic plan developed under Chapter 4 (relating to academic standards and assessments) shall include procedures for the education of all gifted students enrolled in the district. The strategic plan shall be developed to ensure the support of the implementation of plans developed under subsection (b).

   (b)  Each school district shall provide, as the Department may require, reports of students, personnel and program elements, including the costs of the elements, which are relevant to the delivery of gifted education.

§ 16.5.  Personnel.

   (a)  Professional personnel shall consist of certified individuals responsible for identifying gifted students and providing gifted education in accordance with Article XI of the School Code (24 P. S. §§ 11-1101--11-1192) and this title.

   (b)  Paraprofessional personnel consist of individuals who work under the direction of professional personnel as defined in this chapter. The duties and training of the paraprofessional staff shall be determined by the employing agency.

   (c)  A school district and intermediate unit shall provide, under section 1205.1 of the School Code (24 P. S. § 12-1205.1), in-service training for gifted and regular teachers, principals, administrators and support staff persons responsible for gifted education.

§ 16.6.  General supervision.

   (a)  Educational programs for gifted students administered within this Commonwealth are considered to be under the general supervision of the Department and shall meet the provisions of this chapter.

   (b)  The Department will ensure that appropriate and responsible fiscal oversight and control is maintained over the development and provision of gifted education in accordance with this chapter providing for fiscal accountability and prudent management.

   (c)  The Board will review this chapter at least every 4 years to ensure consistent interpretation and application of this chapter.

§ 16.7.  Special education.

   (a)  Nothing in this chapter is intended to reduce the protections afforded to students who are eligible for special education as provided for under Chapters 14 and 342 (relating to special education services and programs) and the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--1485).

   (b)  If a student is determined to be both gifted and eligible for special education, the procedures in Chapter 14 and 342 shall take precedence. For these students identified with dual exceptionalities, the needs established under gifted status in this chapter shall be fully addressed in the procedures required in Chapters 14 and 342.

   (c)  For students who are gifted and eligible for special education, it is not necessary for school districts to conduct separate screening and evaluations, develop separate IEPs, or use separate procedural safeguards processes to provide for a student's needs as both a gifted and an eligible student.

SCREENING AND EVALUATION PROCESS

§ 16.21.  General.

   (a)  Each school district shall adopt and use a system to locate and identify all students within that district who are thought to be gifted and in need of specially designed instruction.

   (b)  Each school district shall conduct awareness activities to inform the public of gifted education services and programs and the manner by which to request these services and programs. These awareness activities shall be designed to reach parents of students enrolled in the public schools and the parents of school age children not enrolled in the public schools.

   (c)  Each school district shall determine the student's needs through a screening and evaluation process which meets the requirements of this chapter.

   (d)  Each school district shall establish procedures to determine whether a student is mentally gifted. This term includes a person who has an IQ of 130 or higher and when multiple criteria as set forth in Department Guidelines indicate gifted ability. Determination of gifted ability will not be based on IQ score alone. A person with an IQ score lower than 130 may be admitted to gifted programs when other educational criteria in the profile of the person strongly indicate gifted ability. Determination of mentally gifted shall include an assessment by a certified school psychologist.

   (e)  Multiple criteria indicating gifted ability include:

   (1)  A year or more above grade achievement level for the normal age group in one or more subjects as measured by Nationally normed and validated achievement tests able to accurately reflect gifted performance. Subject results shall yield academic instruction levels in all academic subject areas.

   (2)  An observed or measured rate of acquisition/retention of new academic content or skills that reflect gifted ability.

   (3)  Demonstrated achievement, performance or expertise in one or more academic areas as evidenced by excellence of products, portfolio or research, as well as criterion-referenced team judgement.

   (4)  Early and measured use of high level thinking skills, academic creativity, leadership skills, intense academic interest areas, communications skills, foreign language aptitude or technology expertise.

   (5)  Documented, observed, validated or assessed evidence that intervening factors such as English as a second language, learning disability, physical impairment, emotional disability, gender or race bias, or socio/cultural deprivation are masking gifted abilities.

§ 16.22. Gifted multidisciplinary evaluation.

   (a)  Prior to conducting an initial gifted multidisciplinary evaluation, the school district shall comply with the notice and consent requirements under §§ 16.61 and § 16.62 (relating to notice; and consent).

   (b)  Referral for gifted multidisciplinary evaluation shall be made when the student is suspected by teachers or parents of being gifted and not receiving an appropriate education under Chapter 4 (relating to academic standards and assessment) and one or more of the following apply:

   (1)  A request for evaluation has been made by the student's parents under subsection (c).

   (2)  The student is thought to be gifted because the school district's screening of the student indicates high potential consistent with the definition of mentally gifted or a performance level which exceeds that of other students in the regular classroom.

   (3)  A hearing officer or judicial decision orders a gifted multidisciplinary evaluation.

   (c)  Parents who suspect that their child is gifted may request a gifted multidisciplinary evaluation of their child at any time, with a limit of one request per school term. The request shall be in writing. If a parental request is made orally to school personnel, the personnel shall inform the parents that the request shall be made in writing and shall provide the parents with a form for that purpose.

   (d)  Multidisciplinary evaluations shall be conducted by GMDTs. The GMDT shall be formed on the basis of the student's needs and shall be comprised of the student's parents, a certified school psychologist, persons familiar with the student's educational experience and performance, one or more of the student's current teachers, persons trained in the appropriate evaluation techniques and, when possible, persons familiar with the student's cultural background. A single member of the GMDT may meet two or more of the qualifications specified in this subsection.

   (e)  Gifted multidisciplinary evaluations shall be sufficient in scope and depth to investigate information relevant to the student's suspected giftedness, including academic functioning, learning strengths and educational needs.

   (f)  The multidisciplinary evaluation process shall include information from the parents or others who interact with the student on a regular basis, and may include information from the student if appropriate.

   (g)  The following protection-in-evaluation measures shall be considered when performing an evaluation of students suspected of being gifted:

   (1)  No one test or type of test may be used as the sole criterion for determining that a student is or is not gifted.

   (2)  Intelligence tests yielding an IQ score may not be used as the only measure of aptitude for students of limited English proficiency, or for students of racial-, linguistic- or ethnic-minority background.

   (3)  Tests and similar evaluation materials used in the determination of giftedness shall be:

   (i)  Selected and administered in a manner that is free from racial and cultural bias and bias based on disability.

   (ii)  Selected and administered so that the test results accurately reflect the student's aptitude, achievement level or whatever other factor the test purports to measure.

   (iii)  Professionally validated for the specific purpose for which they are used.

   (iv)  Administered by certified school psychologists under instructions provided by the producer of the tests and sound professional practice.

   (v)  Selected and administered to assess specific areas of educational need and ability and not merely a single general IQ.

   (h)  The GMDT shall prepare a written report which brings together the information and findings from the evaluation or reevaluation concerning the student's educational needs and strengths. The report shall make recommendations as to whether the student is gifted and in need of specially designed instruction, shall indicate the bases for those recommendations, and shall indicate the names and positions of the members of the GMDT.

   (i)  To recommend that a student who has been evaluated is a gifted student, the GMDT shall conclude that the student needs specially designed education and meets the criteria for eligibility as defined in §§ 16.1 and 16.21 (relating to definitions; and general).

   (j)  The following timeline applies to the completion of gifted multidisciplinary evaluations:

   (1)  Each district shall establish and implement procedures to complete a gifted multidisciplinary evaluation for a student referred for evaluation within 45 school days after receiving parental permission for an initial evaluation, after notifying the parents of a reevaluation or after receiving an order of a court or hearing officer to conduct a multidisciplinary evaluation.

   (2)  An evaluation report shall be completed within 10 school days after completion of the gifted multidisciplinary evaluation.

   (3)  Within 5 school days after its completion, a copy of the evaluation report shall be delivered to the parents of the student.

§ 16.23.  Gifted multidisciplinary reevaluation.

   (a)  Gifted students shall be reevaluated before a change in educational placement is recommended for the student and when the conditions under § 16.22(b)(1) or (3) (relating to gifted multidisciplinary evaluations) are met. In addition, gifted students may be reevaluated at any time under recommendation by the GIEP team.

   (b)  Reevaluations shall be developed in accordance with all the requirements concerning evaluation in this chapter.

   (c)  Reevaluations shall include a review of the student's GIEP, a determination of which instructional activities have been successful, and recommendations for the revision of the GIEP.

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