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CHAPTER 14. SPECIAL EDUCATION SERVICES
AND PROGRAMSSec.
14.1. [Reserved].
14.2. [Reserved].
14.314.8 Reserved].
14.2114.23 [Reserved].
14.24. [Reserved].
14.25. [Reserved].
14.31. [Reserved].
14.32. [Reserved].
14.33. [Reserved].
14.34. [Reserved].
14.35. [Reserved].
14.36. [Reserved].
14.37. [Reserved].
14.38. [Reserved].
14.39. [Reserved].
14.41. [Reserved].
14.42. [Reserved].
14.43. [Reserved].
14.44. [Reserved].
14.45. [Reserved].
14.51 and 14.52. [Reserved].
14.53. [Reserved].
14.5414.56 [Reserved].
14.61. [Reserved].
14.62. [Reserved].
14.63. [Reserved].
14.64. [Reserved].
14.65. [Reserved].
14.66. [Reserved].
14.67. [Reserved].
14.68. [Reserved].
14.71. [Reserved].
14.7214.74 [Reserved].
GENERAL PROVISIONS
14.101. Definitions.
14.102. Purposes.
14.103. Terminology related to Federal regulations.
14.104. Educational plans.
CHILD FIND, SCREENING AND EVALUATION
14.121. Child find.
14.122. Screening.
14.123. Evaluation.
14.124. Reevaluation.
IEP
14.131. IEP.
14.132. ESY.
14.133. Behavior support.
EDUCATIONAL PLACEMENT
14.141. Terminology related to educational placement.
14.142. Caseload for special education.
14.143. Disciplinary placements.
14.144. Facilities.
EARLY INTERVENTION
14.151. Purpose.
14.152. Child find, public awareness and screening.
14.153. Evaluation.
14.154. IEP.
14.155. Range of services.
14.156. System of quality assurance.
14.157. Exit criteria.
14.158. Data collection.
PROCEDURAL SAFEGUARDS
14.161. Prehearing conferences.
14.162. Impartial due process hearing and expedited due process hearing.Authority The provisions of this Chapter 14 issued under sections 502, 925, 1001, 1002, 1052, 10541060, 10661068, 1142, 1146, 1162, 13261330, 13711382, 14011422, 25092510.1, 2541 and 2601-B2606-B of the Public School Code of 1949 (24 P. S. § § 5-502, 9-925, 10-1001, 10-1002, 10-1052, 10-105410-1057, 10-105910-1060, 10-106610-1068, 11-1142, 11-1146, 11-1162, 13-132613-1330, 13-137113-1382, 14-140114-1422, 25-250925-2510.1, 25-2541 and 26-2601-B26-2606-B), unless otherwise noted.
Source The provisions of this Chapter 14 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339, unless otherwise noted.
Notes of Decisions Appropriate Educational Placement
In failing to implement the evaluation, notice and other procedural requirements under the Individuals with Disabilities Education Act (20 U.S.C.A. § 1400 et seq.), and this chapter, the school district failed to provide an appropriate educational placement, as required by 20 U.S.C.A. § 1412, after it was notified of these students potentially handicapping conditions. Therefore, compensatory education and reimbursement for out-of-pocket expenses were appropriately granted. Punxsutawney Area Sch. Dist. v. Kanouff, 663 A.2d 831 (Pa. Cmwlth. 1995).
The purpose of this chapter is to specify how the Commonwealth will meet its obligation to both suspected and identified exceptional students and to provide appropriate, quality education services. That obligation entails an evaluation and screening process, including a multidisciplinary evaluation, which is mandated by both state and Federal law. Thereafter, the school district must develop a written plan for the appropriate education for the student, which must be in the least restrictive environment, in order to guarantee a free appropriate public education to the child. Punxsutawney Area Sch. Dist. v. Kanouff, 663 A.2d 831 (Pa. Cmwlth. 1995).
Evidence
It was not within the district courts discretion to reject the parents offer of additional evidence without even evaluating it for its admissibility where the parents claimed that the child was mentally gifted but afflicted with a specific learning disability that thereby entitled the child to special education. However, because at least some of the parents proffered additional evidence was acquired after the school districts decision regarding the childs need for special education, such evidence should be examined carefully and may be considered only with respect to the reasonableness of the districts decision at the time it was made. Of course, this caveat does not mean that the court cannot exclude evidence that could have been available when the school district made its decision. Susan N. v. Wilson School District, 70 F.3d 751 (3d Cir. Pa. 1995).
Exhaustion of Remedies
Where relief is available under the administrative process, a plaintiff must first utilize the available administrative process, even if the remedies available are not the remedies desired. Lindsley v. Girard School District, 213 F. Supp.2d 523 (E. D. Pa. 2002).
Private School Education
The Individuals with Disabilities Education Act (20 U.S.C.A. § 1400 et seq.), and these regulations, emphasize procedural safeguards to ensure parental participation in the administrative process; thus, the due process hearing also required cannot suffice for the school districts earlier failures to follow the statutorily mandated procedures and provide appropriate placement as required by the law. Punxsutawney Area Sch. Dist. v. Kanouff, 663 A.2d 831 (Pa. Cmwlth. 1995).
Upon turning 3 years old, a minor child with a pervasive development disorder was entitled to remain in an educational program at a private school, even though the public school developed appropriate education programs, when the public school failed to provide appropriate public education at the beginning of the school year. Delaware County Intermediate Unit No. 25 v. Martin K., 831 F. Supp. 1206 (M. D. Pa. 1993).
Cross References This chapter cited in 22 Pa. Code § 4.31 (relating to vocational-technical education); 22 Pa. Code § 11.27 (relating to graduation); 22 Pa. Code § 12.1 (relating to free education and attendance); 22 Pa. Code § 15.2 (relating to definitions); 22 Pa. Code § 15.8 (relating to procedural safeguards); 22 Pa. Code § 15.10 (relating to discrimination claims); 22 Pa. Code § 15.11 (relating to rules of construction); 22 Pa. Code § 16.7 (relating to special education); 22 Pa. Code § 16.31 (relating to general); 22 Pa. Code § 171.15 (relating to evaluation); 22 Pa. Code § 171.16 (relating to assignment); 22 Pa. Code § 171.18 (relating to withdrawal); 22 Pa. Code § 171.23 (relating to application for approved private school status); 22 Pa. Code § 181.4 (relating to free public education); 22 Pa. Code § 711.2 (relating to purposes and intent); and 55 Pa. Code § 3800.229 (relating to education).
§ 14.1. [Reserved].
Source 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).
Notes of Decisions 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 Downs 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 students 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).
School district boundaries are not determinative of a districts obligation to meet a particular request for transportation as a related service. Clearly, when necessary to some integral part of the students special educational needs, a district must provide related services even where this imposes a substantial burden on the district. North Allegheny School District v. Gregory, 687 A.2d 37 (Pa. Cmwlth. 1996).
§ 14.2. [Reserved].
Source 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).
Notes of Decisions 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 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).
§ § 14.314.8. [Reserved].
Source The provisions of these § § 14.314.8 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271471) to (271474).
§ § 14.2114.23. [Reserved].
Source The provisions of these § § 14.2114.23 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271474) to (271475).
§ 14.24. [Reserved].
Source The provisions of this § 14.24 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 (271475) to (271476).
§ 14.25. [Reserved].
Source The provisions of this § 14.25 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 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 (271476) to (271479).
§ 14.31. [Reserved].
Source The provisions of this § 14.31 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (242017).
§ 14.32. [Reserved].
Source 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).
Notes of Decisions 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 students 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 students 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 districts 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
Reimbursement to a parent for the cost of educating their child at a Quaker sponsored school where the school district failed to offer a free appropriate public education in accordance with its obligations under the Individuals with Disabilities Education Act did not violate the First Amendment to the United States Constitution by having a principal or primary effect that advances religion. Such reimbursement did not in any way advance religion and the only matter advanced was the determination by Congress that a disabled child should receive a free appropriate public education. Christen G. v. Lower Merion School Dist., 919 F. Supp. 793 (1996).
§ 14.33. [Reserved].
Source 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).
Notes of Decisions Transportation for Special Education Students
School district boundaries are not determinative of a districts obligation to meet a particular request for transportation as a related service. Clearly, where necessary to some integral part of the students 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).
A school district is not obligated to provide transportation for a special education student to and from the residence of both the students father and mother when the father resides outside the boundaries of the district. North Allegheny School District v. Parents, 687 A.2d 37 (Pa. Cmwlth. 1996).
§ 14.34. [Reserved].
Source The provisions of this § 14.34 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 page (256364).
§ 14.35. [Reserved].
Source 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).
Notes of Decisions In school suspensions are considered defacto suspensions when the child repeatedly leaves school instead of attending the suspension. Defacto suspension days are included in calculating the allowable 15 cumulative absent days per year. Big Beaver Falls Area School District v. Jackson, 624 A.2d 806, 808 (Pa. Cmwlth. 1993).
§ 14.36. [Reserved].
Source 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).
Notes of Decisions Failure to Include Program
School districts failure to include individualized behavior management programs in a students individualized education programs and failure to conduct a neurological evaluation to determine a possible effect of the students head injury despite its knowledge of that injury was a violation and established that the school district failed to take reasonable steps to mainstream the dent in the regular classroom with supplementary aids and services. Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Cmwlth. 1998).
§ 14.37. [Reserved].
Source The provisions of this § 14.37 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (249384) and (271481).
§ 14.38. [Reserved].
Source The provisions of this § 14.38 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 page (271481).
§ 14.39. [Reserved].
Source The provisions of this § 14.39 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (271481) to (271482).
§ 14.41. [Reserved].
Source 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).
Notes of Decisions 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).
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).
§ 14.42. [Reserved].
Source 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).
Notes of Decisions 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 students 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 students 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
Mother of a student was entitled to reimbursement for tuition she paid to an out-of-State residential educational facility, where the program offered by the school district had not been effective because the students social and emotional needs were not addressed by his individual educational program (IEP) and because his behavior continued to worsen. Stroudsburg Area School District v. Jared M., 712 A.2d 807 (Pa. Cmwlth. 1998).
§ 14.43. [Reserved].
Source 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).
Notes of Decisions 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).
§ 14.44. [Reserved].
Source 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).
Notes of Decisions 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).
§ 14.45. [Reserved].
Source The provisions of this § 14.45 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (202979).
§ § 14.51 and 14.52. [Reserved].
Source The provisions of these § § 14.51 and 14.52 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (202979) to (202980).
§ 14.53. [Reserved].
Source The provisions of this § 14.53 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 (202980) to (202982).
§ § 14.5414.56. [Reserved].
Source The provisions of these § § 14.5414.56 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (202982) to (202986).
§ 14.61. [Reserved].
Source The provisions of this § 14.61 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (202986) and (267309) to (267310).
§ 14.62. [Reserved].
Source The provisions of this § 14.62 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 page (267310).
§ 14.63. [Reserved].
Source 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).
Notes of Decision 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).
§ 14.64. [Reserved].
Source 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).
Notes of Decisions 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 parents 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 panels 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 students education through the date of the district courts final order. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).
Two-Tiered Review
Under the two-tier due process hearing procedure, the Appeals Panel is the ultimate factfinder and charged with making an independent examination of the evidence in the record; therefore, the Appeals Panel is not bound by the decision of the hearing officer, and its scope of review is not restricted to determining whether the hearing officers factual findings are supported. Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Cmwlth. 1998).
§ 14.65. [Reserved].
Source The provisions of this § 14.65 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (249392) and (222351).
§ 14.66. [Reserved].
Source The provisions of this § 14.66 reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (222351) and (271485).
§ 14.67. [Reserved].
Source 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).
Notes of Decisions Reimbursement
School district was required to reimburse an exceptional students 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).
According to the plain language of this section, parents are entitled to reimbursement for a private evaluation only if the private evaluation was sought as the result of a disagreement with an MDE and if the private evaluation shows the school districts MDE to be inappropriate. Because the parent had the child evaluated on their own initiative and not as the result of any disagreement and since the MDE was found to be appropriate, the parent was not entitled to reimbursement under this section. Kozak v. Hampton Township Sch. Dist., 655 A.2d 641 (Pa. Cmwlth. 1995), appeal denied, 665 A.2d 471 (Pa. 1995).
§ 14.68. [Reserved].
Source The provisions of this § 14.68 amended April 8, 1994, effective April 24, 1993, 24 Pa.B. 1838; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial page (271486).
§ 14.71. [Reserved].
Source The provisions of this § 14.71 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. 6021. Immediately preceding text appears at serial page (271487).
§ § 14.7214.74. [Reserved].
Source The provisions of these § § 14.7214.74 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:
ActThe Early Intervention Services System Act (11 P. S. § § 875-101875-503).
AgencyAn intermediate unit, school district, approved private school, State-operated program or facility or other public (excluding charter schools under 24 P. S. § § 17-1701-A17-1732-A) or private organization providing educational services to children with disabilities or providing early intervention services.
Age of beginnersThe minimum age established by the school district board of directors for admission to the districts first grade under § 11.15 (relating to admission of beginners).
DepartmentThe Department of Education of the Commonwealth.
Developmental areasCognitive, communicative, physical, social/emotional and self-help.
Developmental delayA 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 childs 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 childs 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.
ESYExtended school year.
Early intervention agencyAn 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 servicesAs defined in the act.
Eligible young childA 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).
IEPIndividualized education program.
ISTInstructional support team.
MDTMultidisciplinary team.
Mutually agreed-upon written arrangementAs defined in the act.
ParentThe term as defined in 34 CFR 300.20 (relating to parent) and also includes individuals appointed as foster parents under 42 Pa.C.S. § § 63016311 (relating to the Juvenile Act).
SecretaryThe Secretary of the Department.
Student with a disabilityA child of school age who meets the criteria in 34 CFR 300.7 (relating to a child with a disability).
Source The provisions of this § 14.101 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References The provisions of this § 14.102 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Notes of Decision Free Appropriate Public Education (FAPE)
By adopting the Federal regulations relating to assistance to states for education of children with disabilities, Pennsylvania seeks to ensure all children with disabilities the right to a free appropriate public education (FAPE). Delaware Valley School District v. Daniel G., 800 A.2d 989 (Pa. Cmwlth. 2002).
§ 14.103. Terminology related to Federal regulations.
For purposes of interfacing with 34 CFR Part 300 (relating to assistance to states for the education of children with disabilities), the following term applies, unless the context clearly indicates otherwise:
Local educational agencyWhere 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).
Source The provisions of this § 14.103 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References 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 districts 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.
Source The provisions of this § 14.122 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
§ 14.123. Evaluation.
(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 300.531300.535, 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.
Source The provisions of this § 14.123 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Notes of Decisions Basis for Decision
The panels 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).
Cross References This section cited in 22 Pa. Code § 14.122 (relating to screening); 22 Pa. Code § 14.153 (relating to evaluation); and 22 Pa. Code § 14.161 (relating to purchasing conferences).
§ 14.124. Reevaluation.
(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.
Source 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 students 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.
Source The provisions of this § 14.131 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Notes of Decisions IEP Compliance
School district was required to pay tuition and fees for special-education student in a transitional program after high school for only 1 year, not indefinitely, where payment for more than 1 year would have exceeded what was required for compliance with students individualized education program (IEP). Susquehanna Township School District v. Frances J., 823 A.2d 249, 255-256 (Pa.Cmwlth. 2003).
§ 14.132. ESY.
This section sets forth the standards for determining whether a student with disabilities requires ESY as part of the students 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) Regressionwhether 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) Recoupmentwhether 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 students 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 students withdrawal from the learning process.
(vii) Whether the students 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 students 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.
Source 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 supportServices for students with the disability of autism.
Blind and visually impaired supportServices for students with the disability of visual impairment, including blindness.
Deaf and hard of hearing impaired supportServices for students with the disabilities of deafness or hearing impairment.
Emotional supportServices for students with a disability whose primary identified need is emotional support.
Full-timeSpecial 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.
ItinerantRegular 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 supportServices for students with a disability whose primary identified need is academic learning.
Life skills supportServices for students with a disability focused primarily on the needs of students for independent living.
Multiple disabilities supportServices for students with multiple disabilities.
Part-timeSpecial 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 supportServices designed primarily to meet the needs of students with the disabilities of orthopedic or other health impairment.
ResourceRegular 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 supportServices for students with the disability of speech and language impairment.
Source The provisions of this § 14.142 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References This section cited in 22 Pa. Code § 14.141 (relating to terminology related to educational placement).
§ 14.143. Disciplinary placements.
(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 students 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.
Source The provisions of this § 14.143 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References 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 § § 14.15214.158 (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.
Source The provisions of this § 14.152 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References The provisions of this § 14.153 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References The provisions of this § 14.154 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References The provisions of this § 14.155 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Notes of Decisions Least Restrictive Environment
The definition of the mandated least restrictive environment in this Commonwealths 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).
Cross References The provisions of this § 14.156 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References The provisions of this § 14.157 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References This section cited in 22 Pa. Code § 14.151 (relating to purpose).
§ 14.158. Data collection.
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.
Source The provisions of this § 14.158 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Cross References 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 300.503300.505 (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 districts 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.
Source The provisions of this § 14.161 adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021.
Notes of Decision 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).
Cross References 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).
Notes of Decisions 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).
Cross References 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).
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