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Legislative Testimony: Chapter 14 Proposed Changes

Before the House Education Committee
Sept. 27, 2007

Emily J. Leader, PSBA Deputy Chief Counsel

Good morning Chairmen Roebuck and Stairs and members of the House Education Committee. My name is Emily Leader and I am the Deputy Chief Counsel for the Pennsylvania School Boards Association (PSBA). Thank you for inviting PSBA to testify on these important regulations regarding the education of children with disabilities. Our testimony today, as well as the comments we have submitted to the State Board of Education, are based on conversations with school solicitors who are experienced in the practice of special education law, as well as on statements from other organizations, including advocacy organizations, that have commented on the regulations thus far in the process. In the course of all of these discussions, many concerns have been laid to rest and some have surfaced.

At the outset, let me also say that it is crucial that these regulations be written as clearly as possible. Any provision that is open to interpretation or where the intention is not expressed clearly will likely end up being litigated in court. For the same reason, and for reasons of cost containment to school districts and taxpayers, it is also important that state regulations incorporate federal regulations wherever practical. Because federal regulations represent minimum requirements, it is likely that any "non-incorporation" will result in greater costs and less flexibility for Pennsylvania's school entities and taxpayers. However, where there is a perceived need to exceed federal regulation, all parties should agree that the action is warranted and that additional funding may be necessary to fully implement those provisions.

There are many issues addressed in the written testimony, but for purposes of today's hearings, I would like to summarize those issues that are most important for PSBA:

14.145. Least Restrictive Environment.
One of the cornerstones of federal special education law - the Individuals With Disabilities Education Act (IDEA) - is that students with disabilities receive their education in the least restrictive environment. While PSBA strongly supports this maxim, it is our position that s ome of the requirements of this section go beyond or fail to properly articulate the LRE requirements of federal law (34 CFR 300.114) as interpreted by Oberti v. Board of Education of Clementon , 995 F. 2d 1204 (3 rd Cir. 1993). Oberti set the legal standard for determining whether the LRE requirements of IDEA have been met in an individual case. No subsequent Third Circuit or United States Supreme Court case has expanded or overruled Oberti. The amendments as written are likely to cause students to be placed inappropriately in violation of IDEA and to retain them in classes when it is clear that they are no longer deriving meaningful educational benefit from an IEP, even though it was supported with appropriate supplemental aids and services. Specifically, the paragraphs do not mention that placements with nondisabled peers are to be made to the maximum extent "appropriate," which is what the federal law requires.

As written, the amendments suggest that the proper standard for determining whether a student can be educated in a regular education setting is if the student can, with appropriate aids and services, make progress in the goals included in the student's IEP. If adopted, these amendments would set a different standard for the least restrictive environment for Pennsylvania's disabled students than what is in the federal law and what the courts have ruled. This would also increase the likelihood of litigation against school districts when a particular student should, in fact, be receiving special education outside of a regular education classroom for all or part of the school day and the parents dispute this position. The federal law on this is strong and clear, but the proposed regulation will likely force school districts to choose between compliance with this regulation or compliance with the Individuals with Disabilities Education Act. This is untenable

While it is true that a student must make progress toward the goals in an IEP to receive a free and appropriate public education (FAPE), it is our concern that the argument will be made by some that de minimus or trivial progress in the IEP supports maintenance of a student in a regular education class. For any student to receive FAPE, the IEP must provide significant learning and confer meaningful benefit, gauged in relation to a student's potential. See, Ridgewood Board of Education v. N.E., 172 F. 3 rd 238, 247 (3 rd Cir. 1999). To ensure that students are in fact provided with FAPE in the LRE appropriate to their needs, PSBA requests the following changes to subparagraphs §14.145 (a) (1) and (3):

•  To the maximum extent appropriate, children with disabilities must be educated with children who are nondisabled.

•  A student with disabilities shall only be removed from a regular education setting if the student cannot derive significant learning and meaningful educational benefit from specially designed instruction and supplemental aids and services provided pursuant to an appropriate IEP.

In its comments on this section in the proposed draft, IRRC asked why the word, "appropriate" was not used. They also asked who determines that a student can make progress and how the progress will be evaluated. PSBA further notes that §14.145 (a)(2) seems to be missing some words and does not make sense. Because of a lack of certainty over the intention of this paragraph, we do not offer any proposed revision.

§14.123. Evaluation. (b); (c) (60 school days) (oral requests)
One of the most talked about issues in the discussions over these proposed regulations is the amount of time school districts should have to complete an evaluation of a student once it is requested by his or her parents. PSBA commends the board for retaining a 60 school day period for completing an evaluation. Although there has been much argument for going to a shorter period on the grounds that a student will receive required services sooner, a proper evaluation may require multiple kinds of tests, classroom observation, acquisition and retention testing conducted over a period of days or weeks. In PSBA's view, it is more important that the evaluation be done properly than it is that it be done quickly. The present system has served students well, ensuring that proper and thorough evaluations are completed in a reasonable time frame.

Subsection (c) of this section allows parents to request an evaluation of their child at any time and the request shall be in writing. PSBA has not problem with that new requirement. However, this subsection goes on to say that if a parent makes an oral request to any professional employee or administrator, that individual must provide a copy of the evaluation request form to the parents within five days of the oral request.

It is unclear to PSBA what constitutes an oral request for an evaluation such that the requirements of this provision are triggered. Our concern is that litigation will arise over the amount of compensatory education due to a student, based on an allegation that a parent requested an evaluation orally and the school district failed to provide them with a form within five days. This section also references an "evaluation request form," which does not currently exist. Is the intent that a "Permission to Evaluate" form (a form that is currently used to obtain permission from parents for their child to be evaluated) be given to the parent who makes an oral request for an evaluation? We believe that a strong child find effort, together with ongoing parent education is the proper way to ensure parents know how to secure an evaluation. The provision as written is simply unworkable.

§14.405 Personnel (a) Paraprofessionals; (e) definitions and caseload chart
Subsection (a) would require all paraprofessionals who work under the direction of a certified staff member to support and assist in providing instructional programs and services to children with disabilities or eligible young children who are hired on or after July 1, 2008 to have completed at least 2 years of post-secondary study; possess an Associate Degree or higher; meet a rigorous standard of quality as demonstrated through a formal state or local academic assessment of knowledge in and ability to assist in instruction in reading, writing and mathematics or meet a rigorous standard of quality as demonstrated through a formal state or local academic assessment of knowledge and ability.

PSBA anticipates that school districts will incur significant increases in costs in connection with these requirements and will find it very difficult to find qualified applicants for these positions. At a minimum, these qualifications should be limited only to those paraprofessionals providing direct instruction to children and should exclude personal aides or paraprofessionals who support a student, teacher or classroom but do not provide any direct instruction. In their comments, IRRC questioned the costs of this requirement to school districts, the impact on current jobs, why these qualifications are necessary and the deadlines for implementation.

Subsection (e) continues the practice of including a classroom caseload chart in these regulations. We believe that the goal should be to retain the current chart, since school entities understand and have implemented the current chart for years. At the most, we believe that some of the terms used in the current chart may need to be changed to reflect more contemporary language, but does not change the meanings of terms.

§14.102 Purposes
The issues in this section surround the incorporation or "non-incorporation" of the federal regulations into this document. As mentioned earlier, we believe generally that incorporation of the federal regulations is a good thing because it will prevent our school entities from having to meet a higher standard than those in other states; however incorporation must be practical as well.

This section states that it is the intent of the board "to adopt Federal regulations by incorporation by reference to satisfy the statutory requirements under the Individual with Disabilities Act" and it makes several references to certain assurances. One of these, subsection 14.102(a)(1)(iv), is that school entities provide access to a full continuum of placement options as appropriate and necessary according to the child's IEP. We don't believe that the language accomplishes the intent of the Federal statute, which is that the child shall have access to a continuum of alternative placements to meet the needs of children with disabilities for special education and related services. Instead, the draft suggests that an individual IEP must contain a continuum of placements, which places an additional burden on the IEP that is intended to be met by the statute generally.

PSBA is also greatly concerned by the Board's decision not to incorporate a part of the Federal regulations that deals with a child status during proceedings. As you can imagine, with all the litigation that goes on in the world of special education, one question that arises is the status of a child when litigation over his or her placement is taking place. This status is known as pendency and the Board has chosen not to incorporate the Federal regulation that says, in general, that during litigation, the child involved in the complaint must remain in his or her current educational placement, unless the state or a local agency and the parents of the child agree otherwise. The issue here is a more specific issue of pendency. This deals with students applying for initial services that are transitioning from Part C of the IDEA to Part B and are no longer eligible for Part C services because of the age of the child.

Part C services are more therapeutic in nature and are provided to children from birth to age three. These services are often expensive and home-based. Rather than adopt the Federal regulation, which says that a public agency is not required to provide Part C services to a child that no longer qualifies for them by reason of his or her age, the board has adopted language based on a court ruling in Pardini v. Allegheny Intermediate Unit, 420 F3rd 181 (3 rd Cir. 2005) that children transitioning from the more home-based therapeutic Infants-and-Toddlers program under Part C of the IDEA to the more school-based preschool program under Part B, retain the right to have these more therapeutic Part C services maintained during the litigation of any dispute with a Part B agency about preschool services. Preschool service providers now find themselves providing expensive therapies, often home-based -- which are not appropriate to preschool-aged children receiving Part B services -- either to avoid protracted litigation or during the pendency of litigation over the preschool program. If left as is, it is likely that Part B funding will be diverted to providing Part C services to preschool-aged children. PSBA anticipates that this will further spill over into school-aged children's IEPs, as parents continue to dispute a program and retain pendency in Part C programs. There is a significant cost to providers that is not accounted for in Part B funding, but more importantly, this ignores the IDEA's inherent scheme that anticipates services should shift at age three from intensive therapeutic modalities to preschool services geared to readying a child for school.

§14.101 Definitions - "Early Intervention Services"
IRRC agreed with PSBA's comment that this proposed definition creates ambiguities and a potential conflict between the regulation and the underlying statutes. The definition section of the Early Intervention Services Systems Act ("Act") includes a comprehensive, 38-line definition of early intervention services, 11 P.S. §875-103. This definition in turn incorporates whole sections of the IDEA regulations. The draft before us attempts to summarize this complex definition, and by doing so, fails to include many relevant components and is potentially misleading. For example, phrases like, "appropriate to the child's needs," and "to the maximum extent consistent with the child's abilities" are missing, and the only effort to reference a necessary continuum of placements is a nod to the fact that LRE might be in the child's home. Thus, the requirements of the federal regulations at 34 C.F.R. 300.115 (continuum of alternative placements) and 34 C.F.R. 300.116 (Placements) are inadequately represented in the definition found in the draft.

It is our conclusion that there is no adequate way to convey all aspects of the definition of early intervention services in a summary definition. PSBA has urged the board to withdraw the definition in the proposed regulations and insert the definition, "As defined in the Act at 11 P.S. §875-103."

§14.162. Impartial Due Process Hearing and Expedited Due Process Hearing
There are a number of other issues mentioned in my written comments, but I did want to mention one last item - the due process hearing.

There is a split among school entity attorneys in Pennsylvania regarding the continued viability of the Special Education Appeals Panel. Some believe this inexpensive process is of value to parties, but that the system should be revamped to create precedential decisions that parties could rely on in pursuing cases. Others argue this system is no longer viable at all due to perceived bias, regular splits of opinion among the panels that result in confusion and uncertainty, occasionally injudicious behavior and the sense that one can routinely predict, based on which panel gets a case, whether the school district or the parent will win. The current proposal restores the second tier appeal. PSBA urges that language be added to forbid the practice of having fixed panels and require that a majority of Appeals Panel members must sign off on decisions. Qualifications for Appeals Panel members should be established by regulation, together with annual training requirements identical to those recommended below for hearing officers. Appeals Panel members should be subjected to peer review of decisions and conduct.

Regulations should also set out and strengthen the qualifications, objectivity and continuing education of special education hearing officers. Hearing officers should be required to follow articulated standards of conduct and be subjected to peer review of hearing decisions and conduct. Parents, parent attorneys, advocates, LEAs and their attorneys should be involved in the revision and maintenance of a fair and high quality hearing and appeals system. My written comments contain several suggestions on areas for which training of Appeals Panel members should be required.

With regard to the incorporation of the administrative procedures of Title I Pa. Code Part II, PSBA sees this as a promising step in the right direction. However, due to the specialized nature of due process hearings and the timelines involved, some of the provisions should be expressly modified to fit the unique nature of these hearings. For example, it might not be possible to submit written motions five days before a hearing when the hearing must be held within thirty days of filing the complaint. This will require more in depth analysis to ensure the federal procedural requirements incorporated by reference into these amendments mesh with the state rules of administrative practice and procedure.

I thank you for the opportunity to make comments and submit this testimony and I would be happy to answer any questions you now have.