(a) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Nonpublic or non-district operated day program--A
nonpublic or non-district operated day program includes the provision
of special education and related services to one or more Texas public
school students during school hours by someone other than school district
personnel in 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 day placement in
order to facilitate the student's attainment of reasonable educational
progress and to provide the student a free appropriate public education
(FAPE).
(2) Nonpublic or non-district operated day program
provider--A nonpublic or non-district operated day program provider
is an 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
these services. These providers include:
(A) a county system operating under application of
former law as provided in Texas Education Code (TEC), §11.301;
(B) a regional education service center established
under TEC, Chapter 8;
(C) a nonpublic day school; or
(D) any other public or private entity with which a
school district enters into a contract under TEC, §11.157(a),
for the provision of special education services in a facility not
operated by a school district.
(3) School district--The definition of a school district
includes independent school districts established under TEC, Chapter
11, Subchapters A-F, and open-enrollment charter schools established
under TEC, Chapter 12, Subchapter D.
(b) Nonpublic or non-district operated day program
requirements. A school district may contract with a nonpublic or non-district
operated day program provider in accordance with the requirements
in this section.
(1) Before a student's ARD committee places a student
with a disability in, or refers a student to, a nonpublic or non-district
operated day 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 to, a nonpublic or non-district
operated day program, the district shall initiate and conduct an onsite,
in-person review of the program provider's facility 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 or non-district operated day 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 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 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 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 services must
be made for each student.
(c) Notification. Within 30 calendar days from an ARD
committee's decision to place or continue the placement of a student
in a nonpublic or non-district operated day program, a school district
must electronically submit to the Texas Education Agency (TEA) notice
of, and information regarding, the placement in accordance with submission
procedures specified by TEA.
(1) If the nonpublic or non-district operated day 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 or non-district day 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 or non-district operated day 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 the nonpublic or non-district operated
day program. Nonpublic or non-district operated day 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
or non-district operated day 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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