| (a) Parties. The state agencies named in this subsection are
parties to this memorandum of understanding (MOU) and will be collectively
referred to as the "parties." The term "Health and Human Service (HHS) agencies"
will refer to all parties except the Texas Education Agency, Texas Juvenile
Probation Commission, and Texas Youth Commission.
(1) Texas Education Agency (TEA);
(2) Texas Department of Human Services (TDHS);
(3) Texas Department of Mental Health and Mental Retardation
(TDMHMR);
(4) Texas Department of Health (TDH);
(5) Texas Department of Protective and Regulatory Services
(PRS);
(6) Texas Interagency Council on Early Childhood Intervention
(ECI);
(7) Texas Commission on Alcohol and Drug Abuse (TCADA);
(8) Texas Juvenile Probation Commission (TJPC); and
(9) Texas Youth Commission (TYC).
(b) Purpose. In accordance with Texas Education Code (TEC),§29.012(d),
the purpose of this MOU is to:
(1) establish the respective responsibilities of school districts
and of residential facilities (RFs) for the provision of a free appropriate
public education (FAPE), as required by the Individuals with Disabilities
Education Act (IDEA)(20 USC §1400 et seq.) and its subsequent amendments,
including each requirement for children with disabilities who reside in those
facilities;
(2) coordinate regulatory and planning functions of the parties;
(3) establish criteria for determining when a public school
will provide educational services;
(4) provide for appropriate educational space when education
services will be provided at the residential facility;
(5) establish measures designed to ensure the safety of students
and teachers; and
(6) provide for binding arbitration consistent with Texas Government
Code, Chapter 2009, and Civil Practice and Remedies Code, §154.027.
(c) Definitions. The following words and terms, when used in
this MOU, shall have the following meaning, unless the context clearly indicates
otherwise.
(1) Consistent with TEC, §5.001(8), "residential facility"
(RF) means:
(A) a facility operated by a state agency or political subdivision,
including a child placement agency, that provides 24-hour custody or care
of a person 22 years of age or younger, if the person resides in the facility
for detention, treatment, foster care, or any non-educational purpose; and
(B) any person or entity that contracts with or is funded,
licensed, certified, or regulated by a state agency or political subdivision
to provide custody or care for a person under subparagraph (A) of this paragraph.
RFs include, but are not limited to:
(i) child care facilities or institutions;
(ii) independent foster group homes providing basic, therapeutic
or rehabilitative services;
(iii) independent foster family homes providing basic, therapeutic
or rehabilitative services;
(iv) agency foster family/group homes verified by a child placing
agency licensed by PRS;
(v) intermediate care facilities for the mentally retarded
(ICFs-MR);
(vi) psychiatric treatment centers;
(vii) therapeutic camps or ranches;
(viii) residential treatment centers licensed by PRS;
(ix) nursing facilities;
(x) TYC halfway houses and contract facilities;
(xi) emergency shelters;
(xii) hospitals;
(xiii) juvenile pre-adjudication detention facilities;
(xiv) juvenile post-adjudication secure correctional facilities;
(xv) residential facilities funded and/or licensed by TCADA;
(xvi) settings other than the student's natural or adoptive
home in which residential services are provided in programs authorized by
the Social Security Act, §1915(c); and
(xvii) state hospitals, state schools, and state centers operated
by TDMHMR.
(2) "Student with a disability" means an individual who is
eligible to receive special education and related services in accordance with
IDEA and its implementing regulations, Code of Federal Regulations, Title
34, §§300.1 et seq., and state laws and rules, including, without
limitation, TEC, Chapter 29, and Chapter 89 of this title (relating to Adaptations
for Special Populations).
(3) Consistent with 20 USC §1401(8), "free appropriate
public education" (FAPE) means special education and related services that:
(A) are provided at public expense, under public supervision
and direction, and without charge;
(B) meet the standards of TEA;
(C) include preschool, elementary, or secondary school education;
and
(D) are provided in conformity with the student's individualized
education program (IEP).
(4) Consistent with 20 U. S. C. §1401(15), "local educational
agency" (LEA) means any public authority, institution, or agency having administrative
control and direction of a public elementary or secondary school, including
a public charter school that is established as an LEA under state law.
(d) Terms of MOU. The parties agree to the following terms:
(1) The responsibilities of LEAs and RFs related to the provision
of a FAPE to students with disabilities who reside in RFs are established
as follows.
(A) LEAs must provide or ensure the provision of a FAPE to
students with disabilities residing in RFs in accordance with IDEA, applicable
federal regulations, and state laws and rules.
(i) Except as provided in paragraph (2) of this subsection,
an LEA must provide or ensure the provision of a FAPE for a student with a
disability residing in an RF located in the geographical area served by that
LEA.
(ii) If an LEA places a student with a disability in an RF
for educational purposes, the placing LEA must provide or ensure the provision
of a FAPE to the student.
(B) Not later than the third day after the date a person 22
years of age or younger is placed in an RF, the RF must provide notification
in accordance with TEC, §29.012(a), as follows:
(i) if the person placed in the RF is three years of age or
older, the RF must notify the LEA in which the RF is located, unless the RF
is an open-enrollment charter school or the RF has been designated as an LEA
(e.g., TYC correctional facilities, Texas School for the Deaf, the University
of Texas Medical Branch); or
(ii) if the person placed in the RF is younger than three years
of age, the RF must notify a local early childhood intervention program in
the area in which the RF is located.
(2) Regulatory and planning functions of the parties are coordinated
as follows.
(A) The parties will require LEAs and RFs to:
(i) share, within a reasonable period of time and to the extent
permitted by applicable statutes and regulations, all appropriate records
and relevant information relating to a student with a disability. This subsection
does not authorize the LEA to modify requirements for admission and enrollment
into an LEA as set forth in TEC, Chapter 25. The records and information to
be shared may include, but are not limited to:
(I) birth certificate or other identifying document that proves
the student's age;
(II) medical history and medical records, including current
immunization records and a history of infectious disease (e.g., Hepatitis
B, tuberculosis), including a description of any behavioral characteristics
related to the transmission of such disease;
(III) social history;
(IV) vision and hearing screening and evaluation;
(V) evaluation reports, including psychological, educational,
related service, assistive technology and vocational evaluations, and behavioral
assessments;
(VI) treatment plan of care or service;
(VII) educational history (e.g., previous educational placement
information);
(VIII) any relevant court orders (e.g., orders related to placement
in an RF, guardianship or conservatorship, or court-ordered services);
(IX) information regarding a student's movement from an RF
to a subsequent residence, including but not limited to the date the student
left the RF and the location of the student's subsequent residence; and
(X) name and phone number of contact persons representing the
RF and the LEA; and
(ii) coordinate a student's individualized education program
(IEP) and treatment plan of care or service. Coordination between an LEA and
RF includes but is not limited to communication about responsibilities and
timelines related to the development and implementation of the IEP and treatment
plan, including permanency planning.
(B) TEA will require LEAs to provide:
(i) the name and phone number of the contact person representing
the RF to the surrogate parent, upon assignment of the surrogate parent;
(ii) the name and phone number of the surrogate parent, upon
assignment of the surrogate parent, to the contact person representing the
RF; and
(iii) designation and training of surrogate parents in accordance
with §89.1047 of this title (relating to Procedures for Surrogate and
Foster Parents).
(C) TYC and the HHS agencies will provide the following notifications
to TEA.
(i) TYC and the HHS agencies, other than PRS, will notify TEA
when an RF opens, closes, expands, or reduces its capacity to provide services,
if the notifying agency expects such action will have a significant effect
on one or more LEAs. The notice will be provided to TEA before the RF opens,
closes, expands, or reduces its capacity to provide services, or as soon thereafter
as the notifying agency becomes aware of the action. If an RF is closing,
the notifying TYC or HHS agency will request that the RF attempt to obtain
any consent necessary to release to TEA and an LEA, information about a student
with a disability residing in the RF, including the student's name, date of
birth, social security number, disability, and name of the LEA to which the
student will be moving. TEA will notify the affected LEA of the expected action
so the LEA can adjust its capacity to serve students with disabilities.
(ii) PRS will provide TEA with a copy of the notice required
by Texas Human Resources Code, §42.0461(a)(2). Additionally, PRS and
TEA will explore possible use of PRS' Child Care Licensing Automation Support
Services management system to generate information that may assist TEA in
its effort to notify LEAs when an RF opens, closes, expands, or reduces its
capacity to provide services.
(3) Criteria for determining when a public school will provide
educational services are established as follows.
(A) TEA will ensure that the local school district provides
a FAPE to all eligible students with disabilities, in the least restrictive
environment (LRE), to the maximum extent appropriate, to meet the individual
educational needs of the student as determined by a duly-constituted admission,
review, and dismissal (ARD) committee, and in accordance with §89.1001
of this title (relating to Scope and Applicability).
(B) The student's ARD committee must determine the appropriate
educational placement for the student, considering all available information
regarding the educational needs of the student, and including the non-educational
needs that may restrict the ability of the LEA to serve the student on a public
school campus or other instructional setting. These non-educational needs
could include the student's health and safety (e.g. substance abuse), and/or
the student's placement in a restrictive RF program (e.g., juvenile incarceration
or restrictive court-ordered placements). The ARD committee's determination
must be individualized based on student need and not made on a categorical
basis, such as the student's disability or residence in an RF. Further, ARD
committees must not determine educational placement on the basis of what is
most convenient to LEAs or RFs.
(4) When educational services will be provided at an RF, appropriate
educational space will be determined as follows.
(A) The ARD committee must determine whether space available
at the RF is appropriate for the provision of a FAPE. This determination must
be based on the individual student's needs and the RF's available space.
(B) An ARD committee must find alternative locations for providing
educational services if the ARD committee or RF determines that the RF has
no appropriate available space.
(5) Measures designed to ensure the safety of students and
teachers are established as follows.
(A) The parties will require RFs and LEAs to agree in writing
to the staffing levels that will be maintained by both the RF and the LEA
to ensure the safety of students and teachers while educational services are
provided at an RF.
Cont'd... |
