THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY STURLA, McILVAINE SMITH, ROEBUCK, McCALL, KOTIK, BRENNAN, BRIGGS, BUXTON, CALTAGIRONE, CARROLL, D. COSTA, DALEY, DeLUCA, DePASQUALE, DeWEESE, J. EVANS, FABRIZIO, FREEMAN, GIBBONS, GINGRICH, HALUSKA, HARKINS, HORNAMAN, JOSEPHS, KIRKLAND, KORTZ, KULA, LEVDANSKY, MAHONEY, MANDERINO, MANN, MATZIE, MILLARD, MILNE, MURPHY, MUSTIO, M. O'BRIEN, PARKER, PASHINSKI, PAYNE, PAYTON, READSHAW, SANTONI, SIPTROTH, K. SMITH, SONNEY, SWANGER, WANSACZ, YOUNGBLOOD, LENTZ AND CURRY, APRIL 27, 2009

REFERRED TO COMMITTEE ON EDUCATION, APRIL 27, 2009  

AN ACT

Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An

act relating to the public school system, including certain

provisions applicable as well to private and parochial

schools; amending, revising, consolidating and changing the

laws relating thereto," in reimbursement by Commonwealth and

between school districts, further providing for definitions;

and providing for special education funding for student

achievement and instruction of eligible students in regular

classrooms and for special education accountability to

Commonwealth taxpayers.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 2501(29) of the act of March 10, 1949

(P.L.30, No.14), known as the Public School Code of 1949, added

July 9, 2008 (P.L.846, No.61), is amended and the section is

amended by adding clauses to read:

Section 2501.  Definitions.--For the purposes of this article

the following terms shall have the following meanings:

* * *

(29)  "Location Cost Metric." An index of geographic cost

differences for each county as published by the department on

its publicly accessible Internet website [on February 5, 2008]

in February of each year. The index shall be published in the

Pennsylvania Bulletin no later than thirty (30) days after the

effective date of this clause.

* * *

(31)  "Special Education Average Daily Membership." Shall be

computed to determine the number of eligible students in each

school district in accordance with rules of procedure as

established by the Secretary of Education. For the purpose of

calculating the special education funding allocation under

section 2509.13, the computation shall be adjusted for each

level of instruction for eligible students as follows:

(i)  Half-time prekindergarten and half-time kindergarten:

0.50.

(ii)  Full-time prekindergarten, full-time kindergarten and

prekindergarten or kindergarten level totaling full-time through

multiple placements: 1.00.

(iii)  Elementary and secondary: 1.00.

(32)  "Actual Special Education Spending." An amount equal to

a school district’s total annual expenditures for special

education in all functional classifications for students with

disabilities, as designated in the Manual of Accounting and

Related Financial Procedures for Pennsylvania School Systems.

(33)  "Base Cost per Student." The cost of educating an

average student in Pennsylvania without special needs to meet

State performance expectations as originally determined in the

final revised Statewide Costing-out Study of 2007 performed

pursuant to section 2599.3 and as adjusted annually for the

fiscal year in the formula for basic education funding.

(34)  "Eligible Student." A student with a disability

eligible for special education under Federal and State law.

(35)  "Modified Special Education Average Daily Membership"

or "Modified SEADM." The sum of the following products:

(i)  fifty-two one-hundredths (0.52) and the school

district’s special education average daily membership in the

funding year;

(ii)  twenty-six one-hundredths (0.26) and the school

district’s special education average daily membership in the

school year prior to the funding year;

(iii)  thirteen one-hundredths (0.13) and the school

district’s special education average daily membership two (2)

school years prior to the funding year;

(iv)  six one-hundredths (0.06) and the school district's

special education average daily membership three (3) school

years prior to the funding year; and

(v)  three one-hundredths (0.03) and the school district's

special education average daily membership four (4) years prior

to the funding year.

(36)  "Performance Indicators." Measurable annual objectives

established by the Department of Education pursuant to section

612(a)(15) of the Individuals with Disabilities Education Act

(Public Law 91-230, 20 U.S.C. § 1412(a)(15)), to assess progress

toward achieving State goals for the performance of eligible

students.

(37)  "Public Notice." Full and timely release of information

and documents for public access at a minimum through publication

by the Department of Education:

(i)  in the Pennsylvania Bulletin;

(ii)  on its publicly accessible Internet website for no less

than a duration of twelve (12) months; and

(iii)  through its timely issuance of a related Statewide

press release.

(38)  "Regular Classroom." A classroom in a regular school

operated primarily for students who are not eligible for special

education.

(39)  "Regular School." A neighborhood school, magnet school,

charter school, or other public school operated for all

students, not solely eligible students, in a school district.

(40)  "Special Education Plan." A comprehensive plan as well

as revisions, updates and amendments for all special education

personnel, programs, services and supports provided by each

school district for eligible students, filed by each district

with the Department of Education under this act and other

applicable Federal and State law, including 22 Pa. Code 14.104

(relating to special education plans).

(41)  "Student Achievement." Outcomes for eligible students

as measured by academic performance whenever possible in the

general education curriculum, acquisition of knowledge and

skills, progress toward graduation, accomplishment of

individualized education program goals, including appropriate

functional skills, and other factors.

Section 2.  The act is amended by adding sections to read:

Section 2509.13.  Special Education Funding for Student

Achievement and Instruction of Eligible Students in Regular

Classrooms.--(a)  The Department of Education shall determine a

special education adequacy target for each school district by

calculating the sum of the following:

(1)  A special education supplement determined by calculating

the product of:

(i)  the base cost per student;

(ii)  the school district's Modified SEADM; and

(iii)  one and thirty one-hundredths (1.3).

(2)  An adjustment for geographic price differences

calculated as follows:

(i)  Multiply the amount under clause (1) by the school

district's location cost metric or one (1), whichever is

greater.

(ii)  Subtract the amount under clause (1) from the product

under subclause (i).

(b)  The Department of Education shall determine a State

special education funding target for each school district by

calculating the product of:

(1)  the difference between the school district's special

education adequacy target determined under subsection (a) and

its actual special education spending for the funding year, or

zero, whichever is greater;

(2)  the school district's market value/personal income aid

ratio for the school year in which funding occurs;

(3)  the lesser of one (1) and the school district's funding

year equalized millage divided by the equalized millage that

represents the seventy-fifth percentile of the equalized millage

of all school districts in the funding year; and 

(4)  one and fifteen one-hundredths (1.15) for school

districts meeting the following criteria:

(i)  either providing instruction within the regular

classroom at least eighty percent (80%) of the school day for at

least sixty-five percent (65%) of eligible students, as averaged

for the two (2) most recent school years for which data is

available, or increasing the number of eligible students

receiving instruction within the regular classroom by at least

fifteen percent (15%) in the most recent school year for which

data is available; and

(ii)  in the most recent school year for which data is

available, performance by eligible students on State academic

assessments in reading and math, averaged for the entire

district, meeting State standards for adequate yearly progress

by any method approved by the Federal and State governments,

including, but not limited to, meeting the annual target, the

confidence interval, the safe harbor target, or by appeal.

(c)  The Department of Education shall submit a report to the

Governor and General Assembly recommending increased standards

for the criteria in subsection (b)(4), and the General Assembly

shall consider legislation revising the criteria, in any year in

which seventy-five percent (75%) of all school districts meet

the criteria and qualify for the one and fifteen one-hundredths

(1.15) factor for funding.

(d)  In furtherance of the General Assembly's commitment to

provide adequate special education funding that will ensure

equitable State and local investments in special education in

public schools, and in order to enable eligible students to

attain applicable Federal and State academic standards and to be

educated in regular classrooms when appropriate, it is the goal

of the Commonwealth to review and meet State special education

funding targets by fiscal year 2014-2015.

(e)  The Commonwealth shall pay to each school district a

special education funding allocation for the 2009-2010 school

year which shall consist of the sum of the following:

(1)  an amount equal to the district's special education

funding allocation for the 2008-2009 school year under section

2509.5; and

(2)  (i)  For a school district with 2007-2008 equalized

millage that is greater than or equal to twenty-four (24), which

represents the eightieth percentile of the equalized millage of

all school districts as of the effective date of this section,

for the 2008-2009 school year, sixteen and seventy-five one-

hundredths percent (16.75%) of the State special education

funding target determined under subsection (b).

(ii)  For a school district with 2007-2008 equalized millage

that is less than twenty-four (24), which represents the

eightieth percentile of the equalized millage of all school

districts as of the effective date of this section, for the

2008-2009 school year, ten percent (10%) of the State special

education funding target determined under subsection (b).

(f)  The Department of Education shall provide additional

funding for the 2009-2010 school year to any school district

where the amount under subsection (e)(2) provides an amount less

than the percentage increase in the school district's special

education funding allocation for the 2008-2009 school year under

section 2509.5. The amount of the additional funding shall be

the amount required so that the sum of subsection (e)(2) and

this subsection is at least equal to the percentage increase in

the school district's special education funding allocation for

the 2008-2009 school year under section 2509.5.

(g)  (1)  The Commonwealth shall appropriate additional

funding in each year for the Special Education Contingency Fund,

which is hereby established as a special fund in the State

Treasury. The appropriation for the fund shall be at one and

fifty one-hundredths percent (1.50%) of the total of special

education appropriations made pursuant to subsection (e) and

shall be made in addition to such total.

(2)  The Department of Education shall utilize the fund to

provide resources needed:

(i)  to partially meet extraordinary special education

expenses not anticipated through the special education funding

formula in this section for eligible students within the first

three (3) school years of eligibility for special education or

enrollment in a school district; and

(ii)  to the extent that the resources of the fund are not

issued to meet the needs determined by subclause (i), to provide

resources for school districts implementing programs or services

that serve as a model of excellence for meeting high standards

for student achievement through quality special education.

(3)  At least three-quarters of the fund shall be used for

the purposes under clause (2)(i) and no more than one-quarter

shall be used for the purposes under clause (2)(ii).

(4)  School districts may apply for resources through the

fund pursuant to procedures established by the Department of

Education. The Department of Education shall issue resources

from the fund only in response to such applications. The

Department of Education shall give priority to districts with a

relatively high percentage of students in poverty, annually

setting these criteria and granting a higher percentage of the

resources requested by such districts.

(5)  The Department of Education shall issue a comprehensive

annual report documenting use of the fund to the Governor and

all members of the General Assembly, and shall give public

notice about such report.

(6)  As used in this subsection, "extraordinary special

education expenses" are expenses that result from needs and

circumstances of an eligible student with significant

disabilities which are not ordinarily present in a typical

special education service and program delivery system and which

have costs exceeding the school district funding for special

education, in order to provide the student with an appropriate

education in the least restrictive environment.

Section 2509.14.  Special Education Accountability to

Commonwealth Taxpayers.--(a)  (1)  The Department of Education

shall determine the form and manner in which school districts

shall submit a special education plan and revisions, updates and

amendments to the special education plan pursuant to this

section. The special education plan shall be consistent with

other existing plans and reports required by the Department of

Education to the greatest extent possible, including those

required under 22 Pa. Code § 14.104 (relating to special

education plans). Special education plans shall be written in a

manner that is easy to use and understand by parents and the

public, including a general summary.

(2)  The Department of Education:

(i)  Shall review all special education plans and revisions,

updates and amendments.

(ii)  May provide recommendations to school districts.

(iii)  Shall approve, disapprove or conditionally approve the

special education plan for each district within ninety (90)

calendar days of receipt.

(iv)  Shall provide technical assistance to any school

district for the development or implementation of a special

education plan upon request by a district or when a special

education plan is disapproved or conditionally approved, with

extra assistance provided for smaller districts with more

limited special education administrative staff.

(v)  Shall provide a written explanation to the board of

school directors of any school district whose special education

plan is disapproved or conditionally approved.

(vi)  Shall give public notice of the decisions and actions

made pursuant to this section.

(3)  A school district shall timely amend and resubmit its

special education plan as necessary until approved by the

Department of Education, if its plan has been:

(i)  disapproved; or

(ii)  conditionally approved and it has been so directed by

the Department of Education.

(4)  The Department of Education shall approve any school

district special education plan and revisions, updates and

amendments that, in its determination, does the following:

(i)  Meets the requirements of this section, including

subsections (b)(2) and (c)(2).

(ii)  Describes and addresses, with reference to specific

schools, grade levels and populations of students most in need

in the district, the programs and strategies that are most

likely to make progress in resolving student achievement

challenges for eligible students and the challenges of placing

eligible students in regular classrooms with supports as

identified in the most recent measurements of student outcomes,

school district performance and other performance indicators.

(iii)  Establishes a reasonable budget, timeline and

benchmarks for implementation, with the budget considered in

evaluating the special education plan but not subject itself to

approval by the Department of Education.

(iv)  Documents progress made in addressing student needs and

improving student outcomes since the district last submitted a

special education plan, revision, update or amendment to the

Department of Education.

(5)  The Secretary of Education shall involve as appropriate

in special education monitoring, support, intervention,

technical assistance and special education plan review by the

Department of Education, the staff in relevant offices, bureaus,

and divisions of the Department of Education, as well as staff

in intermediate units and consultants, and shall neither

delegate nor limit these functions solely to the Bureau of

Special Education. The secretary shall have the authority to

contract for additional assistance with intermediate units and

consultants for these purposes, so long as such contracts do not

create a conflict of interest or supplant existing service or

program obligations.

(6)  In addition to public notice provided under clause (2)

(vi), the Department of Education shall also give public notice

annually of the names of the districts in which it is providing

monitoring, support, intervention, technical assistance and

fiscal penalties related to special education pursuant to this

section and a detailed description of these Department of

Education activities in each district.

(b)  (1)  Each school district shall submit to the Department

of Education for approval pursuant to subsection (a) a

comprehensive special education plan every three (3) years,

annual revisions and updates to the special education plan and

other amendments as needed. The special education plan and

revisions and updates shall be submitted according to deadlines

established in or pursuant to this section, and shall

incorporate other existing plans and reports required by the

Department of Education to the greatest extent possible. A full

and accurate budget, timeline and benchmarks for implementation

must accompany all special education plans and must be revised

and updated as required and amended as needed.

(2)  The special education plan shall address and measure how

the needs of eligible students are being met based on all

performance indicators as defined in this act and in Federal

law.

(3)  The Department of Education shall hold school districts

accountable for the effective use of resources to meet student

needs by:

(i)  Reviewing and monitoring implementation of all special

education plans.

(ii)  Providing support, intervention, and technical

assistance in districts failing to meet student needs based on

performance indicators.

(iii)  Identifying at any time and at least annually all

districts failing to adequately implement their special

education plans or not making annual progress to meet student

needs in accordance with this section.

(iv)  Determining whether to withhold up to five percent (5%)

of all Federal and State special education funding for districts

identified pursuant to subclause (iii), while the identified

problems remain unresolved. If the Department of Education

determines that a district is making substantial progress toward

resolving the identified problems, it shall restore no more than

six (6) months of the withheld funding retroactively.

(c)  (1)  By August 15, 2009, and by April 15 of each year

thereafter, each school district receiving an increase in its

State special education funding allocation of more than the

index shall update its special education plan based on overall

circumstances, shall also revise the special education plan to

show in detail how the increase above the index will be used and

shall submit the updates and revisions to the Department of

Education for approval pursuant to subsection (a). The special

education plan, update or revision shall be accompanied by a

budget, timeline and benchmarks for implementation and shall

incorporate other existing plans and reports required by the

Department of Education to the greatest extent possible.

(2)  Any increased allocation above the index received in any

given year shall be used by each district for one or more

research-based programs and supports expressly benefiting

eligible students, contributing to achievement of performance

indicators, and approved by the Department of Education in

guidelines issued by July 15, 2009, and by February 15 of each

year thereafter. Research-based programs and supports approved

by the Department of Education based on these criteria shall

include or shall be related to:

(i)  Adapting curricula and providing co-teaching in regular

classrooms for the purpose of including eligible students.

(ii)  Providing assistive technology and support services to

meet eligible student needs.

(iii)  Placing and serving eligible students in regular

classrooms with supports.

(iv)  Reducing caseloads for special education teachers and

related services personnel for the purpose of including eligible

students in regular classrooms.

(v)  Reducing the teacher-pupil ratio in regular classrooms

for the purpose of including eligible students.

(vi)  School-wide positive behavior supports for the benefit

of eligible students.

(vii)  Supplementary aids and services to support including

eligible students in regular classrooms. 

(viii)  Professional development to implement the strategies

and programs approved through or listed in this clause.

(3)  The special education plan, update or revision submitted

pursuant to this subsection by each district shall document

that:

(i)  The increased allocation above the index is used for the

purposes approved through or listed in clause (2) and is used to

supplement and not supplant other resources.

(ii)  The district is maintaining its effort for special

education expenditures by showing that the aggregate special

education expenditures within the district from local funds for

the funding year will not be less than the corresponding amount

for the fiscal year preceding the funding year. After written

application by a district with public notice occurring both upon

application and upon the subsequent decision by the Secretary of

Education, the secretary may waive only for one (1) fiscal year

and up to the amount of expenditures directly related to the

circumstances the maintenance of effort requirements of this

subclause if the secretary determines that a waiver would be

equitable due to exceptional or uncontrollable circumstances,

such as a decrease in eligible students or the lawful

termination of special education obligations for a student with

an exceptionally costly program.

(4)  The Department of Education shall hold school districts

accountable for the effective use of resources to meet student

needs by:

(i)  Upon disapproving a district's special education plan,

update or revision submitted pursuant to this section,

withholding the portion of the annual State increase in special

education funding which exceeds the index until such a time as a

special education plan, update or revision is approved or

conditionally approved.

(ii)  Reviewing and monitoring implementation of all special

education plans, including district compliance with clause (3).

(iii)  Providing support, intervention and technical

assistance in districts failing to meet student needs based on

performance indicators or failing to comply with clause (3).

(iv)  Identifying at any time and at least annually all

districts failing to adequately implement their special

education plans, failing to comply with clause (3) or not making

annual progress to meet student needs in accordance with this

section.

(v)  For districts identified pursuant to subclause (iv),

determining whether to review the entire special education plan

and take accountability actions pursuant to subsection (b)(3).

(d)  To discourage the inappropriate overidentification of

children for special education, the Department of Education

shall automatically conduct a thorough review of the special

education plan in consultation with the school district and

shall take appropriate remedial action, including withholding up

to five percent (5%) of all Federal and State special education

funding, for any district increasing the ratio of its special

education average daily membership to its average daily

membership for all students in the most recent school year for

which data is available by more than ten percent (10%) over the

previous year or for any district increasing this ratio by an

average of more than five percent (5%) annually during the most

recent five (5) year period, unless the increase is determined

by the Department of Education after consultation with the

district to be justified.

(e)  The Department of Education may release special

education funding to a school district in periodic payments in

the current and subsequent years, upon finding that the district

is failing to adequately develop and implement special education

plans, is not making annual progress to meet student needs in

accordance with this section, is found to be overidentifying

children pursuant to subsection (d) or is failing to comply with

subsection (c)(3).

(f)  The Department of Education shall issue a comprehensive

annual report on special education funding, special education

plans and special education accountability issues to the

Governor and all members of the General Assembly and shall give

public notice about such annual report.

(g)  The Department of Education shall issue to any affected

school district a notice specifying the Department of

Education's decisions and actions pursuant to this section and

the rationale for such decisions and actions. A school district

may file a written complaint with the Secretary of Education

about the Department of Education's decisions and actions

regarding that district made pursuant to this section. The

complaint must be submitted to the secretary's office within

thirty (30) calendar days of the Department of Education's

decision or action or within thirty (30) calendar days of

receiving the notice, whichever is greater. The secretary shall

consider the complaint, consult with the district and, within

thirty (30) calendar days after receiving the complaint, issue a

written complaint decision addressing the concerns and claims

made in the complaint, explaining the judgment of the Department

of Education in response to these concerns and claims and

specifying the opportunity for a subsequent hearing under 2

Pa.C.S. Chs. 5 Subch. A (relating to practice and procedure of

Commonwealth agencies) and 7 Subch. A (relating to judicial

review of Commonwealth agency action) and 1 Pa. Code Part II

(relating to general rules of administrative practice and

procedure). If requested, the Department of Education shall then

convene a hearing within thirty (30) calendar days after the

receipt of a district's hearing request following its written

complaint decision. The Department of Education shall render a

written hearing decision within thirty (30) calendar days

following the hearing.

(h)  Nothing in this section shall supersede or preempt any

provisions of a collective bargaining agreement between a school

entity and an employe organization in effect on the effective

date of this section.

Section 3.  Within 60 calendar days following the effective

date of this act, the Secretary of Education shall propose

regulations for promulgation by the State Board of Education

which implement this act.

Section 4.  This act shall take effect immediately.