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RULES AND REGULATIONS

Title 22--EDUCATION

STATE BOARD OF EDUCATION

[ 22 PA. CODE CH. 4 ]

Academic Standards and Assessment

[38 Pa.B. 872]
[Saturday, February 16, 2008]

   The State Board of Education (Board) amends Chapter 4 (relating to academic standards and assessment). Notice of proposed rulemaking was published at 35 Pa.B. 6107 (November 5, 2005) with an invitation to submit written comments.

   Chapter 4 sets forth requirements for State academic standards, instruction, assessment, strategic planning and high school graduation requirements in public schools. The overarching purpose of the final-form rulemaking is to align the regulations with State and Federal statutory and regulatory requirements, delete transitional provisions that are no longer needed and to clarify and refine existing Board policy on select issues.

Statutory Authority

   The Board takes this action under section 2603-B of the Public School Code of 1949 (code) (24 P. S. § 26-2603-B) and other sections of the code.

Background

   Chapter 4 sets forth requirements for State academic standards, State and local assessment systems, strategic planning, world language instruction, high school graduation requirements, HIV/AIDS and other life-threatening and communicable diseases, vocational-technical education and school profiles. The final-form rulemaking updates the regulations to align State assessment policies with those contained in § 403.3 (relating to single accountability system), removes transition provisions designed to smooth changes in State policy under the previous Chapter 5 regulations that were sunset when Chapter 4 was promulgated in January 1999, and clarifies and refines Board policy in a number of other areas.

Summary of Public Comments and Responses to Proposed Rulemaking

   The proposed rulemaking was published at 35 Pa.B. 6107. The proposed rulemaking was also available on the Department's website and notice provided to the Board's stakeholder e-mail distribution list. The Board accepted formal written comments during a 30-day public comment period that began upon publication of the proposed rulemaking.

   The Board received comments from the House Education Committee; Independent Regulatory Review Commission (IRRC); Education Law Center; Upper Adams School District; Central Columbia School District; Gettysburg Area School District; Littlestown Area School District; Fairfield Area School District; Colonial Intermediate Unit 20; Teresa A. Prato; a joint letter from the Chief School Administrators in Chester County; Lawrence E. Martin, Assistant Executive Director, Bucks County Intermediate Unit; Pennsylvania Association of School Administrators (PASA); Pennsylvania School Boards Association (PSBA); Senator Raphael Musto; Tom Viviano; Karen L. Hoffman; and a joint letter from State education organizations including: PSBA, PASA, Pennsylvania State Education Association, American Federation of Teachers-Pennsylvania and Pennsylvania Association of Vocational Administrators. In addition, Harbor Creek School District provided comments that addressed several State education policy issues including a few regarding the proposed Chapter 4 regulations.

   Following is a summary of the comments and the Board's response to the comments.

§ 4.3. Definitions.

   Comment: IRRC and PASA shared concerns about the definitions of ''prekindergarten'' and ''school entity.'' They noted that when taken together the two definitions will permit cyber charter schools to operate prekindergarten programs. They stated cyber school programs would not be appropriate for young children. IRRC added that the definition of ''prekindergarten'' includes substantive provisions that are not enforceable. IRRC also expressed concern that, in the definition of ''school entity,'' the phrase ''that this chapter applies to school entities only to the extent provided by law'' is substantive and unnecessary. IRRC also stated that the definition of ''world language'' appears relevant only to § 4.25 (relating to languages) and suggested it could be moved to that section. Also, the phrase ''in this Commonwealth'' is not needed. The Education Law Center suggested that the term ''school entity'' be used uniformly throughout the regulations.

   Response: The Board deleted the substantive provisions from the definitions contained in § 4.3 (relating to definitions). Since November 2005, when the proposed Chapter 4 regulations were published, the Board in December 2006 promulgated final-form prekindergarten regulations, which included a new definition of the term ''prekinder-garten.'' Therefore, the definition of the term ''prekinder- garten'' contained in the proposed regulations is withdrawn. In response to the Education Law Center, the terms ''school entity,'' ''school district'' and ''area vocational technical school'' have different meanings and are used when appropriate in this final-form rulemaking. Therefore, the term ''school entity'' is not always appropriate as suggested in the comments by the Education Law Center. As suggested by IRRC, the definition of ''world language'' is revised and has been moved to § 4.25.

§ 4.4. General policies.

   Comment: PSBA suggested that it is unfair to schools that the Department of Education (Department) counts students who are given a religious exemption from taking the Pennsylvania System of School Assessment (PSSA) under § 4.4(d) (relating to general policies) against a school's performance when it determines adequate yearly progress. PSBA does not oppose the religious exemption but urges the Board to request the Department to seek a change in policy from the Federal Department of Education.

   Response: The Board found that fewer than 500 of the nearly 1 million students who are required to take the PSSA each year are given exemptions under this provision. This is not a significant issue. However, the Board will urge the Department to explore ways to address this matter with the Federal Department of Education.

§ 4.13. Strategic plans.

   Comment: IRRC suggested the regulation should provide guidance as to when and where strategic plans must be filed. IRRC also expressed concern about the provision that makes the strategic plan an extension of the regulation and stated this provision is not clear and is unnecessary. IRRC also stated the requirement that the plan can only be changed by the strategic planning committee conflicts with the descriptions in existing subsections (d) and (e).

   Comment: The Education Law Center suggested adding ''and shall describe how students with disabilities shall be admitted to and supported in its programs'' to subsection (b).

   Comment: The Harbor Creek School District (District) expressed concerns about the strategic planning committee being required to revise the strategic plan. The District believed this provision challenges the authority of the locally elected school board and the process by which members of the planning committee are selected. The District supported the inclusion of technical school and other certificates.

   Comment: PASA expressed concerns the proposed regulation makes the plan more operational than strategic. It also believed the new requirements are unrealistic and burdensome. They require the plan to report in considerable detail what the school entity is doing to educate students rather than on what the entity anticipates doing. PASA also shared concerns about the proposed language that would make the strategic plan an extension of the regulation. PASA also expressed concerns about the requirement that the strategic planning committee approve all amendments to the plan. It also opposes the provision that holds commissioned officers accountable for implementation of the strategic plan.

   Comment: PSBA believed the provision that requires strategic plans to be updated as necessary each year is redundant and should be deleted. PSBA also expressed concerns about the proposed regulation that would make the strategic plan an extension of the regulation and the strategic planning committee must approve all changes to the plan. They expressed concerns about the 16 elements required in a strategic plan, as it believes many of the provisions are similar and can be combined. PSBA also has concerns regarding the clarity of the requirement that school entities coordinate with other programs and about the membership requirements for strategic planning committees.

   Response: The Board has withdrawn its proposed changes to § 4.13 and will consider updating the strategic planning requirements in the future. This includes issues raised by the Education Law Center. The Board did remove the transition provision contained in § 4.83 regarding the submission and effective dates of strategic plans. To fill the gap established by this deletion, the Board has inserted new language in § 4.13(a) and (b) that requires the Department to notify each school entity by letter at least 1 year in advance of the due date for submission of the plan to the Department. Revisions were also made to subsections (c) and (e) to clarify which school entities must post the strategic plan on the entity web site at least 28 days in advance of the board meeting for public review.

§ 4.21. Elementary education: primary and intermediate levels.

   Comment: IRRC questioned provisions in § 4.13(e)(6) and (8), regarding basic movement skills and concepts and principles and strategies of movement. Also, they questioned how they differ?

   Response: Both terms are used in the academic standards for Health, Safety and Physical Fitness, which was promulgated through regulation as Appendix D to Chapter 4 in January 2003. The term ''principles and strategies of movement'' is contained in the title of standard 10.5. The term ''basic movement skills and concepts'' is used in standard 10.5.3.A. and 10.5.6.A. The Board believes consistent use of these terms of art in the standards and regulations is necessary and appropriate.

§ 4.24. High school graduation requirements.

   Comment: PSBA supported the existing language but suggested deleting the transition provisions that are past their effective date.

   Response: The Board deleted the transition provisions.

§ 4.25. Languages.

   Comment: The House Education Committee recommended the Board consider adding a requirement that would require demonstration of proficiency in a world language by all students. The Committee also suggested the Board consider whether students with disabilities should be required to take a language. Senator Musto questioned whether the requirement that schools offer instruction in at least two world languages, while not requiring that students take world language courses, would create impossible personnel decisions for school districts, as they must have teachers available to teach courses for which students may not enroll. Senator Musto also questioned whether data proves there is a shortage of world language teachers and questions how the Board will resolve the conflict with the Department's Project 720 initiative, which encourages world language instruction. Finally, Senator Musto questioned how the Board's position can be rectified with the Administration's insistence this Commonwealth produce students and workers prepared to join the global economy. PSBA expressed support of the Board position that instruction in two languages be provided with no mandate for students to take the courses.

   Response: Since 1966, Board regulations have required school districts to offer world language instruction in at least two languages, with one offered in a 4-year and the other a 2-year sequence. Chapter 4, as currently constructed, would make proficiency in a world language mandatory for every student once the Board issues academic standards for world languages. The Board has reviewed and debated this issue for nearly a decade. The Board held a forum on world languages in 2002 to fully explore the advantages and challenges that the mandate would present. The Board highly values the study of world languages and strongly encourages schools to offer a comprehensive program of world language study and students to enroll in world language study. Nearly 1/2 of this Commonwealth's secondary students are enrolled in world language instruction. Nearly 76% of college bound students take 2 or more years of world language instruction.

   However, two serious barriers exist over which the Board has no authority. They are the issues of cost and supply of qualified world language teachers. The Board calculated that a world language mandate would require school entities to hire at least an additional 2,700 world language teachers at an additional annual cost to taxpayers of at least $114.5 million. However, even if funding were available a ready supply of highly qualified and certified teachers is not. On average, approximately 300 world language teachers are certified each year by the Department. This includes graduates of Pennsylvania's teacher preparation programs, teachers transferring from out-of-State and through the issuance of intern certificates. World language teachers must be ''highly qualified'' under the Federal No Child Left Behind Act of 2001 meaning they must have a bachelor's degree in the language they teach or pass a rigorous State exam. Given the large number of students already participating in world language instruction together with the challenges of cost and limited teacher supply necessary to provide instruction if mandated, the Board has determined it best to maintain the current requirements with the added provision that the Department establish standards for world language instruction.

   Comment: IRRC suggested the regulation should include a cross-reference to the world language standards, or identify where the world language standards issued by the Department can be found.

   Response: The Board added language that requires the Department to post the standards for world languages on the Department's web site.

§ 4.29. HIV/AIDS and other life-threatening and communicable diseases.

   Comment: IRRC stated the Board's recommended use by school entities of guidelines from the Centers for Disease Control is not enforceable. IRRC suggested the Board should either make this a requirement or delete it.

   Response: The Board has withdrawn its proposed revisions to this section. The current regulation will remain in force while the Board continues to review this issue.

§ 4.31. Vocational-technical education.

   Comment: Education Law Center--In subsection (a), the Education Law Center suggested adding language that students with disabilities are entitled to services and accommodations necessary to help them succeed. It also suggested adding that accommodations should be provided to students needing them when taking occupational competency assessments. The Education Law Center also suggested adding language that would prohibit vocational programs from using industry skill standards as the basis for excluding a student with a disability from enrollment on the grounds the student cannot meet the standards if the student can benefit from enrollment in the program with reasonable supports.

   Response: The Board revised § 4.31(a) (relating to vocational-technical education) to address accommodation issues raised by the Education Law Center with regard to that section. However, the Board does not believe it is appropriate to enroll students in vocational programs in which a student, even with appropriate support, will not be able to meet industry standards or qualify for industry certification in those occupations when the certification is a vital consideration for employment. Enrolling students who do not have the ability to perform the essential functions necessary to obtain National certification, even with reasonable accommodation, is inappropriate and unfair to the students, providing them with false expectations.

4.33. Advisory committees.

   Comment: Education Law Center--The Education Law Center recommended that subsection (c) include language that at least one member of each occupational advisory committee include a special education director from one of the school entities served by the AVTS. It also suggested adding a requirement that each committee address how the occupational program can be adapted to meet the needs of students with disabilities.

   Response: The Board believes it should not specify the individual membership requirements of the occupational advisory committees as suggested. In addition, even if a special education director were added to the committee, that person would not necessarily have the knowledge and skills needed to determine how best to adapt the program to meet the needs of students with disabilities.

4.51. State assessment system.

   Comment: PSBA recommended the specified grade levels be revised to reflect actual current practice.

   Comment: IRRC referred to a commentator who suggested the proposed grade levels specified in subsections (b) and (d) are inconsistent with actual practice. IRRC recommended the Board review the grade levels and update them as necessary.

   Response: The Board updated the grade levels to reflect actual practice.

4.52. Local assessment system.

   The Board received more comments regarding this section than any other. Based on these comments, it is clear to the Board that many schools are ignoring the current regulation regarding State high school graduation requirements and are strongly opposed to its enforcement. The current regulation contained in § 4.24 (relating to high school graduation requirements) requires all students, with the exception of certain students with disabilities, as a condition of graduating, to demonstrate proficiency in reading, writing and mathematics on either the PSSA or local assessments aligned with State academic standards at the proficient level established for the PSSA. This means the level of rigor used on local assessments must be equivalent to that established for the PSSA. Under this policy, if a district chooses to use its local assessment, the burden is already on the local school district to align its assessment with the State standards and PSSA proficiency levels. The Board believes that far too many students continue to be awarded high school diplomas without possessing essential reading, writing and mathematics skills necessary for entry level employment or postsecondary enrollment without remediation. This practice shortchanges students and the economic future of this Commonwealth.

   Following the summary of comments as follows, the Board provides a statement regarding the proposed regulation and State high school graduation requirements.

   Comments:

   House Education Committee--The Committee posed a number of questions regarding: allowing the Secretary to require proficiency on the PSSA as a graduation requirement when there is a discrepancy between graduation rates and proficiency rates on the PSSA; the validity of the correlation between local assessments and State assessments, as local assessments use a variety of measures in contrast to a single test in three subject areas; the discrepancy threshold to be used by the Secretary to initiate action; the capacity of the Department to provide assistance to school districts to make their local assessments comparable to the PSSA; and, a threshold as to when a district would be permitted to return to use of its local assessment. The Committee also expresses concerns about the intrusion on Pennsylvania's historic principle of local board control over graduation requirements and concern over the fiscal impact and capacity of the Department to fulfill its obligations under the regulation. The Committee suggested that the PSSA might not be the best means of determining proficiency of State standards.

   IRRC claimed the description in the Preamble considerably understates the change in requirements. IRRC stated that it finds the proposed regulation to add significant changes in requirements and enforcement provisions to local assessment systems and claimed the proposed rulemaking does not contain sufficient information to fully evaluate its requirements and impact. IRRC claimed the regulation imposes new requirements for school entities to monitor, analyze and report on the progress of their students. IRRC questioned whether the regulation would make the PSSA essentially a high school exit exam, whether the PSSA is a valid indicator of proficiency, particularly in special education and English language learner programs. IRRC questioned how the Board will evaluate the PSSA and why is it a valid standard. IRRC also raised several issues regarding clarity or the proposed regulation.

   Joint Letter from State Education Groups--The groups opposed the proposed changes because they claim the language is vague, subjective, punitive and counterproductive. They claimed this proposal is one step away from establishing the PSSA as Pennsylvania's mandatory high school exit exam. The groups hold that graduation requirements should remain a local determination; the alignment between local assessments and the academic standards should be the key issue, rather than alignment of local assessments with the PSSA; the sole use of PSSA provides a single snapshot of a student's knowledge of the standards, and the use of a variety of assessments provides a holistic approach that more accurately measures student's abilities. The groups suggested a conflict with § 4.4 that permits a parent to have his child excused from taking the PSSA and questions how the comparability between the PSSA and local assessments will be determined, particularly if multiple assessments are used. The groups questioned what percentage of students will be used to determine when a significant disparity exists; questioned why it is assumed that the PSSA is the only correct way to measure achievement of the standards; expressed concern that significant numbers of African-American students with disabilities and English language learners would not be able to graduate; and stated concerns about the timelines for reporting by school entities and a lack of an appeals process. The groups questioned why there is no provision for the Department to provide technical assistance to school entities to develop local assessments that meet State requirements; and they share concerns about the withholding of State funds by the Secretary of Education.

   Central Columbia School District--supported the proposed regulations, with the exception of changes in § 4.52(c) (relating to local assessment system), and believed that the PSSA, as a one-time snapshot assessment, is less valid than local assessments given over the course of a student's high school enrollment.

   Harbor Creek School District--The District challenged the premise of the regulation that students who do not pass the PSSA can be attributed to a softer local assessment. The District recommended removing the penalty, and suggests the Department should use an auditing process that would determine whether the local assessments are aligned with the PSSA.

   Gettysburg Area School District, Littlestown Area School District, Conewago Valley School District, Fairfield Area School District and Upper Adams School District--The five school districts submitted identical letters. The districts stated the use of single assessments to determine success of the entire secondary education is a disservice to students who have varying needs including English language learners and students with disabilities. It added the use of a single assessment is contrary to treating students as individuals and discourages students from completing school. The districts suggested allowing school districts to continue to control how best to educate all students in ways that meets their needs and utilize the high quality methods of certifying that students have met the requirements for graduation established by the local school board.

   Colonial Intermediate Unit 20 (IU)--The IU claimed that the NCLB requirements make the proposed regulations unnecessary, as NCLB imposes serious sanctions for not meeting adequate yearly progress targets. It argued that use of the PSSA as a graduation test ignores the additional year of instruction and knowledge and skills gained in 12th grade. It claimed that the proposal is contrary to assessment requirements in Chapter 4 that provide for multiple assessment strategies. The IU raised concerned about the impact on students with disabilities and English language learners and about the fairness on schools with high transitory populations. It also commented that the proposed regulation places a burden on school districts to prove that local assessments are comparable to the PSSA, which presents an unfunded mandate on school districts.

   Teresa A. Prato, teacher at Bucks County Technical High School--Teresa Prato raised concerns about the validity of the PSSA, its use as a graduation test and limitations as a single assessment tool.

   Chief School Administrators, Chester County--The Chester County administrators shared concerns about the validity of the PSSA as a graduation test; suggested that multiple and varied measures should be used to assess student learning; a need for timely feedback and the length of time needed to score and report PSSA results is problematic; and, suggested that standardized tests historically discriminate against poor and minority children. The school administrators also requested the Department to provide training, technical assistance and support to develop valid, reliable items for local assessments.

   Lawrence E. Martin, Bucks County Intermediate Unit--Lawrence Martin claimed that the PSSA was designed to compare schools, not to provide estimates of proficiency for individual students. He also claimed that the PSSA is more like a norm referenced, rather than criterion referenced assessment. He believed that the proposal dishonors the hard work being done in Pennsylvania's high schools and claimed that the policy would result in unintended consequences, including increased dropout rates, teaching to the test and reduction in use of authentic assessment.

   PASA shared its concern that the regulation substantially changes the purpose of the PSSA and the consequences of performance on it from a high-stakes accountability system for schools to a high stakes test for individual students. It suggested that the PSSA was not validated as a high school exit exam and the cut scores were not set for this purpose. It also shares concerns that the PSSA is not a fair or accurate measure of some students' knowledge and skills, particularly those who have disabilities and English language learners. PASA believed that the regulation would push school entities to use PSSA proficiency as the only measure of proficiency. It believed that the regulation would provide the Secretary with too much unguided discretion and that it does not address how a school entity found out of compliance can return to or remain in compliance.

   PSBA--As reflected in the joint letter submitted with other State education organizations, PSBA urged the Board to delete the proposed revisions to paragraphs (2), (3) and (4).

   Senator Musto--The legislator expressed concerns about whether data supports the use of the PSSA as an evaluation tool and predictor of student success which would justify its used for all purposes assigned to it to the exclusion of local assessment tools.

   Tom Viviano--Expressed concerns about the impact of the proposed regulation on special needs students. Tom Viviano suggested it would be more appropriate to measure the rate of improvement combined with industry related exams taken at completion of technical education. Tom Viviano expressed a fear that students who otherwise would not drop out will now be put in a difficult position given the proposed requirements.

   Karen L. Hoffman--Shared concerns about proposed use of proficiency on the PSSA as a requirement for high school graduation.

   Response: The Board has a long history of establishing State requirements for high school graduation. For example, in 1963 the Board required students to successfully complete 13 credit units of study in grades 10--12 to graduate. Of the 13 credits, at least 3 had to be in English, 1 in mathematics, 1 in science, 2 in social studies and 1 in health and physical education. One credit or course equaled a minimum of 120 hours of classroom instruction. Over the next 3 decades, the Board raised these requirements to the level of requiring students to complete 21 credits in grades 9--12 effective with the class of 1989.

   In 1993, the Board eliminated academic credits as a State requirement for high school graduation. It replaced completion of specified course work or seat time with 56 student learning outcomes. The student learning outcomes described what students were to know and be able to do and eliminated seat time as a proxy measure of student learning. The regulations charged school districts with developing assessment systems that would determine whether students met the student learning outcomes. The regulations also established a State assessment system designed to assess the performance of each public school.

   In 1999, the Board continued its movement away from using seat time as a proxy measurement of student achievement by issuing Chapter 4, the regulations now in effect. Chapter 4 replaced the 56 student learning outcomes with 13 sets of State academic standards, which provide a much clearer and detailed description of what students were expected to know and be able to do. Another significant revision contained in Chapter 4 involved the PSSA. Chapter 4 directed the PSSA to be aligned with the State academic standards and to be redesigned so it measured both school and individual student achievement of the State academic standards.

   Chapter 4 also made significant changes to the State high school graduation requirements. Section 4.24 requires school districts to include in their graduation policies:

   *  Course completion and grades.

   *  Completion of a culminating project.

   *  Results of local assessments aligned with the academic standards.

   Also, beginning in 2002-03, the Board required students to demonstrate proficiency in reading, writing and mathematics on either the PSSA or local assessment aligned with State academic standards and State assessment at the proficient level or above to graduate.

   The Board believes its intent was clear in that, beginning in 2002-03, students shall demonstrate proficiency in reading, writing and math based on the State academic standards and at the proficiency levels established for the PSSA. After several years' administration of the PSSA, analysis of data, visits to schools and discussions with school board members, school administrators, teachers, parents and students, it is clear that many school districts are ignoring the requirement that the local assessments be aligned with State standards and the proficiency levels be aligned to that of the PSSA. The Board, through the proposed changes to Chapter 4, attempted to clarify the existing policy regarding the alignment of local assessments with State standards and proficiency levels.

   Many comments received by the Board raised questions about the validity of the PSSA. In 2004, the Board released the results of an independent validity study that demonstrated the PSSA to be a fair, reliable, unbiased and rigorous assessment that produces comparable results to Nationally administered assessments, including the Scholastic Aptitude Test, Metropolitan Achievement Test, CTB Terra Nova, Stanford Achievement Test, New Standards Reference Exam, California Achievement Test and Northwest Evaluation Association assessment. The Board also conducted a supplemental study that compared the PSSA and the freshman college placement exams from three large Pennsylvania postsecondary institutions. Again the PSSA proved itself against the three first-year college placement tests. The results show the PSSA to be as good a predictor of first year college performance as the Scholastic Aptitude Test and the three university placement tests. These reports are available on the Board web pages on the Department web site (www. pde.state.pa.us).

   In September 2005, Governor Rendell appointed members to a Commission on College and Career Success. With the establishment of the Commission, the Board deferred further action on its proposed Chapter 4 regulations pending completion of the work by the Commission. The Commission was charged to:

   *  Define ''college and career ready'' in mathematics, English and science.

   *  Examine and make specific recommendations for better alignment of academic standards and assessments across the secondary and postsecondary educational sectors as well as industry in this Commonwealth.

   *  Encourage local school districts to adopt a core high school curriculum for all this Commonwealth's students.

   *  Present to the Governor a legislative and regulatory package that would address the needs outlined in their findings.

   *  Investigate policies and programs that ensure a higher number of prepared students enter and remain in our colleges and universities.

   The Commission provided its report to the Governor in December 2006. Like the Board, the Commission expressed concerns about the performance of high schools. To quote from the Commission's report:

[I]n Pennsylvania, as in other states, increased standards have not yielded consistent results at the high school level. Student achievement has clearly improved at the elementary and middle-school level; but these improvements have not translated into across-the-board increases in high school performance. Approximately one quarter of our students do not graduate from high school on time; and of those that do, less than half enroll in college upon graduation. Only 37% make it to their sophomore year and less than one-third graduate from college on time. In short, Pennsylvania's educational pipeline is leaking with no low skill jobs paying reasonable wage to catch those students who do not make it through.

   Given the findings and recommendations of the Commission, the Board has decided to withdraw its proposed changes to § 4.52(c).

   The Board will address high school graduation requirements in a separate regulatory package to be developed and submitted to public review and comment in the near future.

4.61. School profiles.

   Comment: IRRC referred to the vague reference to Federal or State law and suggested that citations to the applicable laws should be added.

   Response: A reference to the State statutory requirement is added. The State statute incorporates the Federal requirements.

General comments:

   Comment: PSBA raised concerns about inconsistencies between this draft and proposed early childhood regulations, including the definitions of prekindergarten, elementary education programs including prekindergarten, strategic planning requirements for parent and community involvement and composition of strategic planning committee.

   Response: The prekindergarten regulations were promulgated as final-form regulations in December 2006. Wherever inconsistencies between the two sets of proposed regulations exist, the Board is retaining the language used in the prekindergarten regulations.

Fiscal Impact and Paperwork Requirements

   Because this final-form rulemaking largely reflects changes in Federal and State statutes and regulations and current policies and practice, costs associated with compliance with the final-form rulemaking should be negligible. The final-form rulemaking is aligned with current statutory provisions and Department practice.

   The elimination of the mandate that every student be proficient in the yet to be promulgated world language academic standards will save local taxpayers more than $114 million in staffing costs. It will also save the additional costs of recruitment, training and support of new teachers and for additional classroom space, instructional materials, language laboratory expenses and associated instructional costs. School entities will need to align world language instruction with Department issued world language standards. This can be done as part of their regular process of periodic curriculum review so there should not be any additional costs associated with implementation of this requirement.

Effective Date

   This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.

Sunset Date

   In accordance with its policy and practice, the Board will review the effectiveness of Chapter 4 after 4 years. Therefore, no sunset date is necessary.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 26, 2005, the Board submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 6107, to IRRC and the Chairpersons of the House and Senate Committees on Education for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on January 9, 2008, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on January 10, 2008, and approved the final-form rulemaking.

Contact Person

   The official responsible for information on this final-form rulemaking is Jim Buckheit, Executive Director, 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 this final-form rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered.

   (3)  The final-form rulemaking is necessary and appropriate for the administration of the code.

Order

   The Board, acting under authorizing statute, orders that:

   (a)  The regulations of the Board, 22 Pa. Code Chapter 4, are amended by amending §§ 4.3, 4.4, 4.11--4.13, 4.21--4.25, 4.27, 4.29, 4.31, 4.33, 4.51, 4.52, 4.61, 4.81 and 4.82 and by deleting § 4.83 to read as set forth in Annex A.

   (b)  The Executive Director will submit this order and Annex A 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 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-form publication in the Pennsylvania Bulletin.

JIM BUCKHEIT,   
Executive Director

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 562 (January 26, 2008).)

   Fiscal Note: 6-295 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 22. EDUCATION

PART I. STATE BOARD OF EDUCATION

Subchapter A. MISCELLANEOUS PROVISIONS

CHAPTER 4. ACADEMIC STANDARDS AND ASSESSMENT

GENERAL PROVISIONS

§ 4.3. Definitions.

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

   AVTS--Area vocational-technical school--A public school that provides vocational-technical education to secondary school students, out-of-school youth and adults in a geographical area comprised and operated by one or more school districts and established under sections 1840--1853 of the School Code (24 P. S. §§ 18-1840--18-1853).

   Academic standard--What a student should know and be able to do at a specified grade level.

   Assessment--A valid and reliable measurement of student performance on a set of academic standards in a subject area that captures student understanding of the set as a whole and the central concepts, knowledge and skills of each content area.

   Apprenticeship program--A competency-based program that coordinates and integrates classroom instruction with a structured work-based employment experience designed for students.

   Board--The State Board of Education established by sections 2601-B--2606-B of the School Code (24 P. S. §§ 26-2601-B--26-2606-B).

   Cooperative vocational-technical education--A planned method of instruction developed through a signed cooperative arrangement among school representatives, students, parents and employers in the community to provide students with an opportunity to alternate in-school academic and vocational-technical instruction in entry-level paid employment in an occupational field, in which the student's total occupational work experience is planned, coordinated and supervised by the school in close cooperation with the employer.

   Curriculum--A series of planned instruction aligned with the academic standards in each subject that is coordinated and articulated and implemented in a manner designed to result in the achievement at the proficient level by all students.

   Department--The Department of Education of the Commonwealth.

   ESOL--English to speakers of other languages.

   Employment area--A geographic area where vocational-technical education program completers are most likely to be employed.

   Individuals with Disabilities Education Act--20 U.S.C.A. §§ 1400--1482.

   Intermediate unit--A regional educational service agency established under sections 951--974 of the School Code (24 P. S. §§ 9-951--9-974), which provides educational services to participating school districts as part of the public school system of this Commonwealth.

   PSSA--Pennsylvania System of School Assessment.

   Parent or guardian--A person legally responsible for a student's care.

   Planned instruction--Instruction offered by a school entity based upon a written plan to enable students to achieve the academic standards under § 4.12 (relating to academic standards) and additional academic standards determined in strategic plans under § 4.13 (relating to strategic plans).

   Prekindergarten--A program operated by a school district or by a community agency under contract from a school district that is open to children who are at least 3 years of age and completed prior to the school district's entry age for kindergarten.

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

   School entity--A local public education provider (for example, public school district, charter school, cyber charter school, AVTS or intermediate unit).

   Secretary--The Secretary of Education of the Commonwealth.

   School organization--The organization of a school district's programs into kindergarten, primary, intermediate level, middle level and high school programs, including programs operated at AVTSs.

   Strategic plan--A comprehensive plan for education developed under § 4.13.

   Tech-prep program--A combined secondary and postsecondary program which leads to an associate degree or certificate and employment by providing technical preparation in engineering technology, applied science, mechanical, industrial or practical art or trade, agriculture, health or business, including development of competence in mathematics, science and communications through a sequential course of study.

   Vocational-technical education--Programs under public supervision and control which provide an organized process of learning experiences designed to develop integrated academic and occupational skills, knowledge, attitudes, work habits and leadership ability for entry into and advancement within various levels of employment in occupational areas of agriculture, business, marketing and distribution, health, home economics and trade and industry and for participation in postsecondary education and training.

§ 4.4. General policies.

   (a)  It is the policy of the Board that the local curriculum be designed by school entities to achieve the academic standards under § 4.12 (relating to academic standards) and additional academic standards designated in strategic plans under § 4.13 (relating to strategic plans).

   (b)  It is the policy of the Board that local school entities have the greatest possible flexibility in curriculum planning consistent with providing quality education and in compliance with the School Code, including requirements for courses to be taught (24 P. S. §§ 15-1501 and 16-1605); subjects to be taught in the English language (24 P. S. § 15-1511); courses adapted to the age, development and needs of the pupils (24 P. S. § 15-1512); minimum school year of 180 days and minimum of 900 hours of instruction at the elementary level and 990 hours of instruction at the secondary level (24 P. S. §§ 15-1501 and 15-1504); employment of sufficient numbers of qualified professional employees (24 P. S. § 11-1106) and superintendents to enforce the curriculum requirements of State law (24 P. S. § 10-1005); and this part.

   (c)  Access to educational programs shall be provided without discrimination on the basis of a student's race, sex, color, religion, disability, sexual orientation or national origin.

   (d)  School entities shall adopt policies to assure that parents or guardians have the following:

   (1)  Access to information about the curriculum, including academic standards to be achieved, instructional materials and assessment techniques.

   (2)  A process for the review of instructional materials.

   (3)  The right to have their children excused from specific instruction that conflicts with their religious beliefs, upon receipt by the school entity of a written request from the parents or guardians.

   (4)  The right of the parent or guardian to review the State assessments in the school entity, at least 2 weeks prior to their administration, during convenient hours for parents and guardians. Necessary security requirements to maintain the validity of the assessment shall be taken in accordance with the State assessment administration instructions.

   (5)  If upon inspection of State assessments parents or guardians find the assessments in conflict with their religious belief and wish their students to be excused from the assessment, the right of the parents or guardians will not be denied upon written request to the applicable school district superintendent, charter school chief executive officer or AVTS director.

   (6)  Opportunity for involvement in the strategic planning process under § 4.13.

   (7)  The right to have their children excluded from research studies or surveys conducted by entities other than a school entity unless prior written consent has been obtained.

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