(1) Services and programs planned, developed and operated for the identification and evaluation of each gifted student.

(2) Gifted education for each gifted or talented student which is based on the unique needs of the student, not solely on the student’s classification.

(3) Gifted education for gifted or talented students which enables them to participate in acceleration or enrichment programs, or both, as appropriate, and to receive services according to their intellectual and academic abilities and needs.

§3151. Definitions.

(i) Conducted in an instructional setting.

(ii) Provided in an instructional or skill area.

(iii) Provided at no cost to the parents.

(iv) Provided under the authority of a school district, directly, by referral or by contract.

(v) Individualized to meet the educational needs of the student.

(vi) Reasonably calculated to yield meaningful educational benefit and student progress.

(vii) Provided in conformity with a GIEP.

(i) Psychological services.

(ii) Parent counseling and education.

(iii) Counseling services.

(iv) Transportation to and from gifted programs to classrooms in buildings operated by the school district.

§3152. Experimental programs.

(a) The Secretary may approve exceptions to this Subchapter for the operation of experimental programs that are anticipated to improve student achievement and that meet certain unique programmatic needs of gifted students. School districts shall submit an annual application for approval of those programs. The application shall:

(1) Include provision for the involvement of parents, administrators and professionals in the design and ongoing review of performance.

(2) Include provisions for annually evaluating the program as to whether it benefits student achievement.

(3) Demonstrate that it has met the following criteria:

(b) When an experimental program has been approved for 3-consecutive years and has resulted in improved student achievement under subsection (a), annual application is not needed for the program to continue to operate.

(c) The Secretary may terminate an experimental program for failing to meet the objectives established in the application or for noncompliance with State law or regulations not specifically waived in the Secretary’s approval of the experimental program under subsection (a) upon 60 days notice.

(d) The Secretary will report annually to the Board regarding applications for experimental programs under this section and the disposition of the applications.

§3153. Special education.

(a) Nothing in this Subchapter is intended to reduce the protections afforded to students who are eligible for special education as provided for in this Chapters and the Individuals with Disabilities Education Act (20 U.S.C.A. § § 1400—1485).

(b) If a student is determined to be both gifted and eligible for special education, the procedures in Subchapter III of this Chapter shall take precedence. For these students identified with dual exceptionalities, the needs established under gifted status in this chapter shall be fully addressed pursuant to Subchapter III of this Chapter.

(c) For students who are gifted and eligible for special education, it is not necessary for school districts to conduct separate screening and evaluations, develop separate IEPs, or use separate procedural safeguards processes to provide for a student’s needs as both a gifted and an eligible student.

§3154. Screening.

(a) Each school district shall adopt and use a system to locate and identify all students within that district who are thought to be gifted and in need of specially designed instruction.

(b) Each school district shall conduct awareness activities to inform the public of gifted education services and programs and the manner by which to request these services and programs. These awareness activities shall be designed to reach parents of students enrolled in the public schools and the parents of school age children not enrolled in the public schools.

(c) Each school district shall determine the student’s needs through a screening and evaluation process which meets the requirements of this chapter.

(d) Each school district shall establish procedures to determine whether a student is mentally gifted. This term includes a person who has an IQ of 130 or higher and when multiple criteria as set forth in Department regulations indicate gifted ability. Determination of gifted ability will not be based on IQ score alone. A person with an IQ score lower than 130 may be admitted to gifted programs when other educational criteria in the profile of the person strongly indicate gifted ability. Determination of mentally gifted shall include an assessment by a certified school psychologist.

(e) Multiple criteria indicating gifted ability include:

(1) A year or more above grade achievement level for the normal age group in one or more subjects as measured by Nationally normed and validated achievement tests able to accurately reflect gifted performance. Subject results shall yield academic instruction levels in all academic subject areas.

(2) An observed or measured rate of acquisition/retention of new academic content or skills that reflect gifted ability.

(3) Demonstrated achievement, performance or expertise in one or more academic areas as evidenced by excellence of products, portfolio or research, as well as criterion-referenced team judgement.

(4) Early and measured use of high level thinking skills, academic creativity, leadership skills, intense academic interest areas, communications skills, foreign language aptitude or technology expertise.

(5) Documented, observed, validated or assessed evidence that intervening factors such as English as a second language, learning disability, physical impairment, emotional disability, gender or race bias, or socio/cultural deprivation are masking gifted abilities.

§3155. Gifted multidisciplinary evaluation.

(a) Prior to conducting an initial gifted multidisciplinary evaluation, the school district shall comply with the notice and consent requirements under §3162 and §3163 of this Subchapter.

(b) Referral for gifted multidisciplinary evaluation shall be made when the student is suspected by teachers or parents of being gifted and not receiving an appropriate education under §3101(2) of this Subchapter and one or more of the following apply:

(c) Parents who suspect that their child is gifted may request a gifted multidisciplinary evaluation of their child at any time, with a limit of one request per school term. The request shall be in writing. If a parental request is made orally to school personnel, the personnel shall inform the parents that the request shall be made in writing and shall provide the parents with a form for that purpose.

(d) Multidisciplinary evaluations shall be conducted by GMDTs. The GMDT shall be formed on the basis of the student’s needs and shall be comprised of the student’s parents, a certified school psychologist, persons familiar with the student’s educational experience and performance, one or more of the student’s current teachers, persons trained in the appropriate evaluation techniques and, when possible, persons familiar with the student’s cultural background. A single member of the GMDT may meet two or more of the qualifications specified in this subsection.

(e) Gifted multidisciplinary evaluations shall be sufficient in scope and depth to investigate information relevant to the student’s suspected giftedness, including academic functioning, learning strengths and educational needs.

(f) The multidisciplinary evaluation process shall include information from the parents or others who interact with the student on a regular basis, and may include information from the student if appropriate.

(g) The following protection-in-evaluation measures shall be considered when performing an evaluation of students suspected of being gifted:

(1) No one test or type of test may be used as the sole criterion for determining that a student is or is not gifted.

(2) Intelligence tests yielding an IQ score may not be used as the only measure of aptitude for students of limited English proficiency, or for students of racial-, linguistic- or ethnic-minority background.

(3) Tests and similar evaluation materials used in the determination of giftedness shall be:

(i) Selected and administered in a manner that is free from racial and cultural bias and bias based on disability.

(ii) Selected and administered so that the test results accurately reflect the student’s aptitude, achievement level or whatever other factor the test purports to measure.

(h) The GMDT shall prepare a written report which brings together the information and findings from the evaluation or reevaluation concerning the student’s educational needs and strengths. The report shall make recommendations as to whether the student is gifted and in need of specially designed instruction, shall indicate the bases for those recommendations, and shall indicate the names and positions of the members of the GMDT.

(i) To recommend that a student who has been evaluated is a gifted student, the GMDT shall conclude that the student needs specially designed education and meets the criteria for eligibility as defined in §3151 and §3155 of this Subchapter.

(j) The following timeline applies to the completion of gifted multidisciplinary evaluations:

(1) Each district shall establish and implement procedures to complete a gifted multidisciplinary evaluation for a student referred for evaluation within 45 school days after receiving parental permission for an initial evaluation, after notifying the parents of a reevaluation or after receiving an order of a court or hearing officer to conduct a multidisciplinary evaluation.

(2) An evaluation report shall be completed within 10 school days after completion of the gifted multidisciplinary evaluation.

(3) Within 5 school days after its completion, a copy of the evaluation report shall be delivered to the parents of the student.

§3156. Gifted multidisciplinary reevaluation.

(a) Gifted students shall be reevaluated before a change in educational placement is recommended for the student and when the conditions under §3155(b)(1) or (3) of this Subchapter are met. In addition, gifted students may be reevaluated at any time under recommendation by the GIEP team.

(b) Reevaluations shall be developed in accordance with all the requirements concerning evaluation in this chapter.

(c) Reevaluations shall include a review of the student’s GIEP, a determination of which instructional activities have been successful, and recommendations for the revision of the GIEP.

§3157. Gifted Individualized Education Program.

(a) A GIEP is a written plan describing the education to be provided to a gifted student. The initial GIEP shall be based on and be responsive to the results of the evaluation and shall be developed and implemented in accordance with this chapter.

(b) If a gifted student moves from one school district in this Commonwealth to another, the new district shall implement the existing GIEP to the extent possible or shall provide the services and programs specified in an interim GIEP agreed to by the parents until a new GIEP is developed and implemented in accordance with this section and §3158 and §3159 of this Subchapter or until the completion of due process proceedings under §3162-§3166 of this Subchapter.

(c) Every student receiving gifted education provided for in an IEP developed prior to September 1, 2002, shall continue to receive the gifted education under that IEP until the student’s GIEP is developed.

(d) Every student receiving gifted education prior to September 1, 2002, shall continue to receive gifted education until the student one of the following conditions exists:

§3158. Gifted Individualized Education Program Team.

(a) Each school district shall establish and implement procedures to appoint a GIEP team to review the recommendations of the GMDT and, if the GIEP team determines a student is gifted, to develop a GIEP for the student. The GIEP shall be developed at a GIEP meeting and based on data and information presented at that meeting.

(b) The GIEP team, in accordance with the requirements of this chapter shall, based upon the evaluation report, develop an initial GIEP for a student it determines to be a gifted student, and arrive at a determination of educational placement. Revisions to GIEPs, changes in educational placement, or continuation of educational placement for a student determined to be a gifted student shall be made by the GIEP team based upon a review of the student’s GIEP and instructional activities, as well as on information in the most recent evaluation.

(c) Each GIEP team shall include persons who meet the following qualifications:

(d) The school district shall establish and implement procedures designed to ensure that the parents of the gifted student are offered the opportunity to be present at each GIEP team meeting. These procedures shall include any one or a combination of the following: documented phone calls, letters and certified letters with return receipts. Agencies shall maintain documentation of their efforts to encourage parents to attend. By including them in the invitation, the following shall be considered reasonable efforts to ensure parent participation in the GIEP meeting:

(e) The GIEP of each gifted student shall be based on the GMDT’s recommendations and shall contain the following:

(f) A copy of the GIEP shall be provided to the parents, along with a notice of parental rights under §3162-§3166of this Subchapter.

(g) The following timeline governs the preparation and implementation of GIEPs:

§3159. Support services.

(a) The GIEP team, during the development, review or revision of a GIEP, shall determine whether the gifted student needs one or more support services.

(b) The GIEP team shall conclude that transportation to and from school psychological services, parent counseling and education, or another service is a support service if the GIEP team determines that one of the following criteria has been met:

(1) The service is an integral part of an educational objective of the student’s GIEP, without which the GIEP cannot be implemented.

(2) The service is needed to ensure the student benefits from or gains access to a gifted education program.

§3160. Educational Placement.

(a) The GIEP team shall base educational placement decisions on the gifted student’s needs.

(b) Districts may use administrative and instructional strategies and techniques in the provision of gifted education for gifted students which do not require, but which may include, categorical grouping of students. The placement shall:

(1) Enable the provision of appropriate specially designed instruction based on the student’s need and ability.

(2) Ensure that the student is able to benefit meaningfully from the rate, level and manner of instruction.

(3) Provide opportunities to participate in acceleration or enrichment, or both, as appropriate for the student’s needs. These opportunities shall go beyond the program that the student would receive as part of a general education.

(c) Districts shall adopt board policies relating to caseloads and class sizes for gifted students which:

(d) Caseload and class size maximums may be waived by the Secretary upon written request by the district for extenuating circumstances.

(e) Gifted educational placement may not be based on one or more of the following:

§3161. Parental placement in private schools.

(a) This Subchapter does not limit the right of parents to have their gifted children educated at private schools completely at private expense.

§3162. Notice.

(a) A school district shall document the provision of written notice to the parents of a gifted student at least 10 school days prior to one or more of the following events:

(1) The school district proposes to conduct a gifted multidisciplinary evaluation or reevaluation of the student.

(2) The school district proposes or refuses to initiate or change the identification, evaluation or educational placement of the student, or proposes or refuses to make any significant changes in the GIEP.

(b) A change in the identification, evaluation, educational placement or GIEP of a gifted student may not 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. 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 an impartial hearing available to the student or the parents under this chapter.

(e) The notice shall inform the parents of the following:

(1) The addresses and telephone numbers of various organizations which are available to assist in connection with the hearing.

(2) The timelines involved in conducting an evaluation, developing a GIEP, and initiating a hearing.

(3) An outside evaluation submitted by the parents shall be considered.

(4) The information in §3164 of this Subchapter.

§3163. Consent.

The district shall document that written parental consent is obtained prior to:

(1) Conducting an initial multidisciplinary evaluation.

(2) Initially placing a gifted student in a gifted program.

(3) Disclosing to unauthorized persons information identifiable to a gifted student.

(4) When completed, the GIEP provided for in §3158 of this Subchapter shall be presented to the parents, along with a notice of recommended assignment signed by the school district superintendent provided for in §3157 and a notice of parental right to an impartial due process hearing under §3164. The notice shall be presented to the parents in person at the conclusion of the GIEP conference or by certified mail within 5-calendar days after the completion of the GIEP conference.

(5) The parents shall have 10-calendar days to respond to a notice of recommended assignment sent by mail or 5 calendar days to respond to a notice presented in person at the conclusion of a GIEP conference. If the parents receive the notice in person and approve the recommended assignment within 5-calendar days, the school district may not implement the GIEP for at least 5-calendar days, to give the parents an opportunity to notify the district within the 5-day period of a decision to revoke the previous approval of the recommended assignment.

§3164. Impartial due process hearing.

(a) Parents may request in writing an impartial due process hearing concerning the identification, evaluation or educational placement of, or the provision of a gifted education to, a student who is gifted or who is thought to be gifted if the parents disagree with the school district’s identification, evaluation or placement of, or the provision of a gifted education to the student.

(b) A school district may request in writing 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 5 days in advance of the 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 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 during the course of 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 legal counsel and accompanied and advised by individuals with special knowledge or training with respect to students who are gifted.

(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-calendar days before the hearing.

(k) A party has the right to present evidence and testimony, including expert medical, psychological or educational testimony.

(l) 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.

(m) The following applies to coordination services for hearings and to 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 its procedures similarly provide for procedural consistency and ensure the rights of the parties. In the absence of its own procedures, a school district which receives a request for an impartial due process hearing shall forward the request to the agency providing coordination services under paragraph (1) without delay.

(3) A hearing officer may not be an employe or agent of a school district in which the parents or student resides, or of an agency which is responsible for the education or care of the student. A hearing officer shall promptly inform the parties of a personal or professional relationship the officer has or has had with any of the parties.

(n) 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.

(o) 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.

§3165. Mediation.

(a) Mediation is a process in which parents and agencies involved in a special education for gifted students dispute may obtain the assistance of an impartial mediator in attempting to reach a mutually agreeable settlement.

(b) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

"Joint session" means a stage of the mediation conference when the mediator meets with the parties and participants together and each party is given a reasonable uninterrupted opportunity to present the issues and concerns.

"Mediation agreement" means a written record of agreement reached by the parties.

"Mediation conference" means a structured, but informal meeting of the parties and participants with a mediator. The purpose of the conference is to develop a mutually acceptable, written agreement that is binding on the parties.

"Mediator" means an impartial, neutral person who helps parties involved in a conflict to develop their own solutions to the dispute. The term does not include a person who makes decisions about the conflict for the parties.

"Participants" means other persons appearing at the mediation conference on behalf of either party, such as other family members and specialists.

"Parties" means the parents and designated agency personnel involved in the conflict.

"Private session" means a private meeting between the mediator and only one of the parties to further clarify that party’s position and to explore possible solutions to the conflict. The mediator may not share information from the private session without consent of the party.

(c) If a 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 GIEP.

(d) During a mediation conference, the mediator shall meet with the parties together in a joint session and individually in private sessions.

(e) Discussions occurring during the mediation session shall be confidential, and no part of the mediation conference shall be recorded.

(f) The mediator may not be called as a witness in future proceedings.

(g) The designated agency involved in the dispute shall send a representative who has the authority to commit resources to the resolution agreed upon by the parties.

(h) The written mediation agreement is not a confidential document and shall be incorporated into the student’s GIEP and is binding on the parties.

(i) The mediation agreement shall be enforceable by the Department.

(j) A GIEP team shall be convened, within 10 school days following the mediation agreement, to incorporate the mediation agreement into the GIEP.

(k) When the mediation conference results in a resolution of the dispute, each party shall receive an executed copy of the agreement at the conclusion of the mediation conference.

(l) Mediation may not be used to deny or delay a party’s right to a due process hearing.

§3166. Confidentiality.

Each agency shall protect the confidentiality of personally identifiable information regarding a gifted student or a student thought to be gifted in accordance with section 13(a) of 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), Chapter 12 (relating to students) and other applicable law."