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PROPOSED RULEMAKING

STATE BOARD
OF EDUCATION

[22 PA. CODE CH. 14]

Special Education Services and Programs

[37 Pa.B. 2961]
[Saturday, June 30, 2007]

   The State Board of Education (Board) proposes to amend Chapter 14 (relating to special education services and programs) to read as set forth in Annex A. The Board is acting under the authority of sections 1372 and 2306-B of the Public School Code of 1949 (code) (24 P. S. §§ 13-1372 and 26-2603-B).

   This proposed rulemaking establishes procedures for the identification of students who are disabled and in need of special education services and programs. This proposed rulemaking sets forth requirements and procedures for the delivery of those services and programs. As provided in the code, Chapter 14 does not apply to public charter schools or cyber charter schools. Instead these schools must follow the regulations of the Department of Education (Department) in Chapter 711 (relating to charter school services and programs for children with disabilities).

   A committee of the Board (committee) held five regional public roundtable meetings during December 2006 and January 2007 and stakeholders were provided an opportunity to discuss the issues and share their concerns about special education. The committee then circulated draft regulations and conducted three regional public hearings to solicit public input on the draft regulations in March 2007. Notices of the meetings were distributed to individuals and organizations who asked to be included on the Board's stakeholder list. Notice was sent to superintendents, intermediate unit executive directors, area vocational school directors and others through the Department's PennLINK email system. Legal notices of the hearings were published in regional newspapers, public notice was posted on the Board website and Sunshine Act notices were posted at the meeting sites. A number of large Statewide education associations alerted their members and others about the meetings through e-mail distribution lists, websites and publications.

   Throughout the process of drafting this proposed rulemaking, the Board prepared and posted updated drafts on the Board's website. The Chapter 14 committee met in public meetings on November 14, 2006, January 17, 2007, March 21, 2007, and May 16, 2007, when various versions of the proposed rulemaking were reviewed and discussed. Members of the public were provided opportunities to provide comments to the committee at these meetings. In addition to the comments provided at the roundtables, hearings and committee meetings, numerous individuals and organizations provided written comments to the Board by menas of letters and e-mails. The Board heard from over 250 individuals and organizations thoroughout this process.

Purpose

   The proposed amendments to Chapter 14 are designed to align the chapter with the Federal Individuals With Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400--1482), as amended December 3, 2004, related Federal regulations and applicable provisions of Pennsylvania statute, court decisions and settlement agreements. The Federal regulations are available at http://idea.ed.gov/explore/home.

   The Board determined that many areas in the Federal rules are sufficiently detailed to provide for effective implementation and, therefore, are proposed to be incorporated by reference.

   Additional language is found in this proposal when: 1) Federal rules require greater detail for implementation; 2) court decisions or settlement agreements applicable to the Commonwealth require regulation; 3) State statute requires regulation; and 4) the current practice of special education in this Commonwealth requires regulation.

   This proposed rulemaking will become part of the eligibility grant application to the United States Department of Education under IDEA ensuring the provision of a free, appropriate public education to students and children with disabilities. The Commonwealth must demonstrate a good faith effort to align its policies with IDEA and its implementing regulations to be eligible to receive Federal funds. Copies of the eligibility grant application will be made available to the public through the Department.

Requirements of the Proposed Rulemaking

   The proposed rulemaking adopts terminology, establishes the purpose, specifies time lines for development and implementation of Individualized Education Program (IEP) plans, maintains requirements regarding extended school year services, requires behavior support in addition to the Federal requirements, establishes qualifications for instructional paraprofessional staff, sets qualifications for educational sign language interpreters and provides criteria for the facilities in which special education services and programs are to be delivered. Major elements of the proposed rulemaking include the following:

§ 14.101. Definitions.

   This section defines the term ''school entity'' that is used throughout the chapter. In select locations, the regulation applies only to specific type of entities so they are identified when appropriate instead of using the blanket term ''school entity.'' For the purpose of adding clarity, additional detail is added to the definition of ''early intervention services.'' The term ''instructional support team'' is deleted as it is no longer used.

§ 14.102. Purposes.

   Language is added to this section so that children with disabilities have access to the general curriculum and participate in State and local assessments. Children with disabilities are to be educated, to the extent appropriate, with students without disabilities and provided supplementary aids and services as indicated in their IEP. School entities are to provide a full continuum of placement options. Outdated references to Federal regulations are deleted and replaced with references to the current Federal regulations issued on August 14, 2006.

§ 14.103. Terminology related to Federal regulations.

   Language is added to this section to indicate that intermediate units are considered the local education agency for purposes under Federal regulations regarding children with disabilities enrolled in private schools.

§ 14.104. Educational plans.

   This section requires that each school district and intermediate unit special education plan describe early intervention services, if offered, by the school district. This section also requires school districts to establish procedures for complying with the identification of children with specific learning disabilities, provides examples of the kinds of supplementary aids and services to be provided by the district, describes access to a full continuum of educational placements, requires policies and procedures designed to prevent over identification or disproportionate representation by race or ethnicity and establishes policies on behavior support services and parent counseling and training activities in accordance with Federal regulations. This section requires early intervention plans to be submitted every year instead of every 3 years as in the current regulation.

   This section also prohibits making educational placement of a student with a disability because of a lack of resources, facilities, staff or simply administrative convenience. This section places into regulation the long-standing Federal reporting requirements that require states and school entities to maintain and report information concerning students with disabilities.

§ 14.105. Personnel.

   This proposed section pertains to instructional paraprofessional staff working with students with disabilities to align their qualifications with those of paraprofessionals employed in schools that receive Federal Title I funds and those employed in prekindergarten programs. As directed in the act of July 11, 2006 (P. L. 1092, No. 114), the Board establishes qualifications for educational sign language interpreters. Professional caseload requirements are amended to reflect current practice in schools.

§ 14.106. Access to instructional materials.

   As required by Federal regulations, the Board establishes standards for instructional materials in alternative formats by adopting the National Instructional Materials Accessibility Standard as defined in section 674 of IDEA (20 U.S.C.A. § 1474(e)(3)(B)).

§ 14.107. Complaint procedure.

   This proposed section directs the Department to establish a complaint procedure consistent with Federal regulations and to disseminate notice of the procedure.

§ 14.108. Access to classrooms.

   This proposed section states that a parent is to have reasonable access to the child's classroom within the parameters of local educational agency policy.

§ 14.121. Child find.

   This section clarifies the types of awareness activities acceptable under the current provision. The regulation directs school districts to include information in its handbook and website. It also expands the annual notification requirement to include electronic media. Language is added, per Federal regulations, to require intermediate units to comply with the child find activities necessary for compliance for children with disabilities enrolled in private schools.

§ 14.122. Screening.

   This section clarifies requirements for school districts to establish systems for the initial screening of students before making referrals students for special education evaluation.

§ 14.123. Evaluation.

   This section provides that a parent who requests an evaluation of his child shall be given an evaluation request form within 5 days of the request. This section also provides that a copy of the evaluation report shall be provided to the parent at least 10 school days prior to the meeting of the IEP team unless waived in writing by the parent.

§ 14.124. Reevaluation.

   This section provides clarification of the requirement that the reevaluation report be provided to parents within 60 school days from the date of action specified. This section also provides that a copy of the reevaluation report be provided to the parent at least 10 school days prior to the meeting of the IEP team unless waived by the parent in writing. This section also provides that a copy of the reevaluation report shall be provided to the parent at least 10 school days prior to the meeting of the IEP team unless waived in writing by the parent.

§ 14.125. Criteria for the determination of specific learning disabilities.

   As required by IDEA, this section establishes criteria that school districts and intermediate units shall follow when establishing procedures for determining specific learning disabilities.

§ 14.131. IEP.

   Requirements for IEPs in this section are amended to improve the focus and functionality of IEPs based on the category or categories of each child's disability and the types of supports and accommodations that will be provided. This section maintains transition planning at 14 years of age. This section grandfathers IEPs that exist at the time the final-form rulemaking becomes effective.

§ 14.132. ESY.

   This proposed rulemaking adds requirements that students with severe disabilities be provided expeditious determinations of eligibility for extended school year services. The proposed rulemaking also requires that school entities consider eligibility for extended school year services for every student at the students' IEP meeting and that it be done so in a timely manner.

§ 14.133. Behavior support.

   Language is added to this section to further encourage the use of positive behavior support strategies and to limit the use of restraints and bans the use of face down prone restraints unless determined necessary by a physician and documented in the student's current IEP. This section requires schools to maintain records on the use of restraints. This section also provides: a process to identify the need for the use of restraints to protect the student's safety or safety of others and that parental consent should be obtained; procedures for when there is an emergency use of restraints; and a meeting of the IEP team when restraints are used outside the parameters of the behavior management practices specified in the student's IEP. This secton also requires that a review take place within 10 days whenever injuries requiring treatment by medical personnel occur resulting from self-injurious behavior or a nonaccidental act by another student.

§ 14.141. Terminology related to educational placement.

   This section is proposed to be rescinded.

§ 14.142. Caseload for special education.

   This section is proposed to be rescinded as the caseload requirements are included in proposed § 14.105 (relating to personnel).

§ 14.143. Disciplinary placements.

   This proposed rulemaking updates the references to Federal regulations.

§ 14.145. Least restrictive environment requirements.

   As required by IDEA, this proposed section provides State requirements for providing students services in the least restrictive environment.

§ 14.146. Age range restrictions.

   This proposed section establishes age range restrictions which are designed to limit the placement of students with disabilities into classroom settings when there is a significant age difference with other students.

§ 14.153. Evaluation.

   This proposed rulemaking updates references to Federal regulations and clarifies the 60-day time frame to provide the evaluation report is 60 calendar days from the date of parental consent.

§ 14.154. IEP.

   This section clarifies that the 14-day implementation requirement is 14 calendar days and grandfathers IEPs developed prior to the effective date of the final-form rulemaking.

§ 14.155. Range of services.

   This section clarifies that early intervention agencies or other licensed agencies may provide services under contract. This proposed rulemaking also restructures the regulation to improve clarity and focus regarding the services available and teacher caseloads.

§ 14.161. Prehearing conferences.

   This section is proposed to be rescinded because it is no longer necessary as it is not required by IDEA.

§ 14.162. Impartial due process hearing and expedited due process hearing.

   Proposed amendments to this section reflect changes in Federal requirements. This proposed rulemaking also adds requirements that due process hearings, appeal panel proceedings and hearing officers are to adhere to 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure). It also requires the Department to provide an annual report to the Board as to the activities of the due process hearings and appeal panel proceedings and to also report activities taken by the Department to strengthen the due process hearings and appeal panel proceedings.

§ 14.163. Resolution session.

   This proposed section incorporates Federal requirements for resolution sessions for parents of children with disabilities and permits parent advocates to attend resolution sessions.

Affected Parties

   Students who need or may need special education services and programs will be affected by this proposed rulemaking. This proposed rulemaking will also affect parents and guardians of those students by guaranteeing their participation in the process of determining services and programs that best meet the needs of their children. The Department, school districts, intermediate units and area vocational technical schools will be affected through compliance with the regulations.

Cost and Paperwork Estimates

   The proposed rulemaking will not result in significant added costs or savings to either the Department or school entities since it reflects existing Federal or State requirements, judicial rulings or settlement agreements.

   The most significant potential cost factor is that of establishing minimum requirements on the qualifications of instructional paraprofessionals who provide support to a student with disabilities under the direction of a classroom teacher in § 14.105. Instructional paraprofessionals hired before July 1, 2008, shall demonstrate knowledge in and ability to assist in instruction in reading, writing and mathematics or readiness in these disciplines through a rigorous State or local academic assessment. Instructional paraprofessionals hired after July 1, 2008, need to meet the same requirement in addition to either having an associate's degree or higher or completed 2 years of postsecondary study.

   Similar requirements have been in place under the Federal No Child Left Behind Act of 2001 (NCLB) (Pub. L. No. 107--110, 115 Stat. 1425) for instructional paraprofessionals employed in schools receiving Title I funds and under Chapter 4 for paraprofessionals working in prekindergarten programs. Since the testing program already exists to address the NCLB requirements, costs associated with the testing program are limited to staff time and test administration. With respect to the requirement that newly hired paraprofessionals have 2 or more years of postsecondary education this requirement may require school entities to conduct increased recruitment efforts to meet this requirement. The Board believes the benefits of staff with greater levels of education far outweigh any potential minimal cost for school entities to conduct expanded outreach and recruitment of staff.

   The proposed rulemaking requires that the Department report annually to the Board on the activities and results of due process hearings and appeal panel proceedings. Since the Department already collects this information, the cost of generating the annual report to the Board is minimal.

   The proposed rulemaking adds a requirement that school entities maintain data on the use of restraints. This data will be reviewed as part of existing compliance reviews conducted by the Department. The cost to implement and administer this new requirement is minimal.

   Requirements for the access to instructional materials as required by IDEA are added. The resource center is funded by the Federal government.

   Under this proposed rulemaking, educational interpreters providing services to students who are deaf or hearing impaired employed by intermediate units and school districts need to meet the qualification of scoring a 3.5 or above on the Educational Interpreter Performance Assessment and participate in at least 20 hours of continuing professional education in interpreting or transliterating services each year to continue to provide education interpreting services to students. A number of intermediate units and the Pennsylvania Training and Technical Assistance network provide training at no or relatively small cost to educational interpreters to assist them in meeting these requirements.

Effective Date

   The proposed rulemaking will become effective upon final-form 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 respecting all regulations promulgated by the Board. Therefore, no sunset date is necessary.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 19, 2007, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees on Education. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comments and Contact Person

   Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Jim Buckheit, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, jbuckheit@state.pa.us. Public comments must be received within 30 days following publication in the Pennsylvania Bulletin.

   Persons with disabilities needing an alternative means of providing public comment may make arrangements by calling Jim Buckheit at (717) 787-3787 or TTY (717) 783-8445.

JIM BUCKHEIT,   
Executive Director

Fiscal Note: 6-306. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 22.  EDUCATION

PART I.  STATE BOARD OF EDUCATION

Subpart A.  MISCELLANEOUS PROVISIONS

CHAPTER 14.  SPECIAL EDUCATION SERVICES AND PROGRAMS

GENERAL PROVISIONS

§ 14.101. Definitions.

   In addition to the definitions in §§§ 14.102 and 14.103 (relating to purposes; and terminology related to Federal regulations), 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] A school entity, approved private school, State-operated program or facility or other public (excluding charter schools and cyber charter schools under Article XVII-A of The Public School Code of 1949 (24 P. S. §§ 17-1701-A--17-1751-A) or private organization providing educational services to children with disabilities or providing early intervention services.

*      *      *      *      *

   Early intervention agency--[An intermediate unit, school district] A school entity or licensed provider which has entered into a mutually agreed upon written arrangement (MAWA) with the Department to provide early intervention services to eligible young children in accordance with the act.

   Early intervention services--As defined in the act are individualized services and supports provided to eligible young children in the least restrictive environment, including the child's home, in order to make measurable progress in preparation for school.

   Eligible young child--A child who is less than the age of beginners and at least 3 years of age and who meets the criteria in 34 CFR [300.7] 300.8 (relating to [a] child with a disability).

*      *      *      *      *

   [IST--Instructional support team.]

*      *      *      *      *

   Parent--The term as defined in 34 CFR [300.20] 300.30 (relating to parent) and also includes individuals appointed as foster parents under [42 Pa.C.S. §§ 6301--6311 (relating to the Juvenile Act)] 55 Pa. Code § 3700.4 (relating to definitions).

   School entity--A local public education provider such as a school district, area vocational-technical school or intermediate unit but excluding charter and cyber charter schools under Article XVII-A of the Public School Code of 1949 (24 P. S. §§ 17-1701-A--17-1751-A).

*      *      *      *      *

   Student with a disability--A child of school age who meets the criteria in 34 CFR [300.7 (relating to a child with a disability)] 300.8.

§ 14.102. Purposes.

   (a)  It is the intent of the Board that children with disabilities be provided with quality special education services and programs. The purposes of this chapter are to serve the following:

   (1)  To adopt Federal regulations by incorporation by reference to satisfy the statutory requirements under the Individuals with Disabilities Education Act (20 U.S.C.A. §§ 1400--[1419] 1482) and to ensure that:

*      *      *      *      *

   (ii)  Children with disabilities have access to the general curriculum, and participate in State and local assessments as established and described in Chapter 4 (relating to academic standards and assessment).

   (iii)  Children with disabilities are educated, to the maximum extent appropriate, with their nondisabled peers and are provided with supplementary aids and services.

   (iv) School entities provide access to a full continuum of placement options as appropriate and necessary according to the child's IEP.

   (v)  The rights of children with disabilities and parents of these children are protected.

   (vi)  The use of early intervening services promotes students' success in a general education environment.

   (2)  To adopt, except as expressly otherwise provided in this chapter, the requirements of 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities) as published at [64 FR 12418--12469 (March 12, 1999)] 71 FR 46540--46845 (August 14, 2006). The following sections are incorporated by reference[.]:

   (i)  [34 CFR 300.4--300.6 (defining the terms ''act''; ''assistive technology device''; and ''assistive technology service'').

   (ii)  34 CFR 300.7(a) and (c) (defining the term ''child with a disability'').

   (iii)  34 CFR 300.8--300.24 (defining the terms ''consent''; ''day''; ''business day''; ''school day''; ''educational service agency''; ''equipment''; ''evaluation''; ''free appropriate public education''; ''include''; ''individualized education program''; ''individualized education program team''; ''individualized family service plan''; ''local educational agency''; ''native language''; ''parent''; ''personally identifiable''; ''public agency''; ''qualified personnel''; and ''related services'').

   (iv)  34 CFR 300.26 (defining the term ''special education'').

   (v)  34 CFR 300.28 and 300.29 (defining the terms ''supplementary aids and services''; and ''transition services'').

   (vi)  34 CFR 300.121--300.125 (relating to free appropriate public education (FAPE); exception to FAPE for certain ages; full educational opportunity goal (FEOG); FEOG--timetable; and child find).

   (vii)  34 CFR 300.138 and 300.139 (relating to participation in assessments; and reports relating to assessments).

   (viii)  34 CFR 300.300 (relating to provision of FAPE).

   (ix)  34 CFR 300.302--300.309 (relating to residential placement; proper functioning of hearing aids; full educational opportunity goal; program options; nonacademic services; physical education; assistive technology; and extended school year services).

   (x)  34 CFR 300.311(b) and (c) (relating to FAPE requirements for students with disabilities in adult prisons).

   (xi)  34 CFR 300.313 (relating to children experiencing developmental delays).

   (xii)  34 CFR 300.320 and 300.321 (relating to initial evaluations; and reevaluations).

   (xiii)  34 CFR 300.340 (relating to definitions related to IEPs).

   (xiv)  34 CFR 300.342--300.346 (relating to when IEPs must be in effect; IEP meetings; IEP team; parent participation; and development, review and revision of IEP).

   (xv)  34 CFR 300.347 (a), (b) and (d) (relating to content of IEP).

   (xvi)  34 CFR 300.348--300.350 (relating to agency responsibilities for transition services; private school placements by public agencies; and IEPs--accountability).

   (xvii)  34 CFR 300.401 (regarding responsibility of state educational agency in connection with children with disabilities in private schools placed or referred by public agencies).

   (xviii)  34 CFR 300.403 (relating to placement of children by parents if FAPE is at issue).

   (xix)  34 CFR 300.450--300.462 (relating to children with disabilities enrolled by their parents in private schools).

   (xx)  34 CFR 300.500--300.515 (regarding certain due process procedures for parents and their children).

   (xxi)  34 CFR 300.519--300.529 (relating to discipline procedures).

   (xxii)  34 CFR 300.531--300.536 (regarding certain procedures for evaluation and determination of eligibility).

   (xxiii)  34 CFR 300.540--300.543 (relating to additional procedures for evaluating children with specific learning disabilities).

   (xxiv)  34 CFR 300.550--300.553 (relating to least restrictive environment (LRE) including general LRE requirements; continuum of alternative placements; placements; and nonacademic settings).

   (xxv)  34 CFR 300.560--300.574(a) and (b) (providing for confidentiality of information).

   (xxvi)  34 CFR 300.576 (relating to disciplinary information).]

   34 CFR 300.4--300.6 (relating to act; assistive technology device; and assistive technology service).

   (ii)  34 CFR 300.8(a) and (c) (relating to child with a disability).

   (iii)  34 CFR 300.9--300.15 (relating to consent; core academic subjects; day; business day; school day; educational service agency; elementary school; equipment; and evaluation).

   (iv)  34 CFR 300.17--300.20 (relating to free appropriate public education; highly qualified special education teachers; homeless children; and include).

   (v)  34 CFR 300.22--300.24 (relating to individualized education program; individualized education program team; and individualized family service plan).

   (vi)  34 CFR 300.27--300.30 (relating to limited English proficient; local educational agency; native language; and parent).

   (vii)  34 CFR 300.32--300.37 (relating to personally identifiable; public agency; related services; scientifically based research; secondary school; and services plan).

   (viii)  34 CFR 300.39 (relating to special education).

   (ix)  34 CFR 300.41--300.45 (relating to State educational agency; supplementary aids and services; transition services; universal design; and ward of the State).

   (x)  34 CFR 300.101 and 300.102 (relating to free appropriate public education (FAPE); and limitation--exception to FAPE for certain ages).

   (xi)  34 CFR 300.104--300.108 (relating to residential placement; assistive technology; extended school year services; nonacademic services; and physical education).

   (xii)  34 CFR 300.113 and 300.114(a)(2) (relating to routine checking of hearing aids and external components of surgically implanted medical devices; and LRE requirements).

   (xiii)  34 CFR 300.115--300.117 (relating to continuum of alternative placements; placements; and nonacademic settings).

   (xiv)  34 CFR 300.122 (relating to evaluation).

   (xv)  34 CFR 300.130--300.144, regarding students enrolled by their parents in private schools.

   (xvi)  34 CFR 300.148 (relating to placement of children by parents when FAPE is at issue).

   (xvii)  34 CFR 300.172 (relating to access to instructional materials).

   (xviii)  34 CFR 300.174 (relating to prohibition on mandatory medication).

   (xix)  34 CFR 300.207 (relating to personnel development).

   (xx)  34 CFR 300.210--300.213 (relating to purchase of instructional materials; information for SEA; public information; and records regarding migratory children with disabilities).

   (xxi)  34 CFR 300.224 (relating to requirements for establishing eligibility).

   (xxii)  34 CFR 300.226 (relating to early intervening services).

   (xxiii)  34 CFR 300.300 and 300.301 (relating to parental consent; and initial evaluations).

   (xxiv)  34 CFR 300.302--300.307(a)(1) and (2) and (b) (relating to screening for instructional purposes is not evaluation; reevaluations; evaluation procedures; additional requirements for evaluations and reevaluations; determination of eligibility; and specific learning disabilities).

   (xxv)  34 CFR 300.308--300.311 (relating to additional group members; determining the existence of a specific learning disability; observation; and specific documentation for the eligibility determination).

   (xxvi)  34 CFR 300.320--300.325 (relating to definition of individualized education program; IEP Team; parent participation; when IEPs must be in effect; development, review, and revision of IEP; and private school placement by public agencies).

   (xxvii)  34 CFR 300.327 and 300.328 (relating to educational placements; and alternative means of meeting participation).

   (xxviii)  34 CFR 300.501--300.508 (relating to opportunity to examine records; parent participation in meetings; independent education evaluation; prior notice by the public agency; content of notice; procedural safeguards notice; electronic mail; mediation; filing a due process complaint; and due process complaint).

   (xxix)  34 CFR 300.510--300.516 (relating to resolution process; impartial due process hearing; hearing rights; hearing decisions; finality of decisions, appeal; partial review; timelines and convenience of hearings and reviews; and civil action).

   (xxx)  34 CFR 300.518(a), (b) and (d) and 300.519 (relating to child's status during proceedings; and surrogate parents).

   (xxxi)  34 CFR 300.530--300.537 (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; change of placement because of disciplinary removals; and state enforcement mechanisms).

   (xxxii)  34 CFR 300.610--300.625 (relating to confidentiality; definitions; notice to parents; access rights; record of access; records on more than one child; list of types and locations of information; fees; amendment of records at parent's request; opportunity for a hearing; result of hearing; hearing procedures; consent; safeguards; destruction of information; and children's rights).

*      *      *      *      *

   (b)  To provide services and programs effectively, the Commonwealth will delegate operational responsibility for school aged students to its school districts to include the provision of child find duties prescribed by 34 CFR [300.125(a)] 300. 111 (relating to child find).

§ 14.103. Terminology related to Federal regulations.

   For purposes of interfacing with 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities), the following term applies, unless the context clearly indicates otherwise:

   Local educational agency--Where the Federal provision uses the term ''local educational agency,'' for purposes of this chapter, the term means an intermediate unit, school district, State operated program or facility or other public organization providing educational services to children with disabilities or providing early intervention services. Applicability of this term to public charter schools is found in Chapter 711 (relating to charter school services and programs for children with disabilities). In the application of 34 CFR 300.130--300.144, regarding children with disabilities enrolled by their parents in private schools, intermediate units shall be considered to be the local education agency.

§ 14.104. [Educational] Special education plans.

   (a)  Each school district shall develop and implement a special education plan aligned with the strategic plan of the school district under § 4.13 (relating to strategic plans). The special education plan shall be developed every 3 years consistent with the [3-year review cycle] phase of the strategic plan of the school district. The Secretary will prescribe the format, content and time for submission of the special education plan.

   (b)  Each school district's special education plan [shall] must specify the special education programs that operate in the district and those that are operated in the district by intermediate units, area vocational technical schools [and], other agencies and describe:

   (1)  Early intervening services under 34 CFR 300.226 (relating to early intervening services) and this chapter, if the services are provided by the school district.

   (2)  The school district procedures for complying with the State criteria for identifying children with specific learning disabilities.

   (3)  Examples of supplementary aids and services provided by the school district.

   (4)  Access to a full continuum of educational placements as required by the student's IEP.

   (5)  Policies and procedures designed to prevent the inappropriate over-identification or disproportionate representation by race and ethnicity of children with disabilities, for those school districts identified with significant disproportionality in accordance with 34 CFR 300.646(a) (relating to disproportionality).

   (6)  School district procedures on behavior support services including a description of the training provided to staff in the use of positive behavior supports, de-escalation techniques and appropriate responses to student behavior that may require immediate intervention.

   (7)  Parent training activities provided by the school district.

   (c)  Each school district's special education plan [shall] must include procedures for the education of all students with [a disability] disabilities who are residents of the district including those receiving special education in approved private schools and students with [a disability] disabilities who are nonresidents placed in private homes or institutions in the school district under sections 1305, 1306 and 1306.2 of the Public School Code of 1949 (24 P. S. §§ 13-1305, 13-1306 and 13-1306.2).

   (d)  Each intermediate unit shall prepare annually and submit to the Secretary a special education plan specifying the special education services and programs to be operated by the intermediate unit, including equitable services provided consistent with 34 CFR 300.130--300.144 and subsection (b)(2)--(4), (6) and (7). The Secretary will prescribe the format, content and time for submission of the intermediate units' plans.

   (e)  Each early intervention agency shall develop and submit to the Department an early intervention special education plan every [3 years] year.

   (f)  The Department will approve plans in accordance with the following criteria:

*      *      *      *      *

   (3)  Placement of students with disabilities in settings other than regular education settings may not be based on lack of resources, facilities, staff or for administrative convenience.

   (4)  The plan meets the specifications defined in this chapter and the format, content and time for submission of the agency plans prescribed by the Secretary.

*      *      *      *      *

   (i)  Each school entity shall maintain information concerning students with disabilities, the services provided, performance and discipline data, as specified by the Secretary, and report information in a form and at times as required by the Secretary.

§ 14.105. Personnel.

   (a)  An instructional paraprofessional is a school employee who works under the direction of a certificated staff member to support and assist in providing instructional programs and services to children with disabilities or eligible young children. Instructional paraprofessional personnel hired by a school entity on or after July 1, 2008, shall meet the qualifications outlined in paragraph (1) or (2) and paragraph (3) or (4). Instructional paraprofessionals who were hired in that role by a school entity before July 1, 2008, shall meet the qualifications outlined in paragraph (3) or (4) by July 1, 2010.

   (1)  Have completed at least 2 years of postsecondary study.

   (2)  Possess an associate degree or higher.

   (3)  Meet a rigorous standard of quality as demonstrated through a formal State or local academic assessment of knowledge in and ability to assist in instruction in reading, writing and mathematics.

   (4)  Meet a rigorous standard of quality as demonstrated through a formal State or local academic assessment of knowledge of, and the ability to assist in instruction, reading readiness, writing readiness and mathematics readiness, as appropriate.

   (b)  Nothing in subsection (a) should be construed to supersede the terms of a collective bargaining agreement in effect on _____(Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.).

   (c)  To serve as an educational interpreter, an individual shall meet the qualifications in paragraph (1) or (2) and paragraph (3):

   (1)  Achieve and provide evidence of a score of 3.5 on the Educational Interpreter Performance Assessment (EIPA) for the appropriate grade level to which the person has been assigned.

   (2)  Be a qualified educational interpreter or qualified transliterator under the Sign Language Interpreter and Transliterator Registration Act (63 P. S. §§ 1725.1--1725.12) and its implementing regulations.

   (3)  Provide evidence of a minimum of 20 hours of staff development activities relating to interpreting or transliterating services annually.

   (d)  The Board, in consultation with Department, will review the EIPA score requirement every 2 years.

   (e)  The following words and terms, when used in this subsection, have the following meanings, unless the context clearly indicates otherwise:

   Case management--Development and management of an individual IEP, and if required in the IEP, monitoring and consultation with regular education or special education teachers, or both.

Replacement services--

   (i)  Direct services to an individual student with disabilities or small group of those students, that replace general education instruction within the regular education curriculum or replace the general curriculum with alternate curriculum.

   (ii)  The term includes teaching to the State-approved alternate standards.

   (A)  The following chart presents the maximum caseload allowed on a single teacher's roll for each school district:

Level I Services50 students
Level I services may include one or any combination of the following services: Case Management; Supplemental Services; and Replacement Services up to 20% of the instructional day
Level II Services25 students
Level II services must include Replacement Services 21% to 50% of the instructional day and may also include Case Management and Supplemental Services
Level III Services15 students
Level III services must include Replacement Services 51% to 75% of the instructional day and may also include Case Management and Supplemental Services
Level IV Services8 students
Level IV services must include Replacement Services more than 75% of the instructional day and may also include Case Management and Supplemental Services
Speech and Language Support 65 students

   (B)  If a teacher provides more than one level of support to different students, the maximum number for the purpose of caseload will be prorated based upon the percentage of time providing that level of service and the maximum number of students allowed.

   (C)  A school district may request approval for a caseload chart which varies from that in clause (A) as part of its special education plan consistent with § 14.104 (relating to special education plans). The caseload and supporting documents submitted must:

   (I)  Ensure the ability of assigned staff to provide the services required in each student's IEP.

   (II)  Apply to special education classes operated in the school district.

   (III)  Provide a justification for why the chart deviates from the caseload chart in clause (E).

   (IV)  Describe the opportunities for parents, teachers and other interested parties to review and comment on the chart prior to its submission. The district shall provide and include a copy of the notice to the public indicating the district intends to request a waiver of caseload regulations and a description of how parents, teachers and other interested parties were provided opportunities to give comment on the waiver request.

   (D)  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 must follow the caseload chart under subsection (e).

   (E)  Caseloads are not applicable to approved private schools or to chartered schools for the deaf and blind.

   (F)  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:

   (I)  Graduation rates of students with a disability.

   (II)  Drop-out rates of students with a disability.

   (III)  Postsecondary transition of students with a disability.

   (IV)  Rate of grade level retentions.

   (V)  Statewide and district-wide assessment results as prescribed by §§ 4.51 and 4.52 (relating to State assessment system; and local assessment system).

Supplemental services--

   (i)  Direct services to an individual student with disabilities or small group of those students, that supplement the general education curriculum.

   (ii)  For example, the term includes co-teaching, preteaching, reteaching, modeling, guided practice, and the like.

§ 14.106. Access to instructional materials.

   (a)  The Board adopts the National Instructional Materials Accessibility Standard (NIMAS) as defined in section 674(e)(3)(B) of the Education of Individuals with Disabilities Education Act (20 U.S.C.A. § 1474(e)(3)(B)) and set forth in 71 FR 41084 (July 19, 2006) for the purpose of providing print instructional materials in alternate accessible formats or specialized formats to blind persons or other persons with print disabilities in a timely manner. To insure the timely provision of high quality, accessible instructional materials to children who are blind or other persons with print disabilities, agencies shall adopt the NIMAS. The NIMAS refers to a standard for source files of print instructional materials created by publishers that may be converted into accessible instructional materials.

   (b)  Agencies shall provide print instructional materials in specialized, accessible formats (that is, Braille, audio, digital, large-print, and the like) to children who are blind or other persons with print disabilities, as defined in the act to provide books for adult blind approved March 3, 1931 (see 2 U.S.C.A. § 135a (regarding books and sound-reproduction records for blind and other physically handicapped residents; annual appropriations; and purchases)), in a timely manner.

   (c)  Agencies act in a timely manner in providing instructional materials under subsection (a) if they take all reasonable steps to ensure that children who are blind or other persons with print disabilities have access to their accessible format instructional materials at the same time that students without disabilities have access to instructional materials. Agencies may not withhold instructional materials from other students until instructional materials in accessible formats are available.

   (d)  Receipt of a portion of the instructional materials in alternate accessible or specialized format will be considered receipt in a timely manner if the material received covers the chapters that are currently being taught in the student's class.

   (e)  If a child who is blind or other person with a print disability enrolls in school after the start of the school year, an agency shall take all reasonable steps to ensure that the student has access to accessible format instructional materials within 10 school days from the time it is determined that the child requires printed instructional materials in an alternate accessible or specialized format.

   (f)  The Department or agencies may coordinate with the National Instructional Materials Access Center (NIMAC) to facilitate the production of and delivery of accessible materials to children who are blind or other persons with print disabilities. The NIMAC refers to the central repository, established under section 674(e) of the Education of Individuals with Disabilities Education Act, which is responsible for processing, storing and distributing NIMAS files of textbooks and core instructional materials.

   (g)  Agencies coordinating with NIMAC shall require textbook publishers to deliver the contents of print instructional materials to the NIMAC in NIMAS format files on or before delivery of the print instructional materials to the agency. Agencies that choose not to coordinate with NIMAC may require that publishers deliver the contents of print instructional materials to the NIMAC in NIMAS format files on or before delivery of the print instructional materials to the agency.

§ 14.107. Complaint procedure.

   The Department will establish a complaint procedure consistent with 34 CFR 300.151--300.153 (relating to adoption of State complaint procedures; minimum State complaint procedures; and filing a complaint) and disseminate notice of that procedure.

§ 14.108. Access to classrooms.

   Parents shall have reasonable access to their child's classrooms, within the parameters of local educational agency policy.

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