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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.
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