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15-DAY NOTICE OF MODIFICATIONS TO TEXT OF PROPOSED REGULATIONS REGARDING SPECIAL EDUCATION


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PLEASE NOTE: All written comments are to be restricted to the recent modifications submitted for this 15-day comment period. The SBE is not required to respond to comments received in response to this notice on other aspects of the proposed regulation.


CALIFORNIA DEPARTMENT OF EDUCATION
TOM TORLAKSON, State Superintendent of Public Instruction

CALIFORNIA STATE BOARD OF EDUCATION
MICHAEL W. KIRST, President
916-319-0800
1430 N Street Sacramento, CA 95814-5901
916-319-0827

November 8, 2013
15-DAY NOTICE OF MODIFICATIONS TO TEXT OF PROPOSED REGULATIONS REGARDING SPECIAL EDUCATION

Pursuant to the requirements of Government Code section 11346.8(c), and California Code of Regulations, title 1, section 44, the State Board of Education (SBE) is providing notice of changes made to the above-referenced proposed regulation text which was the subject of a regulatory hearing on July 8, 2013.
Changes to the text:

SECTION 3001 is amended to delete subdivisions (d), (e), (f), (g), and (ab) pursuant to AB 86.

SECTION 3001(g) (formerly k) is amended to capitalize the term Pupil Personnel Services, which is the name of a kind of credential.

SECTION 3001(r) (formerly v) is amended to provide an additional clarification to the definition of “Qualified.”

SECTION 3030(b)(10)(C)(5) is amended to include an exception noted in 34 C.F.R. section 300.310(c) concerning the observation of a child when determining the existence of a specific learning disability.

SECTIONS 3031(a)(2)(A) and (B) are amended to more closely align with the language in California Government Code section 95014(a), pertaining to the eligibility criteria for qualifying for Early Start services and the definition of “developmental delay” for children aged birth to younger than three years, including children under 24 months of age.
Section 3031(a)(2)(A) is also amended so that it lists the five developmental areas pertaining to developmental delay exactly as these areas appear in Government Code section 95014(a).

SECTION 3031(b) is amended to include a reference to both Education Code section 56001(c) and (d) to additionally clarify the protections of the California Early Intervention Services Act.

SECTION 3040(a) (formerly b) is maintained and amended with the following language "The LEA shall give the parent or guardian a copy of the IEP in his or her primary language at his or her request."

SECTION 3040(b) (formerly c) is maintained to ensure that the requirement is explicit.

SECTION 3043(d) is amended to delete reference to an obsolete reimbursement formula for LEAs providing extended school year services.

SECTIONS 3051 through 3051.24 are being amended significantly by merging subdivisions pertaining to detailed staff qualifications from section 6035 into these sections. The purpose of this merger is to create one section of regulations containing both the definitions and standards of related services and the qualifications of personnel who are permitted to provide these services. Specifically, the amendments to the pertinent sections are as follows:

SECTION 3051 is amended to add references to section 3001(r) (formerly v), which defines "Qualified," and all the relevant portions of sections 3051, et seq. These amendments are added to emphasize that all entities providing related services shall be qualified, as defined by the regulations, and shall meet the requirements of 3051, et seq. In addition, new subsection (4) pertaining to nonpublic schools and nonpublic agencies is added and repeats the language found in section 3065(a) to clarify that the requirements of section 3051, et seq. pertain to nonpublic school and nonpublic agency settings. Similarly, subdivision (5) is added to clarify how persons providing related services to California students who are placed in out-of-state settings must be certified. A reference citation from federal regulations, 34 C.F.R. Section 300.18, is added to substantiate that the need for highly qualified special education teachers pertains to nonpublic schools and nonpublic agencies as well as to general education settings.

SECTION 3051.1(c) is amended to incorporate from section 3065(k) the qualifications of persons who can provide language, speech and hearing development and remediation.

SECTION 3051.1(d) is added to incorporate language from proposed section 3065(k)(2)(A) that references Business and Professions Code section 2530.2(i) and former section 3051.1(c), and to clarify that the assistants referred to by the regulations are speech-language pathology assistants. Education Code section 56366.1 is added to the authority section in the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Business and Professions Code section 2530 is added to the reference pertinent to qualifications of speech-language pathologists.

SECTION 3051.2(b) is amended to incorporate from section 3065(c) the qualifications of persons who can provide audiological services. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

Education Code section 49422 is added to the references because it contains information about the credentialing of audiologists. Business and Professions Code section 2530 is added to the reference pertinent to qualifications of audiologists.

SECTION 3051.3(b) is amended to incorporate from section 3065(n) the qualifications of persons who can provide orientation and mobility instruction. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

SECTION 3051.4 AUTHORITY AND REFERENCE is amended as follows: Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.5(b) is amended to incorporate from section 3065(a) the qualifications of persons who can provide adapted physical education. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.6(b) is amended to incorporate from section 3065(p) and 3065(m) the qualifications of persons who can provide physical therapy and occupational therapy, respectively. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Business and Professions Code sections 2570.2 and 2630 are added to the reference pertinent to qualifications of occupational therapists and physical therapists, respectively.

SECTION 3051.7(e) is amended to incorporate from section 3065(x) the qualifications of persons who can provide vision services. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Education Code section 49422 is added to the references because it contains information about the credentialing of optometrists. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.7.5 NOTE is amended as follows: Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. The reference to 20 U.S.C. Section 1414(c)(2)(B) is deleted because it now refers to evaluation procedures, and the reference to 34 C.F.R. 300.600 is deleted because it now refers to state monitoring and enforcement. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.8 NOTE is amended as follows: Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.9(c) is amended to incorporate from section 3065(f) the qualifications of persons who can provide counseling and guidance services. This section is also amended to include the correct title of those who are registered with the Board of Behavioral Sciences as interns; to update the list of people who are qualified to supervise a Marriage and Family Therapist Registered Intern by adding a reference to "Licensed Professional Clinical Counselors"; and to add two new qualifications, "Licensed Professional Clinical Counselor" and “Professional Clinical Counselor Registered Interns” to the list of persons qualified to provide counseling and guidance services.

Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Education Code section 49422 is added to the references because it contains information about the credentialing of psychologists. Business and Professions Code sections 2903, 2905, 4980.02, 4980.14, and 4996.9 are added to the reference pertinent to qualifications of the practice of psychology, marriage and family therapy, educational psychology, and clinical social work. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services–are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3015.10 is amended to reinstate former subdivision (a), which reads "Counseling provided to an individual with exceptional needs by a credentialed or licensed psychologist or other qualified personnel." This amendment clarifies that "counseling" falls under the category of "psychological services" and can, therefore, be provided by a psychologist.

Subdivision (a)(4) is added to bring this section into closer alignment with 34 CFR 300.34(c)(10) regarding the development of positive behavioral intervention strategies.
Subdivision (a)(5) is incorporated from former 3065(q)(1)(B) to ensure proper clarification that the term “psychological services” does not include assessment services and the development of an IEP, as specified in Education Code section 56363(b)(10).

Subdivision (b) is amended to incorporate from section 3065(q)(2) the qualifications of persons who can provide psychological services and to update professional titles by adding the word "Licensed" to Educational Psychologist and Marriage and Family Therapist.

Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

SECTION 3051.11(b) is amended to incorporate from section 3065(o) the qualifications of persons who can provide parent counseling and training. This section is also amended to include the correct title of those who are registered with the Board of Behavioral Sciences as interns; to update the list of people who are qualified to supervise a Marriage and Family Therapist Registered Intern by adding a reference to "Licensed Professional Clinical Counselors"; and to add two new qualifications, "Licensed Professional Clinical Counselor" and "Professional Clinical Counselor Registered Interns" to the list of persons qualified to provide counseling and guidance services.

Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Education Code section 49422 is added to the references because it contains information about the credentialing of psychologists. Business and Professions Code sections 2903, 2905, 4980.02, 4980.14, and 4996.9 are added to the reference pertinent to qualifications of the practice of psychology, marriage and family therapy, educational psychology, and clinical social work.

SECTION 3051.12(a)(5) is amended to clarify that care is being provided to individuals "with disabilities." Education Code section 56366.1 is added to the note to substantiate
that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Education Code section 49422 is added to the references because it contains information about the credentialing of nurses.

SECTION 3051.13(a) is amended to delete the requirement that persons providing social worker services "be qualified."

SECTION 3051.13(b) is amended to incorporate from section 3065(s) the qualifications of persons who can provide social worker services. Subdivision (b) is also amended to include the correct title of those who are registered with the Board of Behavioral Sciences as interns; to update the list of people who are qualified to supervise a Marriage and Family Therapist Registered Intern by adding a reference to "Licensed Professional Clinical Counselors”; and to add two new qualifications, “Licensed Professional Clinical Counselor" and "Professional Clinical Counselor Registered Interns" to the list of persons qualified to provide counseling and guidance services.
Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Education Code section 49422 is added to the references because it contains information about the credentialing of persons providing social worker services. Business and Professions Code sections 2903, 2905, 4980.02, 4980.14, and 4996.9 are added to the reference pertinent to qualifications of the practice of psychology, marriage and family therapy, educational psychology, and clinical social work.

SECTION 3051.14(b) is amended to delete the requirement that persons providing specially designed vocational education and career development services "be qualified." Subdivision (b) is further amended to incorporate from section 3065(u) the qualifications of persons who can provide specially designed vocational education and career development services.

Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

SECTION 3051.15(b) (formerly d) is amended to delete the requirement that persons providing recreation services shall "be qualified." Subdivision (d) is further amended to incorporate from section 3065(r) the qualifications of persons who can provide recreation services. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services--are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.16(d) is added to incorporate language from section 3065(v) pertaining to the qualifications of persons who can provide specialized services for low-incidence disabilities. Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

SECTION 3051.17 NOTE is amended as follows: Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section. Citations from federal regulations–34 CFR 300.34, pertaining to related services, and 300.156(b)(1), pertaining to the qualifications of persons providing related services--are added to the references to provide additional substantiation and to provide consistency among the sections in 3051 et seq.

SECTION 3051.18 NOTE is amended as follows: Education Code section 56366.1 is added to the note to substantiate that nonpublic schools and nonpublic agencies seeking certification from the CDE must meet the requirements of this section.

SECTION 3051.19 is added to incorporate from section 3065(b) language pertaining to the provision of assistive technology services.
SECTION 3051.20 is added to incorporate from section 3065(g) language pertaining to the provision of early education programs.
SECTION 3051.21 is added to incorporate from proposed section 3065(l) language pertaining to the qualifications of persons who can provide music therapy. This section is also amended to include a definition of music therapy obtained from the Certification Board for Music Therapy.
SECTION 3051.22 is added to incorporate from section 3065(w) language pertaining to the qualifications of persons who can provide transcription services.

SECTION 3051.23 is added to incorporate from section 3065(d) and (e) language pertaining to the qualifications of persons who can provide behavior interventions.

SECTION 3051.24 is added to incorporate from section 3065(y) language pertaining to the qualifications of persons who can provide other related services.

SECTION 3060(d)(7) is amended to delete reference to section 3052, which was repealed by AB 86 and pertained to positive behavior interventions, and to add references to Education Code sections 56520 through 56525, which where amended by AB 86 to address positive behavioral interventions in the absence of section 3052.

SECTION 3065 is being amended significantly as follows: All of the subsections have been moved in whole or in part to sections in 3051, et seq. The purpose of this merger of section 3065 into section 3051, et seq., is to create one section of regulations containing both the definitions and standards of related services and the qualifications of personnel who are permitted to provide these services. Specifically, the amendments to the pertinent sections are as follows:

Subdivision (a) is amended to clarify that the requirements of section 3051, et seq. must be met in nonpublic school and nonpublic agency settings. Similarly, subdivision (b) is added to clarify how persons providing related services to California students who are placed in out-of-state settings must be certified.

Former subdivision (a), pertinent to adapted physical education, is incorporated into section 3051.5(b).

Former subdivision (b), pertinent to assistive technology services, is now section 3051.19
Former subdivision (c), pertinent to audiological services, is incorporated into section 3051.2(b).

Former subdivisions (d) and (e), pertinent to behavior intervention, are now section 3051.23.
Former subdivision (f), pertinent to counseling and guidance, is incorporated into section 3051.9(c).

Former subdivision (g), pertinent to early education programs, is now section 3051.20.
Former subdivision (h), pertinent to educational interpreters, is deleted because it is redundant to section 3051.16.

Former subdivision (i), pertinent to health and nursing services, is deleted. This subdivision is redundant or duplicative of the staff qualifications enumerated in section 3051.12.
Former subdivision (j), pertinent to home and hospital instruction, is deleted because this subdivision is too restrictive. Requirements pertinent to home or hospital instruction can be found in section 3051.4.

Former subdivision (k), pertinent to language and speech development and remediation, is incorporated into section 3051.1.(c).

Former subdivision (l), pertinent to music therapy, is incorporated into section 3051.21.

Former subdivision (m), pertinent to occupational therapy, is incorporated into section 3051.6(b).

Former subdivision (n), pertinent to orientation and mobility instruction, is incorporated into section 3051.3(b).

Former subdivision (o), pertinent to parent counseling and training, is incorporated into section 3051.11(c).

Former subdivision (p), pertinent to physical therapy, is incorporated into section 3051.6(b).

Former subdivision (q)(1), pertinent to psychological services, is deleted; section 3051.10(a) provides a list, which is not exhaustive, of psychological services.
Former subdivision (q)(2) is incorporated into section 3051.10(b).

Former subdivision (r), pertinent to recreation services, is incorporated into section 3051.15(b).

Former subdivision (s), pertinent to social worker services, is incorporated into section 3051.13(b).

Former subdivision (t), pertinent to specialized driver training, is deleted because it is redundant to section 3051.8. Further, section 3051.8 cites the pertinent sections of Education Code regarding service provider qualifications.

Former subdivision (u), pertinent to specially designed vocational education and career development, is incorporated into section 3051.14(b).

Former subdivision (v), pertinent to specialized services for pupils with low-incidence disabilities, is incorporated into section 3051.16(d).

Former subdivision (w), pertinent to transcription services, is now section 3051.22.

Former subdivision (x), pertinent to vision services, is incorporated into section 3051.7(e).

Former subdivision (y), pertinent to other related services, is now section 3051.24.
SECTIONS 3083, 3084, and 3088 are amended to delete the word "public" before the word "agency" and to insert the words "or nonprofit organization or entity" to ensure that reference to the entity providing due process hearings and mediations reflects legislative language in Education Code section 56504.5.

COMMENTS
If you have any comments regarding the proposed changes that are the topic of this
15-Day Notice, the SBE will accept written comments between November 9, 2013 and November 25, 2013, inclusive. All written comments must be submitted to the Regulations Coordinator via facsimile at 916-319-0155; email at regcomments@cde.ca.gov or mailed and received at the following address by close of business at 5:00 p.m. on November 25, 2013 and addressed to:
Debra Thacker, Regulations Coordinator
Legal, Audits and Compliance Branch
Administrative Supports and Regulations Adoption Unit
California Department of Education
1430 N Street, Suite 5319
Sacramento, CA 95814

All written comments received by 5:00 p.m. on November 25, 2013, which pertain to the indicated changes will be reviewed and responded to by CDE staff as part of the compilation of the rulemaking file. Written comments received by the CDE staff during the public comment period are subject to viewing under the Public Records Act. Please limit your comments to the modifications to the 15-day text.

— California Department of Education
Notice

2013-11-08


CA


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