(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.
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