22 Pa Code 14.61-68 Procedural Safeguards
(1) The school district proposes to conduct a multidisciplinary evaluation or reevaluation of the student or young child.
(2) The school district refuses to provide independent evaluation at public expense.
(3) The school district proposes to initiate or change the identification, evaluation or educational placement of the student or young child, or proposes to make any significant changes in the IEP and the provision of an appropriate program to the student or young child.
(4) The school district refuses to initiate or change the identification, evaluation or educational placement of the student or young child, or refuses to make changes requested by the parents in the IEP and the provision of an appropriate program to the student or young child.
(b) No change in the identification evaluation, educational placement or IEP of an exceptional student or an eligible young child may be made during the pendency of an administrative or judicial proceeding unless agreed to by the parties to the proceeding.
(c) The content of notices to the parents shall be written in language understandable to the general public and, if appropriate, in the native language or other mode of communication used by the parents. If necessary, the content of notices shall be communicated orally in the native language or directly so that the parents understand the content of the notices.
(d) The notice shall include:
(1) A description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action and a description of options the district considered and the reasons why those options were rejected .
(2) A description of each evaluation procedure, type of test, record or report used as a basis for the action.
(3) A description of other factors relevant to the district's action.
(4) A full explanation of the procedural safeguards. including the right to a prehearing conference and an impartial hearing available to the student or the parents under this chapter, Chapter 342 (relating to special education services and programs) and the PARC Consent Agreement, reported in PARC v. Commw.. 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (E.D. Pa. 1972).
(e) The notice shall inform the parents of the following:
(1) The addresses and telephone numbers of various organizations, including the local chapter of the Association of Retarded Citizens, which are available to assist in connection with the hearing.
(2) Students or young children who have mental retardation, emotional disturbance or a mental disability are entitled under the Mental Health/Mental Retardation Act of 1966 (50 P.S. §§ 4101-4704) and the Mental Health Procedures Act (50 P.S. §§ 7101-7503) to the services of a local mental health/mental retardation (MH/MR) center for an independent medical, psychological and educational evaluation and shall contain the address and telephone number of the MH/MR center for that catchment area.
(3) The right to a prehearing conference with the school district and of the right to a hearing concerning the proposed action.
(4) The timelines involved in conducting an evaluation, developing an IEP and initiating a hearing.
(5) An outside evaluation submitted by the parents shall be considered and the parents can obtain an independent evaluation at private expense and at public expense as provided in § 14.67 (relating to independent educational evaluation).
(6) The information in § 14.64 (relating to impartial due process hearing).
22 Pa Code 14.62 Consent
The district shall document that written parental consent is obtained prior to:
(1) Conducting an initial multidisciplinary evaluation.
(2) Initially placing an exceptional student or eligible young child in a special education or early intervention program .
(3) Disclosing to unauthorized persons information identifiable to an exceptional student or an eligible young child.
Amended December 18, 1992. eff. December 19, 1992, 22 Pa. B. 6030.
22 Pa Code 14.63 Prehearing conference
(a) When completed, the IEP provided for in § 14.32 (relating to IEP) shall be presented to the parents, along with a notice of recommended assignment signed by the school district superintendent provided for in § 14.61(a)(3) and (4) (relating to notice) and a notice of parental right to request a prehearing conference or an impartial due process hearing under § 14.64 (relating to impartial due process hearing). The notice shall be presented to the parents in person at the conclusion of the IEP conference or by certified mail within 5 days after completion of the IEP conference.
(b) The parents shall have 10 days to respond to a notice of recommended assignment sent by mail or 5 days to respond to a notice presented in person at the conclusion of an IEP conference. If the parents receive the notice in person and approve the recommended assignment within 5 days, the school district may not implement the IEP for at least 5 days, to give the parents an opportunity to notify the district within the 5-day period of a decision not to approve of the recommended assignment.
(c) If the parents do not approve the recommended assignment, the school district superintendent shall convene a prehearing conference within 10 days of receipt of the disapproval. The conference shall be chaired by the superintendent or the superintendent's designee. Every effort shall be made at the conference to reach an amicable agreement in the best interests of the student. If the prehearing conference results in agreement as to a recommended assignment, the student's IEP shall be implemented according to the timeline specified in § 14.32(i) (relating to IEP), except that the IEP may not be implemented for at least 5 days, during which time the parents may notify the district in writing of a decision not to approve the recommended assignment.
(d) If the prehearing conference provided for in subsection (c) does not result in agreement as to a recommended assignment, the parents may request an impartial due process hearing under § 14.64.
(e) The parents or the school district may waive the right to a prehearing conference under subsection (c) and immediately request an impartial due process hearing under § 14.64.
22 Pa Code 14.64 Impartial due process hearing
(a) Parents may request an impartial due process hearing concerning the identification. evaluation or educational placement of, or the provision of a free appropriate public education to, a student who is exceptional or who is thought to be exceptional or a young child who is eligible or who is thought to be eligible, if the parents disagree with the school district's identification, evaluation or placement of, or the provision of a free appropriate public education to, the student or young child.
(b) A school district may request a hearing to proceed with an initial evaluation or an initial educational placement when the district has not been able to obtain consent from the parents or in regard to a matter under subsection (a)
(c) The hearing shall be conducted by and held in the local school district at a place reasonably convenient to the parents. At the request of the parents, the hearing may be held in the evening. These options shall be set forth in the form provided for requesting a hearing.
(d) The hearing shall be an oral, personal hearing and shall be open to the public unless the parents request a closed hearing. If the hearing is open, the decision issued in the case, and only the decision, shall be available to the public. If the hearing is closed, the decision shall be treated as a record of the student or young child and may not be available to the public.
(e) The decision of the hearing officer shall include findings of fact, a discussion and conclusions of law. Although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.
(f) The hearing officer shall have the authority to order that additional evidence be presented.
(g) A written transcript of the hearing shall, upon request, be made and provided to parents at no cost.
(h) Parents may be represented by any person, including legal counsel.
(i) A parent or a parent's representative shall be given access to educational records, including any tests or reports upon which the proposed action is based.
(j) A party may prohibit the introduction of evidence at the hearing that has not been disclosed to that party at least 5 days before the hearing.
(k) A party has the right to compel the attendance of and question witnesses who may have evidence upon which the proposed action might be based.
(I) A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.
(m) The decision of the impartial hearing officer may be appealed to a panel of three appellate hearing officers. The panel's decision may be appealed further to a court of competent jurisdiction. In notifying the parties of its decision, the panel shall indicate the courts to which an appeal may be taken.
(n) The following applies to coordination services for hearings and to hearing officers and appellate hearing officers:
(1) The Secretary may contract for coordination services in support of hearings conducted by local school districts. The coordination services shall be provided on behalf of school districts and may include arrangements for stenographic services, arrangements for hearing officer services, scheduling of hearings and other functions in support of procedural consistency and the rights of the parties to hearings.
(2) If a school district chooses not to utilize the coordination services under paragraph (1), it may conduct hearings independent of the services if it has obtained the Secretary's approval of procedures that similarly provide for procedural consistency and ensure the rights of the parties. In the absence of approval, a school district which receives a request for an impartial due process hearing shall forward the request to the entity providing coordination services under paragraph (I) without delay.
(3) The Secretary will contract for the services of panels of appellate hearing officers and may compensate appellate hearing officers for their services. The compensation does not cause the appellate hearing officers to become employes of the Department.
(4) Neither a hearing officer nor an appellate hearing officer may be an employe or agent of a school entity in which the parents or student or young child resides, or of an agency which is responsible for the education or care of the student or young child. A hearing officer or appellate hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.
(o) The following timeline applies to due process hearings:
(1) A hearing shall be held within 30 calendar days after a parent's or school district's initial request for a hearing.
(2) The hearing officer's decision shall be issued within 45 calendar days after the parent's or school district's request for a hearing.
(3) The appellate hearing panel shall render a decision within 30 calendar days after a request for review and shall provide the parties a written copy of the panel's decision.
(p) Each school district shall keep a list of the persons who serve as hearing officers. The list shall include the qualifications of each hearing officer. School districts shall provide parents with information as to the availability of the list and shall make copies of it available upon request.
Amended under Act of March 10, 1949 (P.L. 30, No. 14), § 101 to 2702 (24 P.S. § 1-101 to 27-2702): Act of December 19, 1990 (P.L. 1372, No. 212) (11 P.S. § 875-101 to 875-503).
Amended October 11, 1991, eff October 12, 1991, 21 Pa. B. 4830; amended December 18, 1992, eff December 19, 1992, 22 Pa. B. 6030.
22 Pa Code 14.65 Mediation
(a) Mediation is a process in which parents and agencies involved in an early intervention or special education dispute, regardless of whether an impartial due process hearing has been requested, may obtain the assistance of an impartial mediator in attempting to reach a mutually agreeable settlement.
(b) The Department will make mediation services available throughout this Commonwealth at Commonwealth expense.
(c) If the dispute is resolved through mediation, a written agreement shall be prepared and placed in the child's education record. The agreement shall also be incorporated into the IEP, if appropriate.
(d) Nothing in this section providing for mediation may be used to deny or delay a party's right to a due process hearing.
22 Pa Code 14.66 Surrogate parents
(a) To protect the rights of each eligible young child or eligible student and each young child or student thought to be eligible, the school district is responsible to appoint a qualified surrogate parent when the parents are unknown or unavailable, or when the young child or student is a ward of the State.
(b) Procedures for identification of young children and students who need surrogate parents and for appointment of surrogate parents shall be in accordance with this chapter and Chapter 342 (relating to special education services and programs).
22 Pa Code l4.67 Independent educational evaluation
(a) The parents of an eligible student or eligible young child or student or young child thought to be eligible have the right to obtain an independent educational evaluation of the student or young child, subject to subsections (b)- (f). The parents of students who are gifted or thought to be gifted have the right to obtain an independent educational evaluation of the student subject to subsections (b)-(e).
(b) Each school district shall provide to parents, on request, information about where an independent educational evaluation may be obtained.
(c) If parents obtain an independent educational evaluation at private expenses, the results of the evaluation shall be considered by the district in decisions made with respect to the provisions of a free appropriate public education to the student and may be presented as evidence at a due process hearing regarding that student.
(d) If a hearing officer requests an independent educational evaluation as part of a due process hearing, the cost of the evaluation shall be at public expense.
(e) Whenever an independent evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the evaluators, shall be the same as the criteria which the district uses when it initiates an evaluation .
(f) Parents have the right to an independent evaluation at public expense if the parents disagree with an evaluation obtained by the school entity. The school entity may initiate a hearing under § 14.64 (relating to impartial due process hearing) to show that its evaluation is appropriate. If the final decision is that the school entity's evaluation was appropriate, the parents may present a privately-commissioned independent educational evaluation not at public expense.
22 Pa Code 14.68 Confidentiality
Each agency shall:
(1) Protect the confidentiality of personally identifiable information regarding an exceptional student or a student thought to be exceptional or an eligible young child or young child thought to be eligible.
(2) Provide access to educational records to the parents of a student or young child or a representative of the parents.
(3) Establish procedures to permit parents to request the destruction of educational records.
(4) Comply with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C.A. § 1232g), 34 CFR Part 99 (relating to family educational rights and privacy), 34 CFR 300.560 - 300.576 (relating to confidentiality of information), Chapter 12 (relating to students) and other applicable law.
Amended December 18 1992. eff. December 19, 1992. 22 Pa. B. 6030: corrected April 8. i994, 22 Pa B 1838. eff. April 24. 1993.