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PA Bulletin, Doc. No. 04-758




[22 PA. CODE CH. 14]

Special Education Services and Programs

[34 Pa.B. 2324]

   The State Board of Education (Board) amends Chapter 14 (relating to special education services and programs). The Board takes this action under the authority of sections 1372 and 2603-B of the Public School Code of 1949 (code) (24 P. S. §§  13-1372 and 26-2603-B). Notice of proposed rulemaking was published at 33 Pa.B. 4306 (August 30, 2003) with an invitation to submit written comments.


   The final-form rulemaking amends § 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) regarding parental consent and the initiation of educational services. If the Commonwealth does not make this change by June 30, 2004, the Commonwealth risks having more than $336 million in Federal special education funds withheld by the United States Department of Education, affecting services to nearly 250,000 students.

Comments and Responses

   The Board received public comments regarding the proposed rulemaking. In addition, the House Education Committee (Committee) held a hearing on October 8, 2003, and briefly continued its discussion at a hearing on October 15, 2003. Though the Committee did not officially submit comments, one member of the Committee did submit comments for consideration and Committee staff asked a question about the OSEP's position. In a letter, a State Representative urged the Board to challenge the OSEP, arguing that the OSEP's position is inconsistent with the requirements of the Individuals With Disabilities Education Act (IDEA). The State Representative believes the OSEP's position puts school districts at risk for legal challenges that could result in assessment of monetary damages were parents later to claim that the district did not fulfill its duty.

   In addition, the Board received a letter from the Pennsylvania School Boards Association (PSBA). The PSBA opposes the rulemaking, believing the OSEP's position to be inappropriate and putting school districts at risk of legal liability for not providing students a free appropriate public education (FAPE) as required by IDEA. In its letter, the PSBA urges the Board to move forward to a hearing with the United States Department of Education, believing that an administrative hearing would result in a favorable decision for the Commonwealth and no loss of Federal funds.

   At a public committee meeting held by the Board on February 21, 2003, the Standing Committee on Special Education received written and oral testimony regarding the proposed rulemaking from five commentators. The Education Law Center did not take a position on the proposed rulemaking and asked that other changes be made to Chapter 14 beyond those outlined in § 14.162. The Pennsylvania State Education Association concurred that the proposed rulemaking was necessary to avoid Federal funding jeopardy. Two commentators asked the Board not to make the revision and to challenge the OSEP's position through the hearing process. They expressed concern that school districts will face financial judgments resulting from legal challenges to districts that do not provide FAPE, even when a parent refuses FAPE. Another commentator asked the Board to state explicitly that a school district's obligation to provide FAPE ends upon a parent's refusal to consent to an initial offer of FAPE and does not request an impartial hearing.

Overall Comments and Policy Considerations

   Federal IDEA funding awarded to the Commonwealth for the 2003-04 school year is conditioned upon the Commonwealth making the necessary regulatory revision by June 30, 2004. In correspondence dated June 23, 2003, the Department of Education (Department) informed OSEP that it is committed to making this proposed rulemaking.

   The following outlines the substance of correspondence between the United States Department of Education and the Department regarding this issue.

   *  In an e-mail message sent June 28, 2002, the OSEP advised the Director of the Department's Bureau of Special Education (Bureau) that the Commonwealth must revise the regulation. The message stated:

In reviewing your eligibility documents, OGC brought it to my attention that there is a problem in Chapter 14. Specifically, § 14.162, Impartial due process hearing and expedited due process hearing, paragraph (c), reads:  ''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, the school district may request an impartial due process hearing.

   The emphasized words need to be eliminated to be consistent with 34 CFR 300.505(b), which does not include a parent's refusal to provide consent for initial placement.

   *  On January 28, 2003, in an e-mail message to the Director of the Bureau, the OSEP confirmed that the proposed amendment to § 14.162(c) conforms to the OSEP's interpretation of 34 CFR 300.505(b).

   *  In a letter dated June 23, 2003, to the United States Department of Education's Division of Monitoring and State Improvement Planning, the Director of the Bureau delivered a signed statement assuring the OSEP ''that Pennsylvania will continue to implement all required actions to ensure adherence with requirements for Part B grant awards under the Individuals with Disabilities Education Act (IDEA).'' The Department also assured the OSEP that ''[a]ll necessary modifications to state regulations required to address 34 CFR § 300.505 have been provided to the State Board of Education, have progressed through public input stages, and are pending regulatory adoption. . . .''

   The Department's statement of assurance also provided:

   1.  As soon as possible, but no later than July 1, 2004, the State will make all of the changes to its statutes, regulations, policies and procedures, as specified in the memorandum from Hugh Reid to Dr. Fran James Warkomski that are necessary to make them consistent with the following requirements of the Individuals with Disabilities Education Act (IDEA) and its implementing regulations in 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities), and will provide the Secretary with a copy of the revised documents showing those revisions to Chapter 14 of the Pennsylvania Code to change § 14.162 consistent with 34 CFR § 300.505(b). The suggested language should include:   ''The Individuals with Disabilities Education Act Amendments of 1997 require a public agency to obtain informed parental consent before it initiates provision of special education and related services (34 CFR § 300.505). The Pennsylvania Department of Education, Bureau of Special Education has agreed to seek a State Board revision to Chapter 14 of the Pennsylvania Code to change § 14.162(c) to enhance the Pennsylvania Department of Education's enforcement capabilities. Informed parental consent must be obtained before:  (1) conducting an initial evaluation; (2) reevaluation; and (3) the initial provision of special education and related services (34 CFR § 300.505(a)(1)). The public agency may seek a hearing officer decision permitting an initial evaluation and reevaluation when parents withhold consent (34 CFR § 300.505(b)). However, a hearing officer may not override a parental withholding of consent for the initiation of special education services. A parent's decision on whether to allow a school district to begin to initiate special education program is exclusive to the parent.''

   2.  Throughout the period of the State's grant awards for fiscal year 2003 under Part B of the IDEA, the State will ensure that all public agencies in the State will comply with all of the requirements of Parts A and B of the IDEA and its implementing regulations; and

   3.  The State will provide OSEP with a copy of a memorandum notifying all public agencies of the changes that impact on public agencies' provision of special education and related services that OSEP requires as a result of its review of the State's eligibility documents.

   *  In a letter dated July 1, 2003, from Stephanie S. Lee, Director of the OSEP to Vicki L. Phillips, Secretary of Education, the OSEP conditionally approved the Commonwealth's Eligibility Document Submission for Federal Fiscal Year 2003. The OSEP's determination that the Commonwealth was eligible for conditional approval was based on the Department providing its assurance that ''as soon as possible, but no later than July 1, 2004, Pennsylvania will revise Chapter 14 of the Pennsylvania Code to change § 14.162, consistent with 34 CFR § 300.505(b).'' The letter also required the Department to notify all public schools of this final-form rulemaking and the impact on their provision of special education services. The Department distributed a memorandum by means of an e-mail on August 15, 2003, to school administrators notifying them of the final-form rulemaking and the need for schools to comply with the change during the 2003-04 school year.

   Finally, Congress is currently engaged in reauthorization of IDEA. A bill recently approved by the Senate Health, Education, Labor and Pension Committee includes language that addresses this issue. The language in the bill is consistent with the OSEP's existing interpretation. Therefore, it is highly probable that this requirement will be clearly addressed in Federal statute upon reauthorization of IDEA.

   The Board believes the number of students affected by this final-form rulemaking is relatively small. Based on the most recent school year for which data is available, of nearly 250,000 students eligible for special education services, there was only one case where a school district sought a hearing officer's order to allow it to provide special education services to a student without parental consent.

   Upon careful consideration of the issues raised by all commentators, the Board believes it is in the best interest of the Commonwealth to comply with the directive from the OSEP and to revise § 14.162(c).

Affected Parties

   The final-form rulemaking affects the students and professional employees of the public schools of this Commonwealth (including intermediate units, area vocational-technical schools, public charter and alternative schools).

Costs and Paperwork Estimates

   Without proper alignment with Federal requirements, the Department might have its Federal funding for special education withheld, the current total exceeding $336 million.

Effective Date

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

Sunset Date

   In accordance with its policy and practice respecting all of its regulations, the 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 the notice of proposed rulemaking, published at 33 Pa.B. 4306, to the Independent Regulatory Review Commission (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 March 24, 2004, 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 March 25, 2004, and approved the final-form rulemaking.

Contact Person

   The official responsible for information on the 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.


   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 Public School Code of 1949.


   The Board, acting under authorizing statute, orders that:

   (a)  The regulations of the Board, 22 Pa. Code Chapter 14, are amended by amending § 14.162(c) to read as set forth at 33 Pa.B. 4306.

   (b)  The Executive Director shall submit this order and 33 Pa.B. 4306 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 33 Pa.B. 4306 and deposit them with the Legislative Reference Bureau as required by law.

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

Executive Director

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 2027 (April 10, 2004).)

   Fiscal Note:  Fiscal Note 6-287 remains valid for the final adoption of the subject regulation.

[Pa.B. Doc. No. 04-758. Filed for public inspection April 30, 2004, 9:00 a.m.]

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