Arkansas Administrative Code
Agency 005 - DEPARTMENT OF EDUCATION
Division 18 - Special Education
Rule 005.18.13-001 - ADE 18.00 - Regulations Governing Residential Placement
Universal Citation: AR Admin Rules 005.18.13-001
Current through Register Vol. 49, No. 9, September, 2024
18.01 REGULATORY AUTHORITY
18.01.1 These regulations shall be known as
Arkansas Department of Education regulations allocating public school funds for
the education of residentially placed students and defining educational
services in such placements.
18.01.2 These regulations are enacted
pursuant to the State Board of Education's authority under Ark. Code Ann.
6-11-105,
6-41-202,
6-18-202,
6-20-104, and
6-20-107.
18.02 PURPOSE
18.02.1 It is the purpose of these
regulations to allocate public school funds for the education of residentially
placed students.
18.02.2 It is
further the purpose of these regulations to define the educational services in
such placements.
18.03 DEFINITIONS
18.03.1 In addition to the
definitions provided in Section 2.00 of these Regulations, the following
definitions apply specifically to this Section 18.00.
18.03.2 DHS - Department of Human
Services
18.03.3 Juvenile - a
person who is eighteen (18) years old or less.
18.03.4 Juvenile Detention Facility (JDF) -
Any facility operated by a political subdivision of the State for the temporary
care of juveniles alleged to be delinquent or adjudicated delinquent, and
awaiting disposition, who require secure custody in a physically restricting
facility. Under Ark. Code Ann.
9-27-330(a)(ll),
such facility shall afford opportunities for education, recreation, and other
rehabilitative services to adjudicated delinquents who may be ordered by the
court to remain in the juvenile detention facility for an indeterminate period
not to exceed ninety (90) days.
18.03.5 Student without disabilities - For
purposes of these regulations, a student who has NOT been identified as
disabled in accordance with the IDEA, and Ark. Code Ann.
6-41-202, et seq., shall be
considered nondisabled.
18.03.6
Student with disabilities - For the purposes of these regulations, a student
with a disability means a student identified pursuant to the IDEA and Ark. Code
Ann. 6-41-202, et seq., as needing
special education and related services (inclusive of those presently receiving
services).
18.03.7 Residential
placement in state - For the purposes of these regulations, such residential
placement in state means -
18.03.7.1 One of
the following licensed facilities -
A.
Inpatient psychiatric treatment facilities licensed by the Arkansas Department
of Human Services (DHS);
B. Alcohol
and drug treatment facilities licensed by the Arkansas Department of Human
Services;
C. Easter Seals of
Arkansas in Little Rock;
D.
Arkansas Pediatrics Facility in Pulaski County;
E. Millcreek ICF-MR in Fordyce;
F. Brownwood ICF-MR in Fort Smith.
18.03.7.2 The facility has an
approved special education component; as granted by the ADE, Special Education
Unit on an annual basis. Such placement does not include the Arkansas School
for the Blind, the Arkansas School for the Deaf or the Arkansas School for
Mathematics and Sciences.
18.03.8 Residential Placement Out-of-State -
For the purposes of these regulations, when a student with disabilities is
placed in a residential treatment facility outside the State of Arkansas, the
special education component of such a facility must be approved by the ADE,
Special Education Unit and must be operating under the appropriate licensure of
the state in which it is located.
18.03.9 Residency - Ark. Code Ann.
6-18-202 establishes residency
requirements for students attending public schools in the State of Arkansas.
Students affected by this statute include both those with and without
disabilities.
18.04 RESIDENTIAL PLACEMENT IN STATE - STUDENTS WITHOUT DISABILITIES
18.04.1 Assignment of responsibility.
18.04.1.1 When a nondisabled student is
placed for non-educational reasons in a residential treatment facility for
treatment, the district where the residential treatment facility is located is
the student's resident district. This district is responsible for educating the
student.
18.04.1.2 When a
nondisabled student who is a ward of the State is placed in a residential
treatment facility, the district where the facility is located is responsible
for educating the student.
18.04.1.3 When a nondisabled student is
placed in a residential treatment facility for educational purposes by a parent
or agent other than the school district, the parent or agent remains
responsible for the education of the student.
18.04.2 Procedures for educational
management.
18.04.2.1 Each school district
must designate an individual who will be responsible for ensuring compliance
with these regulations. This may be the district superintendent or a
designee.
18.04.2.2 When a
nondisabled student is placed in a residential facility, the facility must
notify the responsible school district (superintendent or designee) within
seven (7) calendar days of the student's admission. The district's
superintendent or designee should also be informed. Failure of the facility to
notify the responsible district in a timely fashion may result in loss of ADE
approval of the residential treatment facility's special education
program.
18.04.2.3 The district
superintendent or designee shall convene a conference by a review team within
seven (7) calendar days of notice by the residential treatment facility that
the student is in a residential program. This conference may be conducted
face-to-face or via a telephone call.
18.04.2.4 The review team shall be composed
of, at a minimum, a representative from the district, a representative from the
residential treatment facility, and a DHS representative if the student is
receiving services from one or more DHS Divisions.
18.04.2.5 The review team shall review
information available on the student and determine whether a referral for
consideration of eligibility for special education and related services is
warranted.
18.04.2.6 When the
review team determines the student should be referred for consideration of
eligibility for special education, a referral form must be completed and a
referral conference conducted following the process in §4.00 of State
Special Education regulations.
18.04.2.7 When the review team determines
that the student should not be referred for consideration for special education
and related services, it must identify the general educational and
non-educational needs of the student.
18.04.2.8 Based on the identified needs of
the nondisabled student, the review team will determine and document where the
educational program of the student will be implemented. The inter-linkage of
the treatment program needs and educational programming must be discussed in
reaching a decision on an appropriate educational setting.
18.04.2.9 Should the local review team be
unable to agree upon where the educational program of the student will be
implemented, a determination must be requested from the state level review
panel. Requests for a determination from the state level review panel shall be
submitted in writing to the Administrator, Dispute Resolution, ADE, Special
Education Unit.
18.04.2.10 From the
time of the request for a state level review until a determination is made, the
student will remain in his/her present educational setting.
18.04.2.11 The state level review panel will
be composed of three (3) persons: one (1) from the ADE, one (1) from DHS and
the third will be the Coordinator of the Behavior Intervention Consultant
Network or other appropriate ADE staff.
18.04.2.12 Within 30 calendar days of receipt
of the written request, the state level review panel shall convene, review all
information and render a final decision as to where the education program of
the student will be implemented. The panel may extend the process by an
additional 15 days should circumstances warrant.
18.04.2.13 The state level review panel's
decision will be considered final, will be rendered in writing and will be sent
to the local review team for implementation.
18.04.3 Assignment of costs.
18.04.3.1 For nondisabled students,
"educational costs" are limited to only those costs incurred for direct
educational instruction of the student.
18.04.3.2 All other services provided for the
student are considered non-educational and are not reimbursable under these
regulations. Such other costs will be borne by DHS, Medicaid, private
insurance, the parent or by any combination thereof.
18.04.3.3 Residential treatment facilities
must submit a bill to the school district for educational costs only. The
invoice must be itemized to reflect the specific services provided. Invoices
must be submitted to the school district in a timely manner in order for the
district to seek reimbursement from the ADE, Special Education Unit.
18.04.4 Funding.
18.04.4.1 A local school district may access
funds through the ADE, Special Education Unit for reimbursement for educational
costs on nondisabled students placed in residential treatment
facilities.
18.04.4.2 The maximum
amount a district may be reimbursed on a per student basis for actual
educational costs will be the Formula Foundation Aid times 2.00.
18.04.4.3 The local school district shall not
be responsible for educational costs exceeding its maximum reimbursement rate
for those nondisabled students receiving educational services in a residential
treatment facility.
18.04.4.4 When
the requests for reimbursement exceed the amount of funds available, the
reimbursement will be prorated.
18.04.5 Extended School Year Services (ESY).
18.04.5.1 There is no provision for extended
school year (educational) services to nondisabled students when schools are not
in session. This applies to nondisabled students in residential placements, as
well as their nondisabled peers who attend the local public school. Therefore,
there is no need for a district to convene a review team during the summer
months when school is not in session.
18.04.5.2 Residential treatment facilities
cannot bill school districts for educational services provided to nondisabled
students during the summer months.
18.05 RESIDENTIAL PLACEMENT IN STATE - STUDENTS WITH DISABILITIES
18.05.1 Assignment
of responsibility.
18.05.1.1 For students with
disabilities in state-operated facilities (such as the Human Development
Centers) the facility is responsible for procedural safeguards and the
provision of FAPE.
18.05.1.2 When a
student with a disability is placed for non-educational reasons in a
residential treatment facility for treatment, the district where the facility
is located is the student's resident district. The district shall be
responsible for procedural safeguards and the provision of FAPE.
18.05.1.3 When a student with a disability
who is a ward of the state is placed in a residential treatment facility, the
district where the residential treatment facility is located is responsible for
educating the student.
18.05.1.4
When a student with a disability is placed in a residential treatment facility
for educational purposes by a school district, the placing district remains
responsible for procedural safeguards and the provision of FAPE.
18.05.1.5 When a student with a disability is
placed in a residential treatment facility for educational purposes by a parent
or agent other than the school district, the parent may petition the district
where the student permanently resides (home district, usually that of the
student's parent or guardian) for provision of procedural safeguards and
FAPE.
18.05.2 Procedural
safeguards.
18.05.2.1 The procedural
safeguards specified in §9.00 of these regulations shall be
followed.
18.05.3
Assignment of costs.
18.05.3.1 The State
Department of Education, a public school district, or an open-enrollment
charter school shall not be liable for any education costs associated with the
placement of a juvenile in an in-state residential or inpatient facility for
any care and treatment, including psychiatric treatment, unless:
A. The Department authorized public payment
for educational costs based on a determination that the educational program and
facilities are appropriate for the juvenile and the Department has approved the
facility's education program; and
B. Each program authorization precedes the
placement.
C. If the program is not
authorized prior to the placement, the Department, public school districts, or
open-enrollment charter schools shall not be responsible for education or other
related costs, nor shall they be subject to any order to pay for educational or
other related costs.
18.05.3.2 The liability of the Department, a
public school district, or an open-enrollment charter school for the
educational costs or other related costs shall be limited to -
A. The reimbursement rate established by the
Department for a juvenile placed in a residential or inpatient
facility.
18.05.3.3 For
identified students with disabilities, those costs defined as being educational
in accordance with the IDEA will be borne by the district responsible for
provision of procedural safeguards and FAPE. For students in state-operated
facilities, the facility assumes those costs.
18.05.3.4 All other costs will be borne by
either DHS, Medicaid, private insurance, the parent or by any combination
thereof.
18.05.4
Funding.
18.05.4.1 School districts maybe
reimbursed for the educational costs of students with disabilities, including
those in school districts not qualifying for any State Equalization Aid, who
have been placed in approved residential treatment facilities, as defined by
the ADE, Special Education Unit.
18.05.4.2 The maximum amount to be reimbursed
to a district on a per student basis is the amount equal to the product of the
Formula Foundation Aid times 2.10, regardless of the setting in which the
education is provided. (For example, there may be instances where the student
resides in a residential treatment facility but attends the public school for
educational purposes.)
18.05.4.3
When the requests for reimbursement exceed the amount of funds available, the
reimbursement will be prorated.
18.05.5 Extended School Year Services (ESY).
18.05.5.1 Not all students with disabilities
receiving educational services in residential placement will be eligible for or
in need of ESY services.
18.05.5.2
Determination of student eligibility for ESY services is made by the school
district based on the regulations governing ESY in §19.00 of these
regulations.
18.05.6
This section shall not apply to a juvenile placed in an Arkansas juvenile
detention facility as defined in Ark. Code Ann.
6-20-104.
18.06 RESIDENTIAL PLACEMENT OUT-OF-STATE - CHILDREN WITH DISABILITIES
18.06.1 Assignment
of responsibility.
18.06.1.1 When a student
with a disability is placed in a residential treatment facility for educational
purposes by a school district, the placing school district remains responsible
for procedural safeguards and the provision of FAPE.
18.06.1.2 When a student with a disability is
unilaterally placed in a residential facility for educational purposes by a
parent or agent other than the school district, the parent may petition the
school district here the student permanently resides (home school district,
usually that of the student's parent or guardian) for consideration of the
provision of procedural safeguards and FAPE.
18.06.1.3 In accordance with the Interagency
Agreement between the ADE and DHS, when a child with a disability is a ward of
the state and is placed in a residential treatment facility outside the
boundaries of the State of Arkansas, the ADE is responsible for procedural
safeguards and FAPE.
18.06.2 Procedural safeguards.
18.06.2.1 The procedural safeguards specified
in §9.00 of these regulations shall be followed.
18.06.3 Assignment of costs.
18.06.3.1 The Department of Education, a
public school district, or an open-enrollment charter school shall not be
liable for any educational costs or other related costs associated with the
placement of a juvenile in an out-of-state residential or inpatient facility
for any care and treatment, including psychiatric treatment, unless:
A. At the time of placement:
1. The juvenile qualifies as disabled under
the Individuals with Disabilities Education Act,
20 U.S.C. §
1400 et seq.; and
2. Payment is required under the Individuals
with Disabilities Education Act;
B. The Department authorizes public payment
for educational costs based on a determination that the educational program and
facilities are appropriate for the juvenile and the Department has approved the
facility's education program; and
C. Each program authorization precedes the
placement.
1. If the program is not
authorized prior to placement, the department, public school districts, or
open-enrollment charter schools shall not be responsible for education or other
related costs, nor shall they be subject to any order to pay for educational or
other related costs.
18.06.3.2 Nothing in this section shall be
construed to require payment by the Department, a public school district, or an
open-enrollment charter school for education costs and other related costs
associated with the placement of a juvenile in an out-of-state residential or
inpatient facility for any care or treatment, including psychiatric treatment,
prior to April 7, 2005.
18.06.3.3
For identified students with disabilities, those costs defined as being
educational in accordance with the IDEA will be borne by the district/agency
responsible for provision of procedural safeguards and FAPE.
18.06.3.4 All other costs will be borne by
either DHS, Medicaid, private insurance, the parent or by any combination
thereof.
18.06.3.5 The liability of
the Department, a public school district, or an open-enrollment charter school
for the educational costs or other IDEA related costs shall be limited to the
lesser of -
A. The reimbursement rate
established by the Department for a juvenile placed in a residential or
inpatient facility; or,
B. The
normal and customary educational cost reimbursement rate of the state in which
a juvenile is placed in an out-of-state residential or inpatient facility as
determined by the Department.
18.06.4 Funding.
18.06.4.1 School districts may request
reimbursement for the educational costs of a student with disabilities placed
in an approved residential treatment facility located outside the boundaries of
Arkansas. Reimbursement may be used to fund the cost of such placement incurred
by a school district.
18.06.4.2
Reimbursement for this cost to the district will be calculated on the basis of
Ark. Code Ann.
6-20-107(d)(2).
18.06.4.3 When requests for reimbursement
exceed the amount of funds available, the reimbursement will be
prorated.
18.06.5
Extended School Year Services (ESY).
18.06.5.1
Not all students with disabilities receiving educational services in
residential placement will be eligible for or in need of ESY
services.
18.06.5.2 Determination
of student eligibility for ESY services is made by the school district/agency
based on the regulations governing ESY in §19.00 of these
regulations.
18.07 JUVENILE DETENTION FACILITIES
18.07.1 General.
18.07.1.1 For the purposes of these
regulations, juvenile detention facilities are designated as approved
residential treatment facilities.
18.07.1.2 Students detained in a juvenile
detention facility for nine (9) days or less.
A. The juvenile detention facility and the
district where the juvenile detention facility is located are designated as
responsible for educating the student consistent with federal and state laws
for any period of time the student is being detained in the facility.
B. The resident district of a student who is
being detained in a juvenile detention facility shall work cooperatively with
the juvenile detention facility and the district where the juvenile detention
facility is located to provide the student with the curriculum, textbooks, or
other materials necessary to educate the student for the first nine (9) days
that the student is being detained in the facility either awaiting adjudication
or pursuant to court order.
C. The
resident district shall keep the student enrolled in the district for the first
nine (9) days that the student is being detained in the facility.
D. The juvenile detention facility must
provide the student's resident school district a weekly attendance record for
each of that district's students in the facility, regardless of length of
stay.
18.07.1.3 Students
detained in a juvenile detention facility for ten (10) days or more.
A. The juvenile detention facility and the
district where the juvenile detention facility is located are designated as
responsible for educating the student consistent with federal and state laws
for any period of time the student is being detained in the facility.
B. The district where the juvenile detention
facility is located shall work cooperatively with the juvenile detention
facility to provide the student with the curriculum, textbooks, or other
materials necessary to educate the student.
C. Immediately upon receiving notice that a
student has been detained in a juvenile detention facility for ten (10) days or
more, the resident district shall drop the student from enrollment.
18.07.1.4 The resident district of
a student who is being detained in a juvenile detention facility is designated
as responsible for the timely transfer of a student's educational records to
the district where the juvenile detention facility is located upon notification
by the court or district where the facility is located of the student's
placement in a juvenile detention facility.
18.07.2 Educational services for nondisabled
students.
18.07.2.1 In order to be eligible
for public school funds, each juvenile detention facility must provide the
following educational services for nondisabled students -
A. The teachers employed by the juvenile
detention facility must hold a valid teaching license from the Arkansas
Department of Education.
B. The
maximum teacher/student caseload must be 1 to 15 without a paraprofessional and
1 to 24 with a full time paraprofessional.
C. The juvenile detention facility must
provide instruction that addresses the State's Curriculum Standards and
educational skills needed by students and appropriately address the age ranges
and the abilities of the students in the facility.
D. The juvenile detention facility must
provide appropriate instructional and supplemental materials and media as are
needed to enhance student instruction. Such materials include, but are not
limited to, reference materials, dictionaries, maps, reading materials, and
computer enhanced instructional software and/or internet access.
E. The juvenile detention facility must
provide planned instructional time in each school day averaging not less than
six (6) hours per day or thirty (30) hours per week.
18.07.2.2 A school district which receives a
student after attendance at a juvenile detention facility shall not use
absences incurred as a result of detention as a basis for denial of
credit.
18.07.3
Educational services for disabled students.
18.07.3.1 In order to be eligible for public
school funds, each jurisdictional school district and juvenile detention
facility must provide the following educational services for disabled students
-
A. FAPE consistent with the student's
IEP.
B. The teacher, employed by
the JDF or local school district, who is implementing the IEP of a student with
a disability must either -
1. Hold a valid
teaching license as a special education teacher, or
2. Meet the qualifications in §18.07.2.1
A above and implement the IEP in collaborative consultation with licensed
special education personnel.
C. The procedural safeguards specified in
these regulations shall be followed for those students identified as disabled
and for those suspected of being disabled.
18.07.4 Funding for students in juvenile
detention facilities.
18.07.4.1 The resident
district of a student detained in a juvenile detention facility for nine (9)
days or less shall continue to receive funding based on the student's
enrollment (average daily membership) in the district for those nine (9) days
or less for the costs of providing educational services to students in the
facility in cooperation with the juvenile detention facility and the district
where the facility is located.
18.07.4.2 The juvenile detention facility may
receive reimbursement from the local school district in which the facility is
located for the costs of providing educational services to students in the
facility, based upon the following -
A. For
nondisabled students, educational costs are costs incurred for direct
educational instruction and include salaries and benefits of teachers and
paraprofessionals, staff development costs and substitute pay.
B. For students with disabilities under the
IDEA, educational costs include all costs incurred in the provision of
FAPE.
C. For students suspected of
having disabilities as defined by the IDEA, educational costs shall include
costs incurred in the evaluation process.
18.07.4.3 The juvenile detention facility and
the local school district in which the juvenile detention facility is located
must jointly determine the education costs incurred by the facility.
18.07.4.4 The local school district in which
the juvenile detention facility is located must reimburse the juvenile
detention facility for educational costs incurred up to an amount not to exceed
the Formula Foundation Aid, times the approved student capacity of the
facility.
18.07.4.5 If the juvenile
detention facility and the local school district cannot agree on an amount for
reimbursement, either entity may appeal to the ADE for a final
decision.
18.07.4.6 The ADE must
reimburse local school districts which have juvenile detention facilities on a
quarterly basis based upon the district requesting such reimbursements.
A. The quarterly reimbursement amount will be
determined by dividing the amount identified in § 18.07.4.43 - by four
(4).
B. Should costs decrease, the
local school district in which the facility is located must notify the ADE,
Special Education Unit within thirty (30) days of revised costs.
C. Any adjustments to reimbursements will be
made in the fourth (4th) quarter.
18.07.4.7 The jurisdictional local school
district may request reimbursement for the costs of educational services
provided to students in juvenile detention facilities and incurred by the local
school district.
18.07.4.8 The
juvenile detention facility must provide the jurisdictional local school
district a quarterly attendance record for each student in the facility,
regardless of length of stay.
18.08 JUVENILE TREATMENT CENTERS (FORMERLY KNOWN AS SERIOUS OFFENDER PROGRAMS)
18.08.1
It shall be the responsibility of each juvenile treatment center to report the
attendance of its students in the education program by providing quarterly
attendance reports to the Department of Human Services, Division of Youth
Services (DYS). DYS will provide the quarterly attendance information to the
Arkansas Department of Education. Funding will be disbursed to DYS in support
of education services within DYS juvenile treatment centers based upon a
legislative appropriation for this purpose.
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