CHAPTER 14. SPECIAL EDUCATION SERVICES
AND PROGRAMS

   The provisions of this §  14.1 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4830; amended December 18, 1992, effective December 19, 1992, 22 Pa.B. 6030; amended January 7, 1993, effective January 8, 1993, 23 Pa.B. 144; amended February 20, 1998, effective February 21, 1998, 28 Pa.B. 1002; amended December 8, 2000, effective December 9, 2000, 30 Pa.B. 6330; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271464) to (271470).

   Exceptional Child

   One of the goals of the Department of Education is to provide all exceptional children in this Commonwealth with an ‘‘appropriate’’ educational program, as defined by Department regulations. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

   Individual suffering from Down’s Syndrome and cerebral palsy qualifies for ‘‘exceptional’’ child status under this regulation. Drinker v. Colonial Sch. Dist., 888 F. Supp. 674 (E. D. Pa. 1995).

   Regular Education Environment

   The Special Education Due Process Appeals Panel of the Department of Education exceeded its authority in fashioning a remedy that requires college-level instruction and private tutoring, where, as applied to the gifted child, compensatory education is limited to education available within the curriculum of the school district. Brownsville Area School District v. Student X, 729 A.2d 198 (Pa. Cmwlth. 1999); appeal denied 745 A.2d 1225 (Pa. 1999).

   School District Cooperation

   A school district is not required to create a Life Skills Support program within its own district; thus, sending a student to a nearby school district satisfied the requirements of the Individuals with Disabilities Act. Cheltenham School District v. Joel P. ex rel. Suzanne P., 949 F. Supp. 346 (E. D. Pa. 1996).

   Transportation for Special Education Students

   A school district is not obligated to provide transportation for a special education student to and from the residence of both the student’s father and mother when the father resides outside the boundaries of the district. North Allegheny School District v. Gregory, 687 A.2d 37 (Pa. Cmwlth. 1996).

   The provisions of this §  14.2 amended December 8, 2000, effective December 9, 2000, 30 Pa.B. 6330; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271470) to (271471).

   Exceptional Child

   The primary responsibility for identifying all exceptional children and developing educational programs to meet their needs rests with the local school district. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

   Gifted Child

   The provisions of this §  14.32 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4830; amended December 18, 1992, effective December 19, 1992, 22 Pa.B. 6030; amended January 7, 1994, effective January 8, 1994, 24 Pa.B. 144; amended February 20, 1998, effective February 21, 1998, 28 Pa.B. 1002; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (242017) to (242018) and (256361) to (256363).

   Assistants

   This section does not incorporate all possible related service personnel into the list of individuals whose salaries and retirement fund payments will be reimbursed by the Commonwealth; therefore, ‘‘assistants’’ did not include physical therapists, psychiatrists and the like. Bethlehem Area School District v. Carroll, 616 A.2d 737 (Pa. Cmwlth. 1992), appeal denied 818 A.2d 506 (Pa. 2003).

   Cover Pages

   The school district failed to provide an exceptional student with a free appropriate public education (FAPE), where its individualized education program (IEP) was procedurally deficient because a certified school psychologist was not part of the Multiple Disciplinary Team, the required cover pages of the IEP which detail the type of program being offered, the related services, the duration of the IEP, various services that needed to be considered and reviewed and the like were noticeably absent, no Notice of Recommended Assignment was ever proffered by the district to the family, and there is no evidence in the record that the district ever attempted to go to the student’s school in order to develop further the Comprehensive Evaluation Report (CER) through the use of its own psychologist and other staff, and where the CER and the IEP devised by the district also failed to meet substantive requirements because the degree of need in the CER were sketchy and thin, the IEP was vague, failed to address a means of handling the student’s emotional and behavioral disorders and contained immeasurable standards. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999).

   Overpayments

   As the approved private school failed to establish a basis for an allocation of allowable costs alternative to the equivalent full-time student (EFTS) reimbursement entitlement formula which the auditor applied in concluding that the Department of Education had overpaid the school, the Court properly determined that the school must reimburse the Department of Education for overpayments which the school received for tuition and maintenance of approved special education pupils enrolled at the school. Community Country Day School v. Department of Education, 641 A.2d 1282 (Pa. Cmwlth. 1994).

   Reimbursement Appropriate

   The school district failed to meet its obligations under the Individuals with Disabilities Education Act for the 1994-95 school year because it did not make any formal offer of educational placement for the student until April 1995, 10 months after the school district offered an inappropriate placement and nearly 7 months after the hearing officer determined that the offered placement was inappropriate and ordered the school district to provide an appropriate educational program. Thus, the parent was entitled to reimbursement of tuition expenses at the private school which offered an appropriate education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (1996).

   Reimbursement Inappropriate

   Although the parent disagreed with the emotional support component of the Individualized Education Plan, the school district’s plan was reasonably calculated to enable the student to receive educational benefits and was a free appropriate public education; thus, the parent was not entitled to tuition reimbursement for private education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (1996).

   Religious Schools

   The provisions of this §  14.33 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (256363).

   Transportation for Special Education Students

   School district boundaries are not determinative of a district’s obligation to meet a particular request for transportation as a related service. Clearly, where necessary to some integral part of the student’s special educational needs, a district must provide related services even where this imposes a substantial burden on the district. North Allegheny School District v. Parents, 687 A.2d 37 (Pa. Cmwlth. 1996).

   The provisions of this §  14.35 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4830; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (249383) to (249384).

   The provisions of this §  14.36 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (249384).

   Failure to Include Program

   The provisions of this §  14.41 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (271482).

   Placement

   Even where the family sends an exceptional child to private school, the public school District is still obligated to provide special education and early intervention programs and services for the child. However, providing those services and programs at the District, and not at the private school, satisfies that obligation. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

   Where the District conducts speech and language classes appropriate for an exceptional student enrolled in a private school, that student must receive an equal opportunity to participate in those classes. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

   The provisions of this §  14.42 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271482) to (271483) and (256365) to (256366).

   Notice of Recommended Assignment

   The school district failed to provide an exceptional student with a free appropriate public education (FAPE), where its individualized education program (IEP) was procedurally deficient because a certified school psychologist was not part of the Multiple Disciplinary Team, the required cover pages of the IEP which detail the type of program being offered, the related services, the duration of the IEP, various services that needed to be considered and reviewed and the like were noticeably absent, no Notice of Recommended Assignment was ever proffered by the district to the family, and there is no evidence in the record that the district ever attempted to go to the student’s school in order to develop further the Comprehensive Evaluation Report (CER) through the use of its own psychologist and other staff, and where the CER and the IEP devised by the district also failed to meet substantive requirements because the degree of need in the CER were sketchy and thin, the IEP was vague, failed to address a means of handling the student’s emotional and behavioral disorders and contained immeasurable standards. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999).

   Placement

   Placement in a private school, with the district bearing the responsibility for the attendant tuition, will only be approved if neither the local school district nor its supporting IU can provide an appropriate education for the child in question. Veschi v. Northwestern Lehigh School District, 772 A.2d 469 (Pa. Cmwlth. 2001).

   Tuition Reimbursement

   The provisions of this §  14.43 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (256366) to (256367).

   Placement

   The provisions of this §  14.44 amended January 7, 1994, effective January 8, 1994, 24 Pa.B. 144; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (256367) and (202979).

   Placement

   The provisions of this §  14.63 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (267310) to (267311) and (202989).

   Consumer Complaint

   The provisions of this §  14.64 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4830; amended December 18, 1992, effective December 19, 1992, 22 Pa.B. 6030; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (202989) to (202990) and (249391) to (249392).

   Burden of Proof

   While ‘‘due weight’’ must be accorded to the administrative proceedings, the burden of proof remained on the school district to show that it was in compliance with the Individuals with Disabilities Education Act (20 U.S.C.A. §  1400 et seq.), even when, as here, the school district prevailed at the administrative level. Laughlin v. Central Bucks Sch. Dist., No. 91-7333, 1994 U. S. Dist. LEXIS 201 (E. D. Pa. January 12, 1994).

   Consumer Complaint

   Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a ‘‘party’’ to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

   Coordination Services

   Subdivision (n)(2) makes it clear that only a school district has the option to forgo utilization of the coordination services offered in (n)(1) of this section. There is no language in the regulations that gives this option to the parents or requires that a school district notify parents of this option. Therefore, there was no violation of a parent’s due process right where the school district failed to notify the parent of the right to a hearing from an agency other than the Department of Education. Kozak v. Hampton Township Sch. Dist., 655 A.2d 641 (Pa. Cmwlth. 1995), appeal denied, No. 178 W. D. Alloc. 1995, 1995 Pa. LEXIS 793 (Pa. October 2, 1995).

   Judicial Review

   Arguments not presented to the appeals panel cannot be pressed in Federal court and courts may only review what the appeals panel actually decided. Drinker v. Colonial Sch. Dist., 888 F. Supp. 674 (E. D. Pa. 1995).

   Judicial Review; Exhaustion of Remedies

   To file suit to seek tuition reimbursement under the Federal Individuals with Disabilities Education Act (IDEA), a claimant must exhaust all available administrative remedies, including the due process hearing provided by §  14.64(a). The fact that one party feels that a mutually satisfactory resolution is impossible does not render the hearing futile; instead, the hearing is required to seek relief under the IDEA. Falzett v. Pocono Mountain School District, 150 F. Supp.2d 699 (M.D. Pa. 2001).

   Pending Litigation

   Although the first appeals panel’s decision was reached, the litigation was not resolved; therefore, 20 U.S.C.A. §  1415(e)(3)’s requirement that ‘‘during the pendency of any proceedings . . . the child shall remain in the then current educational placement’’ applied to this case. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

   The district court was correct in its decision that the school district must bear the burden of paying for the costs of a student’s education through the date of the district court’s final order. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

   Two-Tiered Review

   The provisions of this §  14.67 amended December 8, 2000, effective December 9, 2000, 30 Pa.B. 6330; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271485) to (271486).

   Reimbursement

   School district was required to reimburse an exceptional student’s parents for one-fourth the cost of an evaluation of the student performed by a doctor, where the district failed to include a certified school psychologist as required and because the district used the report when it prepared the individualized education program for the student. Cumberland Valley School District v. Lynn T., 725 A.2d 215 (Pa. Cmwlth. 1999).

   The provisions of these § §  14.72—14.74 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 6021. Immediately preceding text appears at serial pages (271487) to (271488).

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:

   Act—The Early Intervention Services System Act (11 P. S. § §  875-101—875-503).

   Agency—An intermediate unit, school district, approved private school, State-operated program or facility or other public (excluding charter schools under 24 P. S. § §  17-1701-A—17-1732-A) or private organization providing educational services to children with disabilities or providing early intervention services.

   Age of beginners—The minimum age established by the school district board of directors for admission to the district’s first grade under §  11.15 (relating to admission of beginners).

   Department—The Department of Education of the Commonwealth.

   Developmental areas—Cognitive, communicative, physical, social/emotional and self-help.

   Developmental delay—A child who is less than the age of beginners and at least 3 years of age is considered to have a developmental delay when one of the following exists:

     (i)   The child’s score, on a developmental assessment device, on an assessment instrument which yields a score in months, indicates that the child is delayed by 25% of the child’s chronological age in one or more developmental areas.

     (ii)   The child is delayed in one or more of the developmental areas, as documented by test performance of 1.5 standard deviations below the mean on standardized tests.

   ESY—Extended school year.

   Early intervention agency—An intermediate unit, school district or licensed provider which has entered into a mutually agreed upon written arrangement 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.

   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 (relating to a child with a disability).

   IEP—Individualized education program.

   IST—Instructional support team.

   MDT—Multidisciplinary team.

   Mutually agreed-upon written arrangement—As defined in the act.

   Parent—The term as defined in 34 CFR 300.20 (relating to parent) and also includes individuals appointed as foster parents under 42 Pa.C.S. § §  6301—6311 (relating to the Juvenile Act).

   Secretary—The Secretary of the Department.

   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).

   The provisions of this §  14.101 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 (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) and to ensure that:

     (i)   Children with disabilities have available to them a free appropriate public education which is designed to enable the student to participate fully and independently in the community, including preparation for employment or higher education.

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

   (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). 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).

   (3)  To specify how the Commonwealth will meet its obligations to suspected and identified children with disabilities who require special education and related services.

   (4)  To provide to the Commonwealth, through the Department, general supervision of services and programs provided under this chapter.

 (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) (relating to child find).

   The provisions of this §  14.102 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   Free Appropriate Public Education (FAPE)

 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).

 (a)  Each school district shall develop 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 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 specify special education programs that operate in the district and those that are operated in the district by the intermediate units, area vocational technical schools and other agencies.

 (c)  Each school district’s special education plan shall include procedures for the education of all students with a disability who are residents of the district including those receiving special education in approved private schools and students with a disability 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. The Secretary will prescribe the format, content and time for submission of the intermediate units’ plans.

 (e)  Each early intervention agency shall develop an early intervention special education plan every 3 years.

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

   (1)  Services and programs are designed to meet the needs of students identified as children with disabilities within the school district or intermediate unit or eligible young children within the early intervention agency.

   (2)  The full range of services and programs under this chapter are available to children with disabilities and eligible young children.

   (3)  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.

 (g)  Portions of the plans that do not meet the criteria for approval will be disapproved. Prior to disapproval, Department personnel will discuss disapproved portions of the plan and suggest modifications with appropriate intermediate unit or school district personnel. Portions of the plan that are not specifically disapproved will be deemed approved.

 (h)  When a portion of an intermediate unit, school district or early intervention plan is disapproved, the Department will issue a notice specifying the portion of the plan disapproved, and the rationale for the disapproval and the opportunity for a hearing under 2 Pa.C.S. § §  501—508 and 701—704 (relating to the Administrative Agency Law) and 1 Pa. Code Part II (relating to General Rules of Administrative Practice Procedure). If requested, the Department will convene a hearing within 30 days after the receipt of the request. The Department will render a decision within 30 days following the hearing.

   The provisions of this §  14.103 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   This section cited in 22 Pa. Code §  14.142 (relating to caseload for special education); and 22 Pa. Code §  14.155 (relating to range of services).

CHILD FIND, SCREENING AND EVALUATION

§ 14.121. Child find.

 (a)  In addition to the requirements incorporated by reference in 34 CFR 300.125(a)(1)(i) (relating to child find), each school district shall adopt and use a public outreach awareness system to locate and identify children thought to be eligible for special education within the school district’s jurisdiction.

 (b)  Each school district shall conduct awareness activities to inform the public of its early intervention and special education services and programs and the manner in which to request services and programs.

 (c)  Each school district shall provide annual public notification, published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the school district of child identification activities and of the procedures followed to ensure confidentiality of information pertaining to students with disabilities or eligible young children in accordance with this chapter.

 (a)  Each school district shall establish a system of screening to accomplish the following:

   (1)  Identify and provide initial screening for students prior to referral for a special education evaluation.

   (2)  Provide peer support for teachers and other staff members to assist them in working effectively with students in the general education curriculum.

   (3)  Conduct hearing and vision screening in accordance with section 1402 of the Public School Code of 1949 (24 P. S. §  14-1402) for the purpose of identifying students with hearing or vision difficulty so that they can be referred for assistance or recommended for evaluation for special education.

   (4)  Identify students who may need special education services and programs.

 (b)  Each school district shall implement a comprehensive screening process. School districts may implement instructional support according to Department guidelines or an alternative screening process. School districts which elect not to use instructional support for screening shall develop and implement a comprehensive screening process that meets the requirements specified in subsections (a) and (c).

 (c)  The screening process shall include:

   (1)  For students with academic concerns, an assessment of the student’s functioning in the curriculum including curriculum-based or performance-based assessment.

   (2)  For students with behavioral concerns, a systematic observation of the student’s behavior in the classroom or area in which the student is displaying difficulty.

   (3)  An intervention based on the results of the assessments under paragraph (1) or (2).

   (4)  An assessment of the student’s response to the intervention.

   (5)  A determination as to whether the student’s assessed difficulties are due to a lack of instruction or limited English proficiency.

   (6)  A determination as to whether the student’s needs exceed the functional ability of the regular education program to maintain the student at an appropriate instructional level.

   (7)  Activities designed to gain the participation of parents.

 (d)  If screening activities have produced little or no improvement within 60 school days after initiation, the student shall be referred for evaluation under §  14.123 (relating to evaluation).

 (e)  Screening activities do not serve as a bar to the right of a parent to request an evaluation, at any time, including prior to or during the conduct of screening activities.

 (a)  The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.534(a)(1) (relating to determination of eligibility), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, mental retardation, multiple disabilities, other health impairments, specific learning disability or traumatic brain injury.

 (b)  In addition to the requirements incorporated by reference in 34 CFR 300.531—300.535, the initial evaluation shall be completed and a copy of the evaluation report presented to the parents no later than 60 school days after the agency receives written parental consent.

   The provisions of this §  14.123 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   Basis for Decision

   The panel’s award of compensatory education was premised on a separate and distinct basis from the issues raised before the Hearing officer, requiring remand for an evidentiary hearing and an adjudication on the issue of appropriateness of the multidisciplinary evaluation. Mifflin County School District v. Special Education Due Process Appeals Board, 800 A.2d 1010 (Pa. Cmwlth. 2002).

 (a)  The group of qualified professionals, which reviews the evaluation materials to determine whether the child is a child with a disability under 34 CFR 300.536 (relating to reevaluation), shall include a certified school psychologist when evaluating a child for autism, emotional disturbance, mental retardation, multiple disabilities, other health impairment, specific learning disability and traumatic brain injury.

 (b)  In addition to the requirements incorporated by reference in 34 CFR 300.536 (relating to reevaluation), a reevaluation report shall be provided to the parents within 60 school days from the date that the request for reevaluation was received from the parent or teacher, or from the date that a determination is made by the agency that conditions warrant a reevaluation.

 (c)  Students with disabilities who are identified as mentally retarded shall be reevaluated at least once every 2 years.

   The provisions of this §  14.124 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

IEP

§ 14.131. IEP.

 (a)  In addition to the requirements incorporated by reference, the following provisions apply to IEPs:

   (1)  Copies of the comprehensive evaluation report shall be disseminated to the parents at least 10 school days prior to the meeting of the IEP team. A parent may waive this provision.

   (2)  The IEP of each student shall be implemented as soon as possible but no later than 10 school days after its completion.

   (3)  If a student with a disability moves from one school district in this Commonwealth to another, the new district shall implement the existing IEP to the extent possible or shall provide the services and programs specified in an interim IEP agreed to by the parents. The interim IEP shall be implemented until a new IEP is developed and implemented or until the completion of due process proceedings under this chapter.

   (4)  If a student with a disability moves into a school district in this Commonwealth from another state, the new school district may treat the student as a new enrollee and place the student into regular education and it is not required to implement the student’s existing IEP.

   (5)  Every student receiving special education and related services provided for in an IEP developed prior June 9, 2001, shall continue to receive the spe-cial education and related services under that IEP subject to the terms, limitations and conditions set forth in law.

 (b)  In addition to the requirements incorporated by reference in 34 CFR 300.29, 300.344(b) and 300.347(b) (relating to transition services; IEP team; and content of IEP), each school district shall designate persons responsible to coordinate transition activities.

   The provisions of this §  14.131 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   IEP Compliance

 This section sets forth the standards for determining whether a student with disabilities requires ESY as part of the student’s program.

   (1)  At each IEP meeting for a student with disabilities, the school districts shall determine whether the student is eligible for ESY services and if so, make subsequent determinations about the services to be provided.

   (2)  In considering whether a student is eligible for ESY services, the IEP team shall consider the following factors, however, no single factor will be considered determinative:

     (i)   Regression—whether the student reverts to a lower level of functioning as evidenced by a measurable decrease in skills or behaviors which occurs as a result of an interruption in educational programming.

     (ii)   Recoupment—whether the student has the capacity to recover the skills or behavior patterns in which regression occurred to a level demonstrated prior to the interruption of educational programming.

     (iii)   Whether the student’s difficulties with regression and recoupment make it unlikely that the student will maintain the skills and behaviors relevant to IEP goals and objectives.

     (iv)   The extent to which the student has mastered and consolidated an important skill or behavior at the point when educational programming would be interrupted.

     (v)   The extent to which a skill or behavior is particularly crucial for the student to meet the IEP goals of self-sufficiency and independence from caretakers.

     (vi)   The extent to which successive interruptions in educational programming result in a student’s withdrawal from the learning process.

     (vii)   Whether the student’s disability is severe, such as autism/pervasive developmental disorder, serious emotional disturbance, severe mental retardation, degenerative impairments with mental involvement and severe multiple disabilities.

   (3)  Reliable sources of information regarding a student’s educational needs, propensity to progress, recoupment potential and year-to-year progress may include the following:

     (i)   Progress on goals in consecutive IEPs.

     (ii)   Progress reports maintained by educators, therapists and others having direct contact with the student before and after interruptions in the education program.

     (iii)   Reports by parents of negative changes in adaptive behaviors or in other skill areas.

     (iv)   Medical or other agency reports indicating degenerative-type difficulties, which become exacerbated during breaks in educational services.

     (v)   Observations and opinions by educators, parents and others.

     (vi)   Results of tests including criterion-referenced tests, curriculum-based assessments, ecological life skills assessments and other equivalent measures.

   (4)  The need for ESY services will not be based on any of the following:

     (i)   The desire or need for day care or respite care services.

     (ii)   The desire or need for a summer recreation program.

     (iii)   The desire or need for other programs or services which, while they may provide educational benefit, are not required to ensure the provision of a free appropriate public education.

 (a)  Positive rather than negative measures shall form the basis of behavior support programs. Behavior support programs include a variety of techniques to develop and maintain skills that will enhance an individual student’s or young child’s opportunity for learning and self-fulfillment. The types of intervention chosen for a particular student or young child shall be the least intrusive necessary.

 (b)  Notwithstanding the requirements incorporated by reference in 34 CFR 300.24(b)(9)(vi), (13)(v), 300.346(a)(2)(i) and (d) and 300.520(b) and (c) (relating to related services; development, review, and revision of IEP; and authority of school personnel), with regard to a child’s behavior, the following words and terms when used in this section, have the following meanings, unless the context clearly indicates otherwise:

   Aversive techniques—Deliberate activities designed to establish a negative association with a specific behavior.

   Behavior support—The development, change and maintenance of selected behaviors through the systematic application of behavior change techniques.

   Positive techniques—Methods which utilize positive reinforcement to shape a student’s behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.

   Restraints—Devices and techniques designed and used to control acute or episodic aggressive behaviors or to control involuntary movements or lack of muscular control due to organic causes or conditions. The term includes physical and mechanical restraints.

 (c)  Restraints to control acute or episodic aggressive behavior may be used only when the student is acting in a manner as to be a clear and present danger to himself, to other students or to employees, and only when less restrictive measures and techniques have proven to be or are less effective. The use of restraints to control the aggressive behavior of an individual student shall cause a meeting of the IEP team to review the current IEP for appropriateness and effectiveness. The use of restraints may not be included in the IEP for the convenience of staff, as a substitute for an educational program, or employed as punishment.

 (d)  Mechanical restraints, which are used to control involuntary movement or lack of muscular control of students when due to organic causes or conditions, may be employed only when specified by an IEP and as determined by a medical professional qualified to make the determination, and as agreed to by the student’s parents. Mechanical restraints shall prevent a student from injuring himself or others or promote normative body positioning and physical functioning.

 (e)  The following aversive techniques of handling behavior are considered inappropriate and may not be used by agencies in educational programs:

   (1)  Corporal punishment.

   (2)  Punishment for a manifestation of a student’s disability.

   (3)  Locked rooms, locked boxes or other locked structures or spaces from which the student cannot readily exit.

   (4)  Noxious substances.

   (5)  Deprivation of basic human rights, such as withholding meals, water or fresh air.

   (6)  Suspensions constituting a pattern under §  14.143(a) (relating to disciplinary placement).

   (7)  Treatment of a demeaning nature.

   (8)  Electric shock.

 (f)  Agencies have the primary responsibility for ensuring that behavior management programs are in accordance with this chapter, including the training of personnel for the use of specific procedures, methods and techniques, and for having a written policy on the use of behavior management techniques and obtaining parental consent prior to the use of highly restraining or intrusive procedures.

 (g)  In accordance with their plans, agencies may convene human rights committees to oversee the use of restraining or intrusive procedures and restraints.

   The provisions of this §  14.133 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

EDUCATIONAL PLACEMENT

§ 14.141. Terminology related to educational placement.

 Notwithstanding the requirements incorporated by reference with regard to educational placements, the following words and terms, when used in §  14.142 (relating to caseload for special education), have the following meanings:

   Autistic support—Services for students with the disability of autism.

   Blind and visually impaired support—Services for students with the disability of visual impairment, including blindness.

   Deaf and hard of hearing impaired support—Services for students with the disabilities of deafness or hearing impairment.

   Emotional support—Services for students with a disability whose primary identified need is emotional support.

   Full-time—Special education classes provided for the entire school day, with opportunities for participation in nonacademic and extracurricular activities to the maximum extent appropriate, which may be located in or outside of a regular school.

   Itinerant—Regular classroom instruction for most of the school day, with special education services and programs provided by special education personnel inside or outside of the regular class for part of the school day.

   Learning support—Services for students with a disability whose primary identified need is academic learning.

   Life skills support—Services for students with a disability focused primarily on the needs of students for independent living.

   Multiple disabilities support—Services for students with multiple disabilities.

   Part-time—Special education services and programs outside the regular classroom but in a regular school for most of the school day, with some instruction in the regular classroom for part of the school day.

   Physical support—Services designed primarily to meet the needs of students with the disabilities of orthopedic or other health impairment.

   Resource—Regular classroom instruction for most of the school day, with special education services and programs provided by special education personnel in a resource room for part of the school day.

   Speech and language support—Services for students with the disability of speech and language impairment.

 (a)  This chart presents the maximum caseload allowed on a single teacher’s roll for each school district.

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

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

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

   (3)  Provide a justification for why the chart deviates from the caseload chart in subsection (a).

   (4)  Describe the opportunities for parents, teachers and other interested parties to review and comment on the chart prior to its submission.

 (c)  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 shall follow the caseload chart under subsection (a).

 (d)  Caseloads are not applicable to approved private schools.

 (e)  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:

   (1)  Graduation rates of students with a disability.

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

   (3)  Postsecondary transition of students with a disability.

   (4)  Rate of grade level retentions.

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

 (f)  The maximum age range shall be 3 years in elementary school (grades K-6) and 4 years in secondary school (grades 7-12). A student with a disability may not be placed in a class in which the chronological age from the youngest to the oldest student exceeds these limits unless an exception is determined to be appropriate by the IEP team and is justified in the IEP.

   The provisions of this §  14.142 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 (a)  Notwithstanding the requirements incorporated by reference in 34 CFR 300.519(b) (relating to change of placement for disciplinary removals), a disciplinary exclusion of a student with a disability for more than 15 cumulative school days in a school year will be considered a pattern so as to be deemed a change in educational placement.

 (b)  A removal from school is a change of placement for a student who is identified with mental retardation, except if the student’s actions are consistent with 34 CFR 300.520 (a)(2)(i) and (ii) (relating to authority of school personnel). For this purpose, the definitions in 34 CFR 300.520(d) apply.

   The provisions of this §  14.143 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 The comparability and availability of facilities for students with a disability shall be consistent with the approved intermediate unit or school district plan, which shall provide, by description of policies and procedures, the following:

   (1)  Students with disabilities will be provided appropriate classroom space.

   (2)  Moving of a class shall occur only when the result will be:

     (i)   To bring the location for delivery of special education services and programs closer to the students’ homes.

     (ii)   To improve the delivery of special education services and programs without reducing the degree to which the students with disabilities are educated with students without disabilities.

     (iii)   To respond to an emergency which threatens the students’ health or safety.

     (iv)   To accommodate ongoing building renovations, provided that the movement of students with disabilities due to renovations will be proportional to the number of students without disabilities being moved.

     (v)   That the location of classes shall be maintained within a school building for at least 3 school years.

   (3)  Each special education class is:

     (i)   Maintained as close as appropriate to the ebb and flow of usual school activities.

     (ii)   Located where noise will not interfere with instruction.

     (iii)   Located only in space that is designed for purposes of instruction.

     (iv)   Readily accessible.

     (v)   Composed of at least 28 square feet per student.

   The provisions of this §  14.144 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

EARLY INTERVENTION

§ 14.151. Purpose.

 (a)  This section and § §  14.152—14.158 (relating to early intervention) apply to services and programs for eligible young children.

 (b)  Notwithstanding the requirements incorporated by reference, with regard to early intervention services:

   (1)  The Department will provide for the delivery of early intervention services.

   (2)  The Department may provide for the delivery of some or all of these services through mutually agreed-upon written arrangements. Each mutually agreed-upon written arrangement may include memoranda of understanding under an approved plan submitted to the Department by an intermediate unit, school district or other agencies.

 (a)  Each early intervention agency shall adopt and use a system to locate and identify eligible young children and young children thought to be eligible who reside within the boundary served by the early intervention agency.

 (b)  Each early intervention agency shall conduct awareness activities to inform the public of early intervention services and programs and the manner by which to request these services and programs.

 (c)  Each early intervention agency shall provide annual public notification, published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the area served by the agency of child identification activities and of the procedures followed to ensure confidentiality of information pertaining to eligible young children in accordance with this chapter.

   The provisions of this §  14.152 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 Notwithstanding the requirements adopted by reference:

   (1)  Evaluations shall be conducted by early intervention agencies for children who are thought to be eligible for early intervention and who are referred for evaluation.

   (2)  Evaluations shall be sufficient in scope and depth to investigate information relevant to the young child’s suspected disability, including physical development, cognitive and sensory development, learning problems, learning strengths and educational needs, communication development, social and emotional development, self-help skills and health considerations, as well as an assessment of the family’s perceived strengths and needs which will enhance the child’s development.

   (3)  The assessment shall include information to assist the MDT to determine whether the child has a disability and needs special education and related services and to determine the extent to which the child can be involved in appropriate preschool activities.

   (4)  The following timeline applies to the completion of evaluations and reevaluations under this section:

     (i)   Initial evaluation or reevaluation shall be completed and a copy of the evaluation report presented to the parents no later than 60 days after the early intervention agency receives written parental consent.

     (ii)   Notwithstanding the requirements incorporated by reference in 34 CFR 300.536 (relating to reevaluation), a reevaluation report shall be provided within 60 days from the date that the request for reevaluation was received from the parent or teacher, or from the date that a determination is made that conditions warrant a reevaluation.

     (iii)   Reevaluations shall occur at least every 2 years.

   (5)  Each eligible young child shall be evaluated by an MDT, to make a determination of continued eligibility for early intervention services and to develop an evaluation report in accordance with the requirements concerning evaluation under §  14.123 (relating to evaluation), excluding the provision to include a certified school psychologist where appropriate under §  14.123(a).

   The provisions of this §  14.153 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 (a)  An IEP is a written plan for the provision of appropriate early intervention services to an eligible young child, including services to enable the family to enhance the young child’s development. The IEP shall be based on and be responsive to the results of the evaluation.

 (b)  Notwithstanding the requirements incorporated by reference, the IEP team shall include:

   (1)  At least one special education teacher or special education provider.

   (2)  An agency representative familiar with appropriate activities for preschool children and knowledgeable about the availability of the resources of the early intervention agency. With regard to the adoption of 34 CFR 300.344(a)(4) (relating to IEP team), the agency representative shall be qualified to provide or supervise the provision of specially designed instruction to meet the needs of children with disabilities. This could include a preschool supervisor or service coordinator or designee of the early intervention agency.

 (c)  With parental consent, the IEP shall include a section on family services, which shall provide for appropriate services to assist the family in supporting the eligible young child’s development.

 (d)  Notwithstanding the requirements incorporated by reference, the following timelines govern the preparation and implementation of IEPs:

   (1)  The IEP of each eligible young child shall be implemented as soon as possible, but no later than 14 days after the completion of the IEP.

   (2)  The IEP of each eligible young child shall be reviewed by the IEP team at least annually.

 (e)  For children who are within 1 year of transition to a program for school age students, the IEP shall contain goals and objectives which address the transition process.

 (f)  Progress indicators include but are not limited to, IEP annotation, dated progress and documented parental feedback.

 (g)  If an eligible young child moves from one early intervention agency to another in this Commonwealth, the new early intervention agency shall implement the existing IEP to the extent possible or shall provide services and programs specified in an interim IEP agreed to by the parents until a new IEP is developed and implemented and until the completion of due process proceedings under this chapter.

 (h)  Every eligible young child receiving special education and related services provided for in the IEP developed prior to June 9, 2001, shall continue to receive the special education and related services under that IEP subject to the terms, limitations and conditions set forth in law.

   The provisions of this §  14.154 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 (a)  The Department will ensure that options are available to meet the needs of children eligible for early intervention. The options may be made available directly by early intervention agencies or through contractual arrangements for services and programs of other agencies in the community, including preschools, provided these other agencies are licensed, when appropriate, by the Department or the Department of Public Welfare.

 (b)  The IEP team shall review the alternatives in subsection (c) in descending order, except for the options relating to services and programs provided in the home. Services provided in the home may be the least restrictive early intervention program for an eligible young child.

 (c)  The IEP team shall recommend services and programs be provided in a regular class or regular preschool program unless the IEP team determines that the IEP cannot be implemented in a regular class or regular preschool program even with supplemental aids and services. The placement options include the following:

   (1)  Regular preschool program or class for the entire school or program day with supportive intervention, including modifications to the regular program and individualization by the preschool program or classroom teacher.

   (2)  Regular preschool program or class for all or most of the school or program day, with supplemental aids and services provided by early intervention personnel.

   (3)  Early intervention services and programs provided in a specialized setting for most or all of the program day, with noneligible young children.

   (4)  Early intervention services and programs provided in a specialized setting, with some programming provided in the regular preschool program or class and opportunities for participation with noneligible young children in play or other activities.

   (5)  Early intervention services and programs provided in the home, including services which are provided in conjunction with services provided in another setting.

   (6)  Early intervention services provided in a specialized early intervention program.

   (7)  Early intervention services and programs provided in a specialized setting, including the following:

     (i)   An approved private school.

     (ii)   A residential school, residential facility, State school or hospital or special secure setting on an individual or group basis, with parental consent.

     (iii)   An approved out-of-State program.

 (d)  The duration of early intervention services, in terms of program days and years, shall accommodate the individual needs of eligible young children. The duration of early intervention services shall be developed by each early intervention agency and shall be included in its plans under §  14.104 (relating to educational plans).

 (e)  The caseloads of professional personnel shall be determined on the basis of maximums allowed and the amount of time required to fulfill eligible young children’s IEPs. The following caseloads shall be used in early intervention programs:

   (1)  Supportive intervention. In a regular preschool program in which supportive intervention is the primary method of service, the caseload range shall be 10-40 children with no more than six eligible young children serviced in the same session. Supportive intervention includes consultation, integrated therapies and other instructional strategies.

   (2)  Specialized setting. In early intervention programs provided in a specialized setting, the staff ratio is based on the developmental levels of the children. At least one staff member shall be a certified professional. For children functioning at:

     (i)   0-18 months—One staff member for every three eligible young children, with a maximum class size of nine.

     (ii)   18-36 months—One staff member for every four eligible young children, with a maximum class size of 12.

     (iii)   36 months and up—One staff member for every six eligible young children, with a maximum class size of 18 children.

   (3)  Home based program. In early intervention programs in which the home based program is provided to eligible young children as the only program, the ratio is 10 to 20 eligible young children per teacher. This shall also include teachers of the visually impaired, hearing impaired, and orientation and mobility specialists.

   (4)  Early intervention program—speech and language. In early intervention programs, the speech and language itinerant program will be provided within a caseload of 10 to 50 eligible young children enrolled per teacher.

   (5)  Early intervention program—physical and occupational therapies. In early intervention programs where physical therapy or occupational therapy, or both, is specified on the IEP, individual caseloads are determined with consideration of the type of services delivered and the time required for those services.

   The provisions of this §  14.155 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   Least Restrictive Environment

   The definition of the ‘‘mandated least restrictive environment’’ in this Commonwealth’s early intervention regulations differs significantly from that of IDEA, in that it specifically considers that for a preschool aged child, home may be the least restrictive environment. Delaware County Intermediate Unit v. Jonathan S., 809 A.2d 1051 (Pa. Cmwlth. 2002).

 The Department will assure in accordance with section 302(b) of the act (11 P. S. §  875-302(b)) through its monitoring and technical assistance activities, a system of quality assurance, including evaluation of the developmental appropriateness, quality and effectiveness of programs; assurance of compliance with program standards; documented progress indicators; and provision of assistance to assure compliance. These requirements will apply to those programs operated by the early intervention agency directly or through providers contracted by the early intervention agency.

   The provisions of this §  14.156 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 (a)  Under section 301(14) of the act (11 P. S. §  875-301(14)), children shall be exited subject to § §  14.161 and 141.162 (relating to procedural safeguards) from early intervention based on one or more of the following criteria:

   (1)  The child has reached the age of beginners and is therefore no longer eligible for early intervention services authorized under the act.

   (2)  The child has functioned within the range of normal development for 4 months, with an IEP, and as verified by the IEP team.

   (3)  The parent or guardian withdrew the child from early intervention for other reasons.

 (b)  If the child does not meet exit criteria and the child’s IEP demonstrates that the child will benefit from services which can be provided only through special education, nothing in the law or this chapter prevents that placement.

   The provisions of this §  14.157 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

 The Department will require early intervention agencies to maintain accurate information concerning eligible young children and the types of services received, and to report that information in aggregate at predetermined dates throughout the fiscal year. The Secretary will prescribe the format, content, data items and time for submission of the required information.

   The provisions of this §  14.158 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   This section cited in 22 Pa. Code §  14.151 (relating to purpose).

PROCEDURAL SAFEGUARDS

§ 14.161. Prehearing conferences.

 The purpose of the prehearing conference is to reach an amicable agreement in the best interest of the student or young child.

   (1)  In addition to the requirements incorporated by reference in 34 CFR 300.503—300.505 (relating to prior notice by the public agency; content of notice; procedural safeguards notice; and parental consent), the notice shall provide for a parent to request the school district or early intervention agency in the case of a young child to convene a prehearing conference in instances when the parent disapproves the school district’s proposed action or refusal to act.

   (2)  When a parent requests and the school district or early intervention agency in the case of a young child agrees to participate in a prehearing conference, the conference shall be convened within 10 days of receipt of the parent notice and shall be chaired by the superintendent, the early intervention agency representative or their designees.

   (3)  A parent or the school district or early intervention agency in the case of a young child may waive the right to a prehearing conference and immediately request an impartial due process hearing under §  14.162 (relating to impartial due process hearing and expedited due process hearing).

   (4)  If the prehearing conference results in agreement, the provisions under §  14.131 (relating to IEP) shall be applied.

   (5)  Within 5 days of the agreement, a parent may notify the school district or early intervention agency in the case of a young child, in writing, of a decision not to approve the identification, evaluation, recommended assignment or the provision of a free appropriate public education. When a parent gives notice not to approve the identification, evaluation, recommended assignment, or the provision of a free appropriate public education, or if the prehearing conference does not result in an agreement, the provisions under §  14.162 shall be applied.

   The provisions of this §  14.161 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.

   Consumer Complaint

   Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a ‘‘party’’ to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

 (a)  In addition to the requirements incorporated by reference in 34 CFR 300.504 (relating to procedural safeguard notice), with regard to a student who is mentally retarded or thought to be mentally retarded, a notice when mailed shall be issued to the parent by certified mail (addressee only, return receipt requested).

 (b)  If parents disagree with the school district’s, or the early intervention agency’s in the case of a young child, identification, evaluation, or placement of, or the provision of a free appropriate public education to the student or young child, the parent may request an impartial due process hearing.

 (c)  A school district may request a hearing to proceed with an initial evaluation or a reevalaution 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.

 (d)  The hearing for a child with a disability or thought to be a child with a disability shall be conducted by and held in the school district at a place and time reasonably convenient to the parents and child involved. A hearing for an eligible young child or thought to be eligible young child shall be conducted by the early intervention agency at a place and time reasonably convenient to the parents and child involved. These options shall be set forth in the notice provided for requesting a hearing.

 (e)  The hearing shall be an oral, personal hearing and shall be closed to the public unless the parents request an open hearing. If the hearing is open, the decision issued in the case, and only the decision, shall be available to the public. If the hearing is closed, the decision shall be treated as a record of the student or young child and may not be available to the public.

 (f)  The decision of the hearing officer shall include findings of fact, discussion and conclusions of law. Although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.

 (g)  The hearing officer shall have the authority to order that additional evidence be presented.

 (h)  A written or at the option of the parents, electronic verbatim record of the hearing shall, upon request, be made and provided to parents at no cost.

 (i)  Parents may be represented by legal counsel and accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities.

 (j)  A parent or parent’s representative shall be given access to educational records, including any tests or reports upon which the proposed action is based.

 (k)  A party may prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least 5-business days before the hearing.

 (l)  A party has the right to compel the attendance of and question witnesses who may have evidence upon which the proposed action might be based.

 (m)  A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.

 (n)  A party to a hearing has the right to obtain written, or, at the option of the parents, electronic findings of fact and decisions.

 (o)  The decision of the hearing officer regarding a child with a disability or thought to be a child with a disability may be appealed to a panel of three appellate hearing officers. The panel’s decision may be appealed further to a court of competent jurisdiction. In notifying the parties of its decision, the panel shall indicate the courts to which an appeal may be taken. The decision of the hearing officer regarding an eligible young child may be appealed to a court of competent jurisdiction. In notifying the parties of the decision, the hearing officer shall indicate the courts to which an appeal may be taken.

 (p)  The following applies to coordination services for hearings and to hearing officers and appellate hearing officers:

   (1)  The Secretary may contract for coordination services in support of hearings conducted by local school districts. The coordination services shall be provided on behalf of school districts and may include arrangements for stenographic services, arrangements for hearing officer services, scheduling of hearings and other functions in support of procedural consistency and the rights of the parties to hearings.

   (2)  If a school district chooses not to utilize the coordination services under paragraph (1), it may conduct hearings independent of the services if it has obtained the Secretary’s approval of procedures that similarly provide for procedural consistency and ensure the rights of the parties. In the absence of approval, a school district which receives a request for an impartial due process hearing shall forward the request to the entity providing coordination services under paragraph (1) without delay.

   (3)  The Secretary will contract for the services of hearing officers for hearings related to an eligible young child or thought to be eligible young child and for appellate hearing officers for school aged students and may compensate the hearing officers and appellate hearing officers for their services. The compensation does not cause the hearing officers and appellate hearing officers to become employees of the Department.

   (4)  Neither a hearing officer nor an appellate hearing officer may be an employee or agent of a school entity in which the parents or student or young child resides, or of an agency which is responsible for the education or care of the student or young child or by a person having a personal or professional interest that would conflict with the person’s objectivity in the hearing. A hearing officer or appellate hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.

 (q)  The following timeline applies to due process hearings:

   (1)  A hearing shall be held within 30 days after a parent’s or school district’s initial request for a hearing. If the school district uses the coordination services under subsection (p), the parent’s request must be forwarded by the school district within 5 days of the receipt of the request to the service agency supported by the Secretary.

   (2)  The hearing officer’s decision shall be issued within 45 days after the parent’s or school district’s request for a hearing.

   (3)  The appellate hearing panel shall render a decision within 30 days after a request for review.

   (4)  A hearing officer or appellate hearing officer may grant specific extensions of time beyond the periods in paragraphs (1)—(3) at the request of either party.

   (5)  If an expedited hearing is conducted under 34 CFR 300.528 (relating to expedited due process hearings), the hearing officer decision shall be mailed within 45 days of the public agency’s receipt of the request for the hearing without exceptions or extensions.

 (r)  If the decision of the hearing officer is appealed, the panel of appellate hearing officers as provided in subsection (o) shall conduct an impartial review of the hearing. The review shall do the following:

   (1)  Examine the entire hearing record.

   (2)  Ensure that the procedures at the hearing were consistent with the requirements of due process.

   (3)  Seek additional evidence if necessary. If a hearing is held to receive additional evidence, the rights under subsections (e)—(n) apply.

   (4)  Afford the parties an opportunity for oral or written argument, or both, at the discretion of the panel of appellate hearing officers.

   (5)  Make an independent decision on completion of the review.

   (6)  Give to the district a written copy of the findings of fact and decisions and provide at the option of the parents, a written or electronic copy of the findings of fact and decisions.

 (s)  Each school district and early intervention agency shall keep a list of the persons who serve as hearing officers. The list shall include the qualifications of each hearing officer. School districts and early intervention agencies shall provide parents with information as to the availability of the list and shall make copies of it available upon request.

   The provisions of this §  14.162 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021; amended April 30, 2004, effective May 1, 2004, 34 Pa.B. 2324. Immediately preceeding text appears at serial pages (293076) to (293077), (279597) to (279598) and (293079).

   Consumer Complaint

   Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a ‘‘party’’ to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

   This section cited in 22 Pa. Code §  11.34 (relating to excusals from attendance for other than temporary reasons); and 22 Pa. Code §  14.161 (relating to prehearing conferences).