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PA Bulletin, Doc. No. 03-1693


[22 PA. CODE CH. 14]

Special Education Services and Programs

[33 Pa.B. 4306]

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


   The State Board proposes to amend § 14.162(c) (relating to impartial due process hearing and expedited due process hearing). The purpose of amending § 14.162(c) is to align the Commonwealth's special education regulations with the requirements imposed by the United States Department of Education's Office of Special Education Programs (OSEP) relating to parental consent and the initiation of educational services.

Requirements of the Proposed Amendment

   The OSEP sent correspondence to the Department of Education (Education) indicating that § 14.162(c) is inconsistent with Federal regulatory requirements. The OSEP is requiring all states to revise conflicting regulations to remain eligible for Federal grant funds under the Individuals with Disabilities Education Act (IDEA). The OSEP maintains that when the requisite written parental consent is not forthcoming for an evaluation and initial education placement, under Federal regulations a local education agency (LEA) may not seek the approval of an impartial hearing officer to initiate the services and override the parents' withholding of consent. In short, OSEP contends that the LEA may not invoke the hearing process when the parents do not want special education services initiated for their child.

   To align with Federal regulations and continue the Commonwealth's eligibility for the IDEA grant funds, the State Board proposes to amend § 14.162(c) so that it will no longer allow an ''initial educational placement'' when the district has not obtained written parental consent.

Affected Parties

   The proposed regulations affect the students and professional employees of the public schools of this Commonwealth (including intermediate units, area vocational-technical schools, public charter and alternative schools).

Cost and Paperwork Estimates

   Without proper alignment with Federal requirements, the Department might lose its Federal funding for special education, the current total exceeding $310 million.

Effective Date

   The proposed amendment will become effective upon final-form publication in the Pennsylvania Bulletin.

Sunset Date

   In accordance with its policy and practice respecting all of its regulations, the State Board will review the effectiveness of Chapter 14 every 4 years. Thus, no sunset date is necessary.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 18, 2003, the Board submitted a copy of this proposed rulemaking and a copy of the 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 regulations within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulation, by the Department, 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 proposal to Patricia A. White, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333. Comments, suggestions or objections must be received by the State Board 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 Patricia White at (717) 787-3787 or TDD (717) 787-7367.

Executive Director

   Fiscal Note:  6-287. No fiscal impact; (8) recommends adoption.

Annex A





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

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   (c)  A school district may request a hearing to proceed with an initial evaluation[, an initial educational placement] or a reevaluation when the district has not obtained parental consent as required by 34 CFR 300.505(c) (relating to parental consent). When a parent rejects the district's proposed identification of a child, proposed evaluation, proposed provision of a free appropriate public education or proposed educational placement, other than the initial placement, the school district may request an impartial due process hearing.

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[Pa.B. Doc. No. 03-1693. Filed for public inspection August 29, 2003, 9:00 a.m.]

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