PRIOR PRINTER'S NO. 1651

PRINTER'S NO.  2375

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

704

Session of

2009

  

  

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, CURRY, COHEN, HESS, JOHNSON, WAGNER, M. SMITH, MURT, MICOZZIE, GRUCELA, D. O'BRIEN, HOUGHTON, BROOKS, WALKO, GALLOWAY AND YUDICHAK, APRIL 27, 2009

  

  

AS REPORTED FROM COMMITTEE ON EDUCATION, HOUSE OF REPRESENTATIVES, AS AMENDED, JULY 2, 2009   

  

  

  

AN ACT

  

1

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

2

act relating to the public school system, including certain

3

provisions applicable as well to private and parochial

4

schools; amending, revising, consolidating and changing the

5

laws relating thereto," in reimbursement by Commonwealth and

6

between school districts, further providing for definitions;

7

and providing for special education funding for student

8

achievement and instruction of eligible students in regular

9

classrooms and for special education accountability to

10

Commonwealth taxpayers.

11

The General Assembly of the Commonwealth of Pennsylvania

12

hereby enacts as follows:

13

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

14

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

15

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

16

amended by adding clauses to read:

17

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

 


1

the following terms shall have the following meanings:

2

* * *

3

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

4

differences for each county as published by the department on

5

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

6

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

7

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

8

effective date of this clause.

9

* * *

10

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

11

computed to determine the number of eligible students in each

12

school district in accordance with rules of procedure as

13

established by the Secretary of Education. For the purpose of

14

calculating the special education funding allocation under

15

section 2509.13, the computation shall be adjusted for each

16

level of instruction for eligible students as follows:

17

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

18

0.50.

19

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

20

prekindergarten or kindergarten level totaling full-time through

21

multiple placements: 1.00.

22

(iii)  Elementary and secondary: 1.00.

23

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

24

a school district’s total annual expenditures for special

25

education in all functional classifications for students with

26

disabilities, as designated in the Manual of Accounting and

27

Related Financial Procedures for Pennsylvania School Systems.

28

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

29

average student in Pennsylvania without special needs to meet

30

State performance expectations as originally determined in the

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1

final revised Statewide Costing-out Study of 2007 performed

2

pursuant to section 2599.3 and as adjusted annually for the

3

fiscal year in the formula for basic education funding.

4

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

5

eligible for special education under Federal and State law.

6

(35)  "Modified Special Education Average Daily Membership"

7

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

8

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

9

district’s special education average daily membership in the

10

funding year;

11

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

12

district’s special education average daily membership in the

13

school year prior to the funding year;

14

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

15

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

16

school years prior to the funding year;

17

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

18

special education average daily membership three (3) school

19

years prior to the funding year; and

20

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

21

special education average daily membership four (4) years prior

22

to the funding year.

23

(36)  "Performance Indicators." Measurable annual objectives

24

established by the Department of Education pursuant to section

25

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

26

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

27

toward achieving State goals for the performance of eligible

28

students.

29

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

30

and documents for public access at a minimum through publication

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1

by the Department of Education:

2

(i)  in the Pennsylvania Bulletin;

3

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

4

than a duration of twelve (12) months; and

5

(iii)  through its timely issuance of a related Statewide

6

press release.

7

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

8

operated primarily for students who are not eligible for special

9

education.

10

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

11

charter school, or other public school operated for all

<--

12

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

13

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

14

as revisions, updates and amendments for all special education

15

personnel, programs, services and supports provided by each

16

school district for eligible students, filed by each district

17

with the Department of Education under this act and other

18

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

19

(relating to special education plans).

20

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

21

as measured by academic performance whenever possible in the

22

general education curriculum, acquisition of knowledge and

23

skills, progress toward graduation, accomplishment of

24

individualized education program goals, including appropriate

25

functional skills, and other factors.

26

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

27

Section 2509.13.  Special Education Funding for Student

28

Achievement and Instruction of Eligible Students in Regular

29

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

30

special education adequacy target for each school district by

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1

calculating the sum of the following:

2

(1)  A special education supplement determined by calculating

3

the product of:

4

(i)  the base cost per student;

5

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

6

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

7

(2)  An adjustment for geographic price differences

8

calculated as follows:

9

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

10

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

11

greater.

12

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

13

under subclause (i).

14

(b)  The Department of Education shall determine a State

15

special education funding target for each school district by

16

calculating the product of:

17

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

18

education adequacy target determined under subsection (a) and

19

its actual special education spending for the funding year, or

20

zero, whichever is greater;

21

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

22

ratio for the school year in which funding occurs;

23

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

24

year equalized millage divided by the equalized millage that

25

represents the seventy-fifth percentile of the equalized millage

26

of all school districts in the funding year; and 

27

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

28

districts meeting the following criteria:

29

(i)  either providing instruction within the regular

30

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

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1

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

2

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

3

available, or increasing the number of eligible students

4

receiving instruction within the regular classroom by at least

5

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

6

data is available; and

7

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

8

available, performance by eligible students on State academic

9

assessments in reading and math, averaged for the entire

10

district, meeting State standards for adequate yearly progress

11

by any method approved by the Federal and State governments,

12

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

13

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

14

Nothing in this subsection or any other provision of this act

<--

15

alters Federal or State law regarding the right of an eligible

16

student to receive education in the least restrictive

17

environment or alters the legal authority of Individualized

18

Education Program (IEP) teams to make appropriate program and

19

placement decisions for eligible students in accordance with the

20

IEP developed for each eligible student.

21

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

22

Governor and General Assembly recommending increased standards

23

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

24

shall consider legislation revising the criteria, in any year in

25

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

26

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

27

(1.15) factor for funding.

28

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

29

provide adequate special education funding that will ensure

30

equitable State and local investments in special education in

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1

public schools, and in order to enable eligible students to

2

attain applicable Federal and State academic standards and to be

3

educated in regular classrooms when appropriate, it is the goal

4

of the Commonwealth to review and meet State special education

5

funding targets by fiscal year 2014-2015.

6

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

7

special education funding allocation for the 2009-2010 school

8

year which shall consist of the sum of the following:

9

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

10

funding allocation for the 2008-2009 school year under section

11

2509.5; and

12

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

13

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

14

represents the eightieth percentile of the equalized millage of

15

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

16

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

17

hundredths percent (16.75%) of the State special education

18

funding target determined under subsection (b).

19

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

20

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

21

eightieth percentile of the equalized millage of all school

22

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

23

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

24

education funding target determined under subsection (b).

25

(f)  The Department of Education shall provide additional

26

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

27

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

28

than the percentage increase in the school district's special

29

education funding allocation for the 2008-2009 school year under

30

section 2509.5. The amount of the additional funding shall be

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1

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

2

this subsection is at least equal to the percentage increase in

3

the school district's special education funding allocation for

4

the 2008-2009 school year under section 2509.5.

5

(g)  (1)  The Commonwealth shall appropriate additional

6

funding in each year for the Special Education Contingency Fund,

<--

7

which is hereby established as a special fund in the State

8

Treasury for extraordinary special education program expenses

<--

9

under section 2509.8. The appropriation for the fund shall be at

10

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

11

special education appropriations made pursuant to subsection (e)

12

and shall be made in addition to such total.

13

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

14

provide resources needed:

15

(i)  to partially meet extraordinary special education

16

expenses not anticipated through the special education funding

17

formula in this section for eligible students within the first

18

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

19

enrollment in a school district or charter school; and

<--

20

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

21

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

22

resources for school districts or charter schools implementing

<--

23

programs or services that serve as a model of excellence for

24

meeting high standards for student achievement through quality

25

special education.

26

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

27

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

28

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

29

(4)  School districts or charter schools may apply for

<--

30

resources through the fund pursuant to procedures established by

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1

the Department of Education. The Department of Education shall

2

issue resources from the fund only in response to such

3

applications. The Department of Education shall give priority to

4

districts or charter schools with a relatively high percentage

<--

5

of students in poverty, annually setting these criteria and

6

granting a higher percentage of the resources requested by such

7

districts or charter schools.

<--

8

(5)  The Department of Education shall issue a comprehensive

9

annual report documenting use of the fund to the Governor and

10

all members of the General Assembly, and shall give public

11

notice about such report.

12

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

13

education expenses" are expenses that result from needs and

14

circumstances of an eligible student with significant

15

disabilities which are not ordinarily present in a typical

16

special education service and program delivery system and which

17

have costs exceeding the school district funding for special

18

education, in order to provide the student with an appropriate

19

education in the least restrictive environment.

20

Section 2509.14.  Special Education Accountability to

<--

21

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

22

shall determine the form and manner in which school districts

23

shall submit a special education plan and revisions, updates and

24

amendments to the special education plan pursuant to this

25

section. The special education plan shall be consistent with

26

other existing plans and reports required by the Department of

27

Education to the greatest extent possible, including those

28

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

29

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

30

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

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1

public, including a general summary.

2

(2)  The Department of Education:

3

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

4

updates and amendments.

5

(ii)  May provide recommendations to school districts.

6

(iii)  Shall approve, disapprove or conditionally approve the

7

special education plan for each district within ninety (90)

8

calendar days of receipt.

9

(iv)  Shall provide technical assistance to any school

10

district for the development or implementation of a special

11

education plan upon request by a district or when a special

12

education plan is disapproved or conditionally approved, with

13

extra assistance provided for smaller districts with more

14

limited special education administrative staff.

15

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

16

school directors of any school district whose special education

17

plan is disapproved or conditionally approved.

18

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

19

made pursuant to this section.

20

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

21

special education plan as necessary until approved by the

22

Department of Education, if its plan has been:

23

(i)  disapproved; or

24

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

25

the Department of Education.

26

(4)  The Department of Education shall approve any school

27

district special education plan and revisions, updates and

28

amendments that, in its determination, does the following:

29

(i)  Meets the requirements of this section, including

30

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

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1

(ii)  Describes and addresses, with reference to specific

2

schools, grade levels and populations of students most in need

3

in the district, the programs and strategies that are most

4

likely to make progress in resolving student achievement

5

challenges for eligible students and the challenges of placing

6

eligible students in regular classrooms with supports as

7

identified in the most recent measurements of student outcomes,

8

school district performance and other performance indicators.

9

(iii)  Establishes a reasonable budget, timeline and

10

benchmarks for implementation, with the budget considered in

11

evaluating the special education plan but not subject itself to

12

approval by the Department of Education.

13

(iv)  Documents progress made in addressing student needs and

14

improving student outcomes since the district last submitted a

15

special education plan, revision, update or amendment to the

16

Department of Education.

17

(5)  The Secretary of Education shall involve as appropriate

18

in special education monitoring, support, intervention,

19

technical assistance and special education plan review by the

20

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

21

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

22

in intermediate units and consultants, and shall neither

23

delegate nor limit these functions solely to the Bureau of

24

Special Education. The secretary shall have the authority to

25

contract for additional assistance with intermediate units and

26

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

27

create a conflict of interest or supplant existing service or

28

program obligations.

29

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

30

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

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1

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

2

monitoring, support, intervention, technical assistance and

3

fiscal penalties related to special education pursuant to this

4

section and a detailed description of these Department of

5

Education activities in each district.

6

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

7

of Education for approval pursuant to subsection (a) a

8

comprehensive special education plan every three (3) years,

9

annual revisions and updates to the special education plan and

10

other amendments as needed. The special education plan and

11

revisions and updates shall be submitted according to deadlines

12

established in or pursuant to this section, and shall

13

incorporate other existing plans and reports required by the

14

Department of Education to the greatest extent possible. A full

15

and accurate budget, timeline and benchmarks for implementation

16

must accompany all special education plans and must be revised

17

and updated as required and amended as needed.

18

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

19

the needs of eligible students are being met based on all

20

performance indicators as defined in this act and in Federal

21

law.

22

(3)  The Department of Education shall hold school districts

23

accountable for the effective use of resources to meet student

24

needs by:

25

(i)  Reviewing and monitoring implementation of all special

26

education plans.

27

(ii)  Providing support, intervention, and technical

28

assistance in districts failing to meet student needs based on

29

performance indicators.

30

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

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1

districts failing to adequately implement their special

2

education plans or not making annual progress to meet student

3

needs in accordance with this section.

4

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

5

of all Federal and State special education funding for districts

6

identified pursuant to subclause (iii), while the identified

7

problems remain unresolved. If the Department of Education

8

determines that a district is making substantial progress toward

9

resolving the identified problems, it shall restore no more than

10

six (6) months of the withheld funding retroactively.

11

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

12

thereafter, each school district receiving an increase in its

13

State special education funding allocation of more than the

14

index shall update its special education plan based on overall

15

circumstances, shall also revise the special education plan to

16

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

17

shall submit the updates and revisions to the Department of

18

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

19

education plan, update or revision shall be accompanied by a

20

budget, timeline and benchmarks for implementation and shall

21

incorporate other existing plans and reports required by the

22

Department of Education to the greatest extent possible.

23

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

24

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

25

research-based programs and supports expressly benefiting

26

eligible students, contributing to achievement of performance

27

indicators, and approved by the Department of Education in

28

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

29

year thereafter. Research-based programs and supports approved

30

by the Department of Education based on these criteria shall

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1

include or shall be related to:

2

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

3

classrooms for the purpose of including eligible students.

4

(ii)  Providing assistive technology and support services to

5

meet eligible student needs.

6

(iii)  Placing and serving eligible students in regular

7

classrooms with supports.

8

(iv)  Reducing caseloads for special education teachers and

9

related services personnel for the purpose of including eligible

10

students in regular classrooms.

11

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

12

for the purpose of including eligible students.

13

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

14

of eligible students.

15

(vii)  Supplementary aids and services to support including

16

eligible students in regular classrooms. 

17

(viii)  Professional development to implement the strategies

18

and programs approved through or listed in this clause.

19

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

20

pursuant to this subsection by each district shall document

21

that:

22

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

23

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

24

supplement and not supplant other resources.

25

(ii)  The district is maintaining its effort for special

26

education expenditures by showing that the aggregate special

27

education expenditures within the district from local funds for

28

the funding year will not be less than the corresponding amount

29

for the fiscal year preceding the funding year. After written

30

application by a district with public notice occurring both upon

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1

application and upon the subsequent decision by the Secretary of

2

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

3

and up to the amount of expenditures directly related to the

4

circumstances the maintenance of effort requirements of this

5

subclause if the secretary determines that a waiver would be

6

equitable due to exceptional or uncontrollable circumstances,

7

such as a decrease in eligible students or the lawful

8

termination of special education obligations for a student with

9

an exceptionally costly program.

10

(4)  The Department of Education shall hold school districts

11

accountable for the effective use of resources to meet student

12

needs by:

13

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

14

update or revision submitted pursuant to this section,

15

withholding the portion of the annual State increase in special

16

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

17

special education plan, update or revision is approved or

18

conditionally approved.

19

(ii)  Reviewing and monitoring implementation of all special

20

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

21

(iii)  Providing support, intervention and technical

22

assistance in districts failing to meet student needs based on

23

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

24

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

25

districts failing to adequately implement their special

26

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

27

annual progress to meet student needs in accordance with this

28

section.

29

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

30

determining whether to review the entire special education plan

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1

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

2

(d)  To discourage the inappropriate overidentification of

3

children for special education, the Department of Education

4

shall automatically conduct a thorough review of the special

5

education plan in consultation with the school district and

6

shall take appropriate remedial action, including withholding up

7

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

8

funding, for any district increasing the ratio of its special

9

education average daily membership to its average daily

10

membership for all students in the most recent school year for

11

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

12

previous year or for any district increasing this ratio by an

13

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

14

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

15

by the Department of Education after consultation with the

16

district to be justified.

17

(e)  The Department of Education may release special

18

education funding to a school district in periodic payments in

19

the current and subsequent years, upon finding that the district

20

is failing to adequately develop and implement special education

21

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

22

accordance with this section, is found to be overidentifying

23

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

24

subsection (c)(3).

25

(f)  The Department of Education shall issue a comprehensive

26

annual report on special education funding, special education

27

plans and special education accountability issues to the

28

Governor and all members of the General Assembly and shall give

29

public notice about such annual report.

30

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

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1

school district a notice specifying the Department of

2

Education's decisions and actions pursuant to this section and

3

the rationale for such decisions and actions. A school district

4

may file a written complaint with the Secretary of Education

5

about the Department of Education's decisions and actions

6

regarding that district made pursuant to this section. The

7

complaint must be submitted to the secretary's office within

8

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

9

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

10

receiving the notice, whichever is greater. The secretary shall

11

consider the complaint, consult with the district and, within

12

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

13

written complaint decision addressing the concerns and claims

14

made in the complaint, explaining the judgment of the Department

15

of Education in response to these concerns and claims and

16

specifying the opportunity for a subsequent hearing under 2

17

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

18

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

19

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

20

(relating to general rules of administrative practice and

21

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

22

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

23

receipt of a district's hearing request following its written

24

complaint decision. The Department of Education shall render a

25

written hearing decision within thirty (30) calendar days

26

following the hearing.

27

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

28

provisions of a collective bargaining agreement between a school

29

entity and an employe organization in effect on the effective

30

date of this section.

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1

Section 2509.14.  Special Education Accountability to

<--

2

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

3

shall determine the form and manner in which school districts

4

shall submit a special education plan and revisions, updates and

5

amendments to the special education plan pursuant to this

6

section. The special education plan shall be consistent with

7

other existing plans and reports required by the Department of

8

Education to the greatest extent possible, including those

9

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

10

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

11

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

12

public, including a general summary.

13

(2)  The Department of Education shall:

14

(i)  review the special education plans and revisions,

15

updates and amendments;

16

(ii)  provide recommendations and technical assistance to

17

school districts;

18

(iii)  approve or disapprove the plan within ninety (90)

19

calendar days of receipt; and

20

(iv)  provide a written explanation when disapproving a plan.

21

(3)  The Department of Education shall approve a special

22

education plan and revisions, updates and amendments that in the

23

determination of the department:

24

(i)  meet the requirements of this section;

25

(ii)  address the academic and developmental challenges for

26

eligible students identified in the school district's most

27

recent student achievement results and pursuant to performance

28

indicators, with specific focus on individual schools, grade

29

levels and populations of students that demonstrate inadequate

30

levels of student outcomes; and

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1

(iii)  describe programs and strategies that are most likely

2

to improve student outcomes in the school district.

3

(4)  Upon disapproving a school district's special education

4

plan, update or revision submitted pursuant to this section, the

5

Department of Education shall withhold the portion of the annual

6

State increase in special education funding which exceeds the

7

index until such a time as a written special education plan,

8

update or revision is approved.

9

(5)  The Secretary of Education shall involve as appropriate

10

in special education monitoring, support, intervention,

11

technical assistance and special education plan review by the

12

Department of Education, the staff in relevant offices, bureaus

13

and divisions of the department, as well as staff in

14

intermediate units and consultants, and shall neither delegate

15

nor limit these functions solely to the Bureau of Special

16

Education. The Secretary of Education shall have the authority

17

to contract for additional assistance with intermediate units

18

and consultants for these purposes, so long as such contracts do

19

not create a conflict of interest or supplant existing service

20

or program obligations.

21

(b)  (1)  By September 15, 2009, and by April 15 of each year

22

thereafter, each school district receiving an increase in its

23

State special education funding allocation of more than the

24

index shall update its special education plan based on overall

25

circumstances, shall also revise the special education plan to

26

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

27

shall submit the updates and revisions to the Department of

28

Education for approval pursuant to subsection (a). Unless a

29

school district decides to amend its special education plan more

30

broadly to reflect the receipt of new funding or for other

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1

reasons, the guidelines and regulations developed by the

2

Department of Education pursuant to this section for plan

3

updates or revisions shall allow a district to meet the

4

requirements of this section by adding the mandated information

5

as an appendix to the existing plan. The special education plan,

6

update or revision shall document the challenges remaining and

7

progress made in addressing student needs and improving student

8

outcomes, shall be accompanied by a budget, timeline and

9

benchmarks for implementation, and shall incorporate other

10

existing plans and reports required by the Department of

11

Education to the greatest extent possible. The budget required

12

by this subsection shall be considered by the Department of

13

Education in evaluating the special education plan but is not

14

itself subject to approval or disapproval by the department.

15

(2)  (i)  Each school district receiving an increased

16

allocation above the index shall use these funds for one or more

17

research-based programs and supports that meet the following

18

basic criteria:

19

(A)  expressly benefit eligible students educated in the

20

least restrictive environment in accordance with Federal and

21

State law;

22

(B)  contribute to achievement of performance indicators; and

23

(C)  are approved by the Department of Education in

24

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

25

year thereafter.

26

(ii)  Department of Education guidelines for research-based

27

programs and supports meeting these basic criteria shall address

28

at least the following:

29

(A)  curricula adaptation;

30

(B)  co-teaching;

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1

(C)  assistive technology;

2

(D)  school-wide positive behavior supports;

3

(E)  supplementary aids and services;

4

(F)  professional development;

5

(G)  reading specialist services and supports;

6

(H)  reducing caseloads for special education teachers and

7

related services personnel; and

8

(I)  placing and serving eligible students in regular

9

classrooms with supports in accordance with the Individualized

10

Education Program (IEP) developed for each eligible student.

11

(3)  According to standards established by the Department of

12

Education, the special education plan, update or revision shall

13

document that the increased allocation above the index is used:

14

(i)  for the purposes approved under clause (2);

15

(ii)  to supplement and not supplant other resources; and

16

(iii)  in ways that allow the school district to maintain its

17

effort for special education expenditures.

18

(c)  Accountability for the effective use of resources to

19

meet student needs shall be provided in the following ways:

20

(1)  The Department of Education shall issue to the General

21

Assembly a comprehensive annual report on special education

22

funding, special education plans, the implementation of 22 Pa.

23

Code § 14.104 and other special education accountability issues

24

for public school entities serving eligible students and this

25

Commonwealth.

26

(2)  Upon disapproving a school district's special education

27

plan, update or revision, the Department of Education shall

28

withhold the portion of the annual State increase in special

29

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

30

written special education plan, update or revision is approved

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1

or conditionally approved.

2

(3)  (i)  The Department of Education shall:

3

(A)  review and monitor implementation of all special

4

education plans, including, but not limited to, compliance with

5

subsection (b) and 22 Pa. Code § 14.104;

6

(B)  provide support, intervention and technical assistance

7

in school districts failing to meet student needs based on

8

performance indicators or failing to comply with subsection (b);

9

(C)  identify at any time and at least annually all school

10

districts failing to adequately implement their special

11

education plans in compliance with Federal and State law,

12

failing to comply with subsection (b) or not making annual

13

progress to meet student needs based on performance indicators;

14

and

15

(D)  determine whether to withhold up to five percent (5%) of

16

all State special education funding for school districts

17

identified pursuant to this clause while the identified problems

18

remain unresolved.

19

(ii)  If the Department of Education determines that a school

20

district is making substantial progress toward resolving the

21

identified problems, it shall restore the withheld funding

22

retroactively and continue to monitor the district for an

23

additional two (2) years.

24

(4)  To discourage the inappropriate over-identification of

25

children for special education, the Department of Education

26

shall automatically conduct a thorough review of the special

27

education plan of any school district where the ratio of its

28

special education average daily membership to its average daily

29

membership for all students in the most recent school year for

30

which data is available has increased by more than ten percent

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1

(10%) over the previous year or of any district where the ratio

2

has increased by an annual average of more than five percent

3

(5%) during the most recent five (5) year period. Appropriate

4

remedial action, including withholding up to five percent (5%)

5

of all State special education funding, may be taken, unless the

6

increase is determined to be justified by the Department of

7

Education after consultation with the school district.

8

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

9

school district a notice specifying the department's decisions

10

and actions pursuant to this section and the rationale for such

11

decisions and actions. A school district may file a written

12

complaint with the Secretary of Education about the Department

13

of Education's decisions and actions regarding that district

14

made pursuant to this section. The complaint must be submitted

15

to the Secretary of Education's office within thirty (30)

16

calendar days of the Department of Education's decision or

17

action or within thirty (30) calendar days of receiving the

18

notice, whichever is greater. The Secretary of Education shall

19

consider the complaint, consult with the school district and,

20

within thirty (30) calendar days after receiving the complaint,

21

issue a written decision addressing the concerns and claims made

22

in the complaint, explaining the judgment of the Department of

23

Education in response to these concerns and claims, and

24

specifying the opportunity for a subsequent hearing under 2

25

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

26

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

27

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

28

(relating to general rules of administrative practice and

29

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

30

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

- 23 -

 


1

receipt of a school district's hearing request following its

2

written complaint decision. The Department of Education shall

3

render a written hearing decision within thirty (30) calendar

4

days following the hearing.

5

(e)  The Department of Education shall give public notice of

6

the decisions, actions and reports made pursuant to this

7

section.

8

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

9

provisions of a collective bargaining agreement between a school

10

entity and an employee organization in effect on the effective

11

date of this section.

12

Section 3.  Within 60 calendar days following the effective

13

date of this act, or within a different time period if otherwise

<--

14

specified in this act, the Secretary of Education shall propose

15

regulations for promulgation by the State Board of Education

16

which implement this act.

17

Section 4.  This act shall take effect immediately.

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