“Changes in Special Education Law”
By Dennis C. McAndrews, Esquire
In 2004, Congress re-authorized the Individuals with Disabilities Education Act (IDEA). In 2008, the Pennsylvania State Board of Education issued new regulations to conform with and expand upon IDEA’s changes. On July 1, 2008, Pennsylvania’s new Chapter 14 regulations went into effect.
The following discussion outlines major changes in special education since Pennsylvania issued its new regulations in 2008 under Chapter 22 of the Pennsylvania Code.
Section 14.103. Student in Private School.
When a parent places a child in a private school, the intermediate unit where such private school is located is considered the local education agency obligated to find, identify and offer “equitable participation” services to the student. (See also 22 Pa. Code Section 14.121(d))
Section 14.104. Special Education Plans.
School district’s special education plans must now include: 1) whatever early intervention services the school district provides; 2) procedures for identifying children with specific learning disabilities; 3) access to a full continuum of educational placements; 4) district provided parent training; and 5) policies and procedures to prevent over-identification techniques and appropriate responses to student behavior that may require immediate intervention for districts with a disproportionate representation by race and ethnicity of children with disabilities.
Section 14.105(a). Paraprofessionals.
Under this Section, the Pennsylvania Department of Education now defines a special education paraprofessional as either “instructional” or “personal care assistant” (PCA). The regulations defines an instructional paraprofessional as “a school employee who works under the direction of a certificated staff member to support and assist in providing instructional programs and services to children with disabilities or eligible young children.”
An “instructional” paraprofessional not only includes individuals who provide “one-on-one or group review of material taught by certificated staff” but also includes those who provide “classroom management and implementation of positive behavior support plans.”
A PCA “provides one-to-one support and assistance to a student, including support and assistance in the use of medical equipment (e.g., augmentative communication devices; activities of daily living; and monitoring health and behavior).”
Effective July 1, 2010, all “instructional paraprofessionals” who do not possess at least an associate’s degree or two years of “post-secondary study,” must meet “a rigorous standard of quality as demonstrated through a State or local assessment.” The requirement fulfills the credentialing standard established under the 2004 Amendments to the IDEA for paraprofessionals working in special education programs. See 34 U.S.C. Section 300.156(b).
The Pennsylvania Department of Education also now requires PCAs to provide evidence of 20 hours of staff development activities related to their assignment each school year.
Section 14.108. Parent Access to Classrooms.
Parents are now allowed “reasonable access” to their child’s classroom. While “reasonable access” is not defined, it does not allow for unrestricted access. Local educational agencies can establish policies that limit such visits.
Section 14.123. Evaluations.
The former sixty school day time frame for completion of multi-disciplinary team evaluations and re-evaluations has been replaced by a sixty calendar day time frame, not including summer months. Regarding initial evaluations, the sixty calendar day time frame commences upon receipt of a signed permission to evaluate from the parents.
Parents can request an evaluation in writing at any time and the school must issue a permission to evaluate; however, if a parent requests an evaluation orally to any professional employee or administrator, then the school must issue a permission to evaluate to the parent within 10 calendar days of the oral request.
The evaluation must be given to parents at least 10 school days prior to the meeting of the IEP team.
Section 14.131(a)(5). Transition Planning.
Pennsylvania requires transition planning to begin at 14 years of age, as opposed to the age of 16 under IDEA. A transition plan must include appropriate measurable postsecondary goals related to training, education, employment and, when appropriate, independent living skills. Under the 2004 IDEA amendments, transition services must be designed “to be a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities…” Additionally, the transition services must be “based on the individual child’s needs.”
Section 14.133. Behavior.
Pennsylvania’s new regulations far exceed 2004-IDEA’s behavior support requirements. All students with disabilities that interfere with learning must have a positive behavior support plan based on a FBA that is part of the Individual Education Plan (IEP). In Pennsylvania all behavior support programs must 1) include research-based practices; 2) be based on a Functional Behavioral Assessment (FBA) and 3) use positive behavior techniques.
The new language also requires that restraints be a measure of last resort by which staff may physically assist a student with behavioral challenges. The definition of restraint states: “The application of physical force, with or without the use of any device, for the purpose of restraining the free movement of a student’s body. The term “restraint” does not include briefly holding, without force, a student or eligible young child in order to calm or comfort him, guiding a student or eligible young child to an appropriate activity, or holding student’s or eligible young child’s hand to safely escort her from one area to another.”
If a restraint is used to control “aggressive behavior,” the school district must notify the parents and convene a meeting of the IEP team within 10 school days of the behavior causing the use of restraints unless the parent waives the meeting in writing. At the meeting the team must consider whether the child needs a FBA, a re-evaluation, a new positive behavior plan or a change in placement.
Section 14.145. Least Restrictive Environment.
Pennsylvania regulations require that children with disabilities are educated in regular classrooms with nondisabled children to the maximum extent appropriate. The mainstreaming requirement of the Pennsylvania regulations prohibits a school from placing a child with disabilities outside of a regular classroom if educating the child in the regular classroom, with supplementary aids and support services, can be achieved satisfactorily. Compliance with integrating children with disabilities in regular classrooms is often referred to as placement in the least restrictive environment (LRE).
When determining the LRE, a school must provide a continuum of placements to meet the needs of handicapped children. Also, a school cannot determine that a student requires separate education because the child cannot achieve at the same level as classmates who do not have disabilities if the child can make meaningful progress in the goals included in the student’s IEP with the full range of supplementary aids and services. Further, a student may not be removed from or determined to be ineligible for placement in a regular education classroom solely because of the nature or severity of the student’s disability. Finally, a school must provide access to a full continuum of placement options.
Sections 14.162. Procedural Safeguards: Due Process Hearings.
Section 14.162 eliminated 1) the pre-hearing conference requirement and 2) the two-tier review system. Effective July 1, 2008, all due process hearings are considered state-level proceedings over which a single, full-time hearing officer presides. All appeals from the hearings proceed within ninety days to either federal district court of the Pennsylvania Commonwealth Court. Pendency applies when a parent requests a due process hearing.
If you would like to receive an electronic copy or more information regarding this article, please visit our website at http://www.mcandrewslaw.com/ or call [ln::phone].