Current through Reg. 50, No. 13; March 28, 2025
(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.