Current through Reg. 49, No. 38; September 20, 2024
(a) Definitions. The following words and
terms, when used in this section, shall have the following meanings unless the
context clearly indicates otherwise.
(1)
School district--The definition of a school district includes independent
school districts established under Texas Education Code (TEC), Chapter 11,
Subchapters A-F, and open-enrollment charter schools established under TEC,
Chapter 12, Subchapter D.
(2)
Nonpublic residential program--A nonpublic residential program includes the
provision of special education and related services to one or more Texas public
school students by someone other than school district personnel at a facility
not operated by a school district. A student placed in this program has been
determined by his or her admission, review, and dismissal (ARD) committee to
require a residential placement in order to facilitate the student's attainment
of reasonable educational progress and to provide the student a free
appropriate public education (FAPE). It is not a placement intended primarily
for the provision of medical care and treatment.
(3) Nonpublic residential program provider--A
nonpublic residential program provider is a public or private entity with one
or more facilities that contracts with a school district for the provision of
some or all of a student's special education and related services when the
school district is unable to provide those services and maintains current and
valid licensure by the Texas Department of Family and Protective Services, the
Texas Health and Human Services Commission, or another appropriate state
agency. A provider that a school district contracts with only for the provision
of related services is not subject to the requirements of this
section.
(b) Nonpublic
residential program requirements. A school district may contract with a
nonpublic residential program provider when the student's ARD committee
determines that a residential placement is necessary in order for the student
to receive a FAPE in accordance with the requirements of this section.
(1) Before a student's ARD committee places a
student with a disability in, or refers a student to, a nonpublic residential
program, the ARD committee shall initiate and conduct a meeting to develop an
individualized education program (IEP) for the student in accordance with 34
Code of Federal Regulations (CFR), §§300.320-300.325, state statutes,
and commissioner of education rules in this chapter'.
(2) Before a student's ARD committee places a
student with a disability in, or refers a student with a disability to, a
nonpublic residential program, the district shall initiate and conduct an
in-person, onsite review of the program provider's facility and program to
ensure that the program is appropriate for meeting the student's educational
needs.
(3) The appropriateness of
the placement and the facility shall be documented in the IEP annually. The
student's ARD committee may only recommend a nonpublic residential program if
the committee determines that the nature and severity of the student's
disability and special education needs are such that the student cannot be
satisfactorily educated in the school district.
(A) The student's IEP must list which
services the school district is unable to provide and which services the
nonpublic residential program will provide.
(B) At the time the ARD committee determines
placement, the ARD committee shall establish, in writing, criteria and a
projected date for the student's return to the school district and document
this information in the IEP.
(C)
The school district shall make a minimum of two onsite, in-person visits
annually, one announced and one unannounced, and more often if directed by the
Texas Education Agency (TEA), to:
(i) verify
that the program provider can and will provide the services listed in the
student's IEP that the provider has agreed to provide to the student;
(ii) obtain written verification that the
facility meets minimum standards for health and safety and holds all applicable
local and state accreditation and permit requirements;
(iii) verify that the program provider's
staff who work with the student have been subject to criminal background checks
(to include fingerprinting) that meet the standards applicable to public school
employees;
(iv) verify that the
program provider has developed written policies, procedures, and operating
guidelines that set forth necessary standards and steps to be followed to
ensure the student maintains the same rights as other public school students
with disabilities, including when the student is subject to emergency
behavioral interventions or disciplinary actions, as well as to ensure the
prohibition of aversive techniques as defined by TEC, §37.0023;
and
(v) verify that the educational
program provided at the facility is appropriate and the placement is the least
restrictive environment for the student.
(4) The placement of more than one student in
the same facility may be considered in the same onsite visit to the facility.
However, the IEP of each student must be individually reviewed and a
determination of appropriateness of placement and service must be made for each
student.
(5) When a student who is
placed by a school district in a nonpublic residential program changes his or
her residence to another Texas school district and the student continues in the
contracted placement, the school district that negotiated the contract shall be
responsible for the residential contract for the remainder of the school
year.
(c) Notification.
Within 30 calendar days from an ARD committee's decision to place or continue
the placement of a student in a nonpublic residential program, a school
district must electronically submit to TEA notice of, and information
regarding, the placement in accordance with submission procedures specified by
TEA.
(1) If the nonpublic residential program
provider is on the commissioner's list of approved providers, TEA will review
the student's IEP and placement as required by
34 CFR, §
300.120, and, in the case of a placement in
or referral to a private school or facility,
34 CFR, §
300.146. After review, TEA will notify the
school district whether federal or state funds for the program placement are
approved. If TEA does not approve the use of funds, it will notify the school
district of the basis for the non-approval.
(2) If the nonpublic residential program
provider is not on the commissioner's list of approved providers, TEA will
begin the approval procedures described in subsection (d) of this section.
School districts must ensure there is no delay in implementing a child's IEP in
accordance with 34 CFR,
§
300.103(c).
(3) If a nonpublic residential program
placement is ordered by a special education hearing officer or court of
competent jurisdiction, the school district must notify TEA of the order within
30 calendar days. The program provider serving the student is not required to
go through the approval procedures described in subsection (d) of this section
for the ordered placement. If, however, the school district or other school
districts intend to place other students in the program, the program provider
will be required to go through the approval procedures to be included on the
commissioner's list of approved providers.
(d) Approval of a nonpublic residential
program. Nonpublic residential program providers must have their educational
programs approved for contracting purposes by the commissioner. Approvals and
reapprovals will only be considered for those providers that have a contract
already in place with a school district for the placement of one or more
students or that have a pending request from a school district. Reapproval can
be for one, two, or three years, at the discretion of TEA.
(1) For a program provider to be approved or
reapproved, the school district must electronically submit to TEA notice of,
and information regarding, the placement in accordance with submission
procedures specified by TEA. TEA shall begin approval procedures and conduct an
onsite visit to the provider's facility within 30 calendar days after TEA has
been notified by the school district and has received the required submissions
as outlined by TEA. Initial approval of the provider shall be for one calendar
year.
(2) The program provider may
be approved or reapproved only after, at minimum, a programmatic evaluation and
a review of personnel qualifications, adequacy of physical plant and equipment,
and curriculum content.
(3) TEA may
place conditions on the provider to ensure the provision of a FAPE for students
who have been placed in a nonpublic residential program during the provider's
approval period or during a reapproval process.
(4) If TEA does not approve, does not
reapprove, or withdraws an approval from a program provider, a school district
must take steps to remove any students currently placed at the provider's
facility, or cancel a student's planned placement, as expeditiously as
possible.
(5) TEA may conduct
announced or unannounced onsite visits at a program provider's facility that is
serving one or more Texas public school students in accordance with this
section and will monitor the program provider's compliance with the
requirements of this section.
(e) Criteria for approval. Requests for
approval of state and federal funding for nonpublic residential program
placements shall be negotiated on an individual student basis through a
residential application submitted by the school district to TEA.
(1) A residential application may be
submitted for educational purposes only. The residential application shall not
be approved if the application indicates that the:
(A) placement is due primarily to the
student's medical problems;
(B)
placement is due primarily to problems in the student's home;
(C) district does not have a plan, including
criteria and a projected date, for the student's return to the local school
program;
(D) district did not
attempt to implement lesser restrictive placements prior to residential
placement (except in emergency situations as documented by the student's ARD
committee);
(E) placement is not
cost effective when compared with other alternative placements; or
(F) residential facility provides unfundable
or unapprovable services.
(2) The placement, if approved by TEA, shall
be funded as follows:
(A) the education cost
of nonpublic residential program contracts shall be funded with state funds on
the same basis as nonpublic day program contract costs according to TEC,
§48.102;
(B) related services
and residential costs for nonpublic residential program contracts shall be
funded from a combination of fund sources. After expending any other available
funds, the district must expend its local tax share per average daily
attendance and 25% of its Individuals with Disabilities Education Act, Part B
(IDEA-B), formula base planning amount (or an equivalent amount of state and/or
local funds) for related services and residential costs. If this is not
sufficient to cover all costs of the placement, the district through the
residential application process may receive IDEA-B discretionary residential
funds to pay the balance of the nonpublic residential contract placement(s)
costs; and
(C) funds generated by
the formula for residential costs described in subparagraph (B) of this
paragraph shall not exceed the daily rate recommended by the Texas Department
of Family and Protective Services for the general residential operation intense
service level of care.
(3) Contracts between school districts and
approved nonpublic residential program providers shall not begin prior to
August 1 of the contracted program year and must not extend past July
31.
(4) Amendments to a contract
must be electronically submitted to TEA in accordance with submission
procedures specified by TEA no later than 30 calendar days from the change in
placement or services.
(f) Contract for out-of-state nonpublic
residential programs. School districts that contract for out-of-state nonpublic
residential programs shall do so in accordance with the rules in this section,
except that the program provider must be approved by the appropriate agency in
the state in which the facility is located rather than by TEA.