Delaware Administrative Code
Title 14 - Education
900 - Special Populations
929 - Children with Disabilities Subpart I Special Programs and Unique Educational Alternatives
Section 929-2.0 - Special Programs for Children with Autism

Universal Citation: 14 DE Admin Code 929-2.0

Current through Register Vol. 28, No. 3, September 1, 2024

2.1 The following definitions shall apply to this section:

"Accepted Clinical Practice" means any behavior management procedure or treatment, the effectiveness of which has received clear empirical support as documented by publication in peer reviewed journals or similar professional literature.

"Behavior Management Procedure" means any procedure used to modify the rate or form of a target behavior.

"Behavior Management Target" means any child's behavior that either causes or is likely to cause (a) injury to the child (e.g., self abuse), (b) injury to another person (e.g., aggression), (c) damage to property, (d) a significant reduction in the child's actual or anticipated rate of learning (e.g., self stimulation, noncompliance, etc.) or (e) a significant reduction in the societal acceptability of a child (e.g., public masturbation, public disrobing, etc.).

"Emergency Intervention Procedure" means any procedure used to modify episodic dangerous behavior (e.g., self injurious behaviors, physical aggression property destruction) identified in a behavioral intervention plan.

"Ethical Use" means the application of a procedure in a manner that is consistent with current community values and protects all of a child's rights.

"Informed Consent" means knowing and voluntary consent by the parent(s), based upon a thorough explanation by the program staff member supervising the individualized Behavior Management procedure, of the nature of the procedure, the possible alternative procedures, the expected behavior outcomes, the possible side effects (positive and negative), the risks and discomforts that may be involved, and the right to revoke the Procedure at any time.

"Least Restrictive Procedure" means that behavior management procedure which is the least intrusive into, and least disruptive of, the child's life, and that represents the least departure from normal patterns of living that can be effective in meeting the child's educational needs.

"School" means any public school or program (special education or otherwise), which has enrolled a child who is primarily eligible for special education related services under the autism classification.

2.2 The Statewide Monitoring Review Board (SMRB) shall be generally administered by the Director for State Services for Children with Autism and the DOE's Director of the Exceptional Children and Early Childhood Education Group.

2.2.1 The purpose of the SMRB is to define research based best educational practices for students with autism served in approved programs in Delaware. This includes reviewing and making recommendations to the Secretary regarding the special education and related services for children with autism in approved programs, including programs for students with autism whose placement in private facilities has been authorized by DOE.

2.2.2 The SMRB shall consist of the following members:
2.2.2.1 Director for State Services for Children with Autism.

2.2.2.2 Director of the Exceptional Children and Early Childhood Education Group, or the Director's designee.

2.2.2.3 One administrator from each LEA with an approved program for students with autism, or their designee. The administrator or designee must have experience in, and responsibility for, the program for students with autism.

2.2.2.4 One non administrative experienced professional from each approved program for students with autism. These individuals are nominated by the administrator responsible for the approved program and are subject to the approval of the Director for State Services for Children with Autism.

2.2.2.5 Two nonvoting public representatives nominated annually by the Statewide Parent Advisory Committee. These individuals must not have a child currently served in an approved program.

2.2.3 The SMRB shall operate under the following procedures:
2.2.3.1 The Director of State Services for Children with Autism shall serve as the Chairperson of the Board.

2.2.3.2 A majority of the voting members of the board shall constitute a quorum.

2.2.3.3 Decisions of the Board shall be determined by a majority vote of the quorum.

2.2.3.4 The chairperson shall set mutually agreeable times and places for meetings, which shall be scheduled at least five times per year, contingent upon agenda items.

2.2.3.5 The SMRB shall discharge its responsibilities in accordance with the Act and these regulations.

2.2.3.6 The SMRB shall function in an advisory capacity and the procedural safeguards guaranteed to students with autism, their parents (as defined under the Act), and LEAs or other public agencies, shall not be diminished by the activities of the SMRB.

2.2.4 The SMRB has the following responsibilities:
2.2.4.1 To determine which educational methods and curricula are consistent with research based best practices for students with autism. This includes reviewing and making recommendations regarding proposed new practices.
2.2.4.1.1 Requests for review of practices may be submitted to the SMRB by SMRB members, the Secretary, the State Parent Advisory Committee, superintendents or chief administrators of LEAs.

2.2.4.1.2 If the party making the request for review disagrees with the recommendation of the SMRB regarding best educational practices, they may request the Secretary appoint an independent expert to review the practice. The procedural safeguards guaranteed to students with autism, their parents (as defined under the Act) and LEAs or other public agencies, shall not be diminished by any recommendations of an independent expert appointed by the Secretary.

2.2.4.2 To review, at least annually, educational programming and aggregated performance data for students with autism in approved programs in Delaware.

2.2.4.3 To make recommendations based on this review regarding appropriate strategies, supports, services, and professional development necessary to ensure the implementation of research based best educational practices with respect to the evaluation and educational programming for students with autism.

2.2.4.4 To assist LEAs with approved programs in developing and implementing plans to address the recommendations of the SMRB.

2.2.4.5 To submit an Annual Report by September 1 of each year to the Secretary, the State Board of Education, and the Governor's Advisory Council for Exceptional Citizens.

2.3 A Parent Advisory Committee (PAC) shall be established by each local education agency operating a center for the Delaware Autism Program.

2.3.1 The function of the PAC shall be to advise the LEA on matters pertaining to the local center. A PAC formed under this section may combine its activities and meetings with other local parent organizations or committees serving children with disabilities.

2.3.2 Each PAC shall meet no less than four times each year and shall be representative of the age groups of children with autism served by the local center.

2.3.3 When an LEA operates a residential program, at least one member of the PAC shall be a parent of a child with autism served in the residential program associated with that center.

2.4 A Statewide Parent Advisory Committee (SPAC) shall be established whose membership shall consist of one representative elected annually from each local education agency PAC.

2.4.1 The SPAC shall meet no less than four times each year with the Director of DAP advising on matters pertaining to the program.

2.4.2 The establishment and revision of bylaws for the SPAC shall be by majority vote of all of its eligible members.

2.4.3 A current statewide membership list shall be provided to all parents.

2.4.4 Reimbursement for travel expenses shall be available to members of the SPAC.

2.5 A Peer Review Committee (PRC) shall be established by the Director of the Delaware Autism Program (DAP) and DOE in consultation with the Statewide Monitoring Review Board (SMRB).

2.5.1 Purpose: The purpose of the PRC shall be to review, in light of accepted clinical practice, the professional and clinical issues involved in the use of behavior management procedures to ensure their appropriate use by the staff of an LEA serving children with autism.

2.5.2 Composition: The PRC shall consist of three to five members who shall be competent, knowledgeable professionals with at least three years of post doctoral experience in the theory and ethical application of behavior management procedures. Membership shall be external to the Delaware Autism Program, DOE, any Delaware LEA, and any other State agency or department, excluding State institutions of higher education. Members shall not belong to any in-State committee, council, board or program that deals directly with children with autism.

2.5.3 Operation: The PRC shall elect a chairperson and shall adopt a set of rules to guide its operation. A copy of these rules shall be provided to the DOE and the Director of the DAP.

2.5.4 Peer Review Committee (PRC) Responsibilities:
2.5.4.1 The PRC shall meet at least every three months to review those behavior management procedures requiring after the fact examination.
2.5.4.1.1 A quorum shall consist of a majority of the Committee.

2.5.4.1.2 The PRC chairperson shall announce the dates of review at least one month prior to the review date.

2.5.4.1.3 The PRC shall meet at least 6 times per year to review procedures requiring prior, case by case review that have been granted interim or on going approval. The monthly review shall continue until said procedure has been discontinued or the PRC votes otherwise. This review may be held jointly with HRC.

2.5.4.1.4 The PRC chairperson shall invite staff members of DAP responsible for implementation of behavior management procedures, the Director of DAP, or any other individual (e.g., a consultant to ensure expertise in a specific behavior management procedure under review) to participate as needed in a non voting capacity.

2.5.4.1.5 The PRC shall provide technical assistance when requested by the Program Director to develop a behavior management procedure for children with disabilities engaged in behaviors that pose a significant health risk to the child or others, a significant risk of damage to property, or a significant reduction of learning.

2.5.4.1.6 The PRC shall review and evaluate the training and supervision for the staff that will carry out all behavior management procedures requiring prior, individual review and may evaluate the training of staff carrying out procedures requiring after the fact review.
2.5.4.1.6.1 The PRC shall provide the Program Director with written comments and recommendations concerning the findings of this review.

2.5.4.1.7 The PRC shall keep written minutes of all its meetings and shall submit them to the Director of DAP, the Department of Education and the HRC chairperson.
2.5.4.1.7.1 These minutes shall be submitted within two weeks of each meeting.

2.5.4.1.7.2 An oral summary of the PRC recommendations shall be made within 24 hours following the PRC meeting to the Director of DAP and the HRC chairperson.

2.6 A Human Rights Committee (HRC) shall be established by the Director of the DAP and DOE in consultation with the Statewide Autistic Program Monitoring Review Board.

2.6.1 Purpose: The purpose of the HRC shall be to review the ethical and children rights issues involved in the use of behavior management procedures to ensure their humane and proper application.

2.6.2 Composition: The HRC shall consist of five to ten members representing various occupations, who are not employees or relatives of children enrolled in the DAP, who are not employees of DOE, and who are not members of any in State organization, agency, or program that deals directly with children with autism. No member of the HRC shall be a member of the PRC.

2.6.3 Operation: The HRC shall elect a chairperson and shall adopt a set of rules to guide its operation. A copy of these rules shall be provided to DOE and the Director of the DAP.

2.6.4 Human Rights Committee Responsibilities
2.6.4.1 Whenever a school proposes to use a behavior management procedure requiring review prior to implementation, the HRC shall meet and review the proposed use of the behavior management procedure. This review shall occur within 7 days after the PRC chairperson informs the HRC chairperson of PRC's recommendations.
2.6.4.1.1 A quorum shall consist of a majority of the Committee.

2.6.4.1.2 This review, however, may be held jointly with the PRC.

2.6.4.2 The HRC chairperson shall invite staff members who are responsible for the implementation of behavior management procedures, the Director of DAP, or any other individual (e.g., consultant, parent) to participate as needed in a non voting capacity.

2.6.4.3 The HRC shall develop a written form to be used to ensure that informed parental consent is obtained before implementation of specified behavior management procedures.

2.6.4.4 The HRC shall keep written minutes of all its meetings and shall submit them to the Director of DAP, the Director of DOE's Exceptional Children and Early Childhood Group, and the PRC chairperson.
2.6.4.4.1 These minutes shall be submitted within two weeks of each meeting.

2.6.4.4.2 An oral summary of the HRC recommendations shall be made within 24 hours following the HRC meeting to the Director of DAP and the PRC chairperson.

2.7 Joint responsibilities of the Peer Review and Human Rights Committees are as follows:

2.7.1 Issue a written statement indicating which behavior management procedure(s) shall be recommended for use:
2.7.1.1 Without further PRC and HRC review during the year approved;

2.7.1.2 Without a case by case PRC and HRC review but with after the fact review time lines to be established by the PRC; or

2.7.1.3 Only with prior case by case PRC and HRC before the fact review;

2.7.2 Recommend written modifications, if necessary, of behavior management procedures along with accompanying rationale;

2.7.3 Review a school's proposed Emergency Intervention Procedures for children with autism and issue a written statement indicating which Emergency Intervention Procedures shall be recommended:
2.7.3.1 For use without after the fact reporting to the PRC and HRC; or

2.7.3.2 For use with after the fact reporting to the PRC and HRC;

2.7.4 Issue an advisory, not mandatory, statement presenting a recommended hierarchy of reviewed behavior management procedures according to the Least Restrictive Procedure principle.
2.7.4.1 Notice shall be given to parents of children with autism in the program of the availability upon request, and at no cost to parents, of copies of the reviewed behavior management procedures.

2.7.4.2 A copy shall also be forwarded to the Governor's Advisory Council for Exceptional Citizens.

2.7.5 The PRC chairperson, in cooperation with the HRC chairperson, shall announce the joint PRC and HRC annual review at least one month prior to the review date.
2.7.5.1 At the discretion of either chairperson, Committees may meet jointly or separately to conduct before the fact and after the fact reviews.

2.7.6 Approve, before the fact, the housing of children under age twelve with a child over age sixteen in a community based residential program for children with autism operated by a school district designated and approved by the Secretary as the administering agency for the DAP.

2.7.7 Review, within 30 days of the granting of interim approval, any request by a school for the immediate implementation of a behavior management procedure requiring prior, case by case review.
2.7.7.1 Immediate implementation of a proposed procedure may occur after the Program Director has obtained unanimous interim approval from one PRC member and two HRC members.

2.7.7.2 Proposed prior review procedures not requiring immediate implementation shall be submitted by a school directly to PRC and HRC chairperson to be reviewed within two weeks of submission of the proposal.

2.7.8 Have access to the educational records of any child with autism for purposes of 2.5.1 and 2.6.1 of this section.
2.7.8.1 A quorum of a joint meeting shall consist of a majority of combined membership.

2.7.9 Submit written Procedural Descriptions for Behavior Management and Emergency Interventions.
2.7.9.1 Prior to utilizing a behavior management procedure or an emergency intervention procedure for a particular child with autism, a school shall submit written procedural descriptions for at least annual joint review by the PRC and HRC.
2.7.9.1.1 The annual date of review shall be announced by the HRC chairperson at least one month prior to the review date.

2.7.9.1.2 The school shall submit written procedural descriptions at least two weeks prior to the joint annual review date to the PRC and HRC chairpersons.

2.7.9.1.3 The written descriptions shall contain information determined by PRC and HRC and set forth in their operating rules.

2.7.9.1.4 PRC and HRC may request pertinent information needed for the completion of reviews.

2.7.9.2 After reviewing each behavior management and emergency procedure, the PRC and HRC shall indicate what kind of review each procedure requires (annual, after the fact, or prior case by case review). A school serving children with autism shall then submit proposals in accordance with PRC and HRC recommendations.

2.7.9.3 Behavior management and emergency intervention procedures that require annual review only may then be implemented by a school without further PRC/HRC review until the next annual joint review. A school shall require that the use of these procedures be indicated in a child's IEP.

2.7.9.4 Behavior management and emergency intervention procedures that require after-the-fact review only shall be used by a school without case by case review, but shall be reported after the fact to the PRC by dates specified by the Committee chairperson.
2.7.9.4.1 The school shall submit written records as set forth in PRC and HRC operating rules, or any other relevant information requested by either Committee, to the PRC chairperson at least one week prior to the review date.

2.7.9.4.2 Behavior management procedures that require prior case by case review shall be submitted to the PRC and HRC for joint review prior to implementation.

2.7.9.5 If the PRC and HRC decide not to review the case jointly, the PRC shall first review the proposal.
2.7.9.5.1 The proposal shall contain information determined by PRC and HRC and set forth in their operating rules.

2.7.9.5.2 Recommendations and rationale for the decision shall be provided whenever the PRC fails to recommend use of a proposed procedure.

2.7.9.6 Following the PRC recommendation (or following joint PRC and HRC approval), written informed parental consent shall be obtained by the school.
2.7.9.6.1 If an interim consent is obtained by telephone, then two witnesses to the content of the conversation shall sign a form certifying that the parent(s) gave informed consent. The school must then obtain written verification of this consent from the parent(s).

2.7.9.6.2 Parents may withdraw consent at any time; if said withdrawal is done verbally in person or by telephone, the parent shall provide written verification of withdrawal within 10 days of the initial notice.

2.7.9.7 Whenever the PRC and HRC choose not to meet jointly, the information provided by a school shall be submitted to the HRC along with the PRC's recommendations.
2.7.9.7.1 Recommendations and rationale for the decision shall be provided whenever the HRC fails to recommend the use of a proposed procedure.

2.7.9.7.2 Whenever a proposal is recommended for implementation, an IEP objective shall be developed relating to the behavior management target and the proposed procedure.

2.7.9.8 Whenever the PRC or HRC fail to recommend or modify the proposed procedure, the parent(s) shall be notified by the school.
2.7.9.8.1 If the procedure is to be modified, informed written consent shall be obtained from the parents.

2.7.9.9 The school staff responsible for implementing the behavior management procedure shall provide written reports to the PRC and HRC, summarizing the records (which shall be kept on a daily basis) on the use and results obtained by implementing the procedure.
2.7.9.9.1 Records shall be kept in an objective, quantitative form, permitting easy evaluation of child data.

2.7.9.9.2 The PRC and HRC shall have unrestricted access to all data, records, and reports relating to the behavior management procedures used.

2.7.9.10 Any behavior management or emergency intervention procedure that is developed by a school after the joint annual review date for a particular school year shall be submitted to the PRC and HRC chairpersons for joint review prior to any implementation of the new procedure, unless interim approval has been recommended as described in 2.7.7.

2.8 Private facilities serving autistic children shall have Peer Review and Human Rights Committee policies as follows:

2.8.1 Private facilities serving children with autism located in Delaware shall have Peer Review Committee and Human Rights Committee policies that comply with DELACARE standards (requirements for Residential Child Care Facilities, Department of Services for Children, Youth and Their Families (DSCYF)).

2.8.2 Private facilities serving Delaware children with autism located in other states shall comply with the Peer Review Committee and Human Rights Committee policies used by the state in which the facility is located.
2.8.2.1 Said policies shall be reviewed by Delaware's DOE to determine that they grant protection substantially equivalent to that provided by Delaware for children prior to any recommendation of approval for private placement by the Secretary.

2.8.3 Private facilities serving Delaware children with autism located in states which have no Peer Review Committee and Human Rights Committee policies shall have written Peer Review and Human Rights Committee policies that shall be reviewed by Delaware's DOE in consultation with Delaware's PRC, to determine that they grant protection substantially equivalent to that provided by Delaware for children, prior to any recommendation of approval for private placement by the Secretary.

2.8.4 Private facilities serving Delaware children with autism located in states which require substituted judgment or other court order for the use of aversive or related restrictive procedures, and which have obtained such an order for each Delaware child, shall be deemed to have met the peer review and human rights requirements of this section.

2.9 Whenever psychotropic medication has been prescribed by a physician and appears to affect adversely the educational program of a child with autism, the administrator of the center shall contact the parent and request a medication review with the parent and physician.

2.10 Appropriate liaison with the Department of Health and Social Services (DHSS) and other agencies shall be established by the Director of DAP and the DOE.

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