General Procedures and Instructions for Completing the Application for Approval of Funding for Residential Placement (SAS-A111-13) School Year 2012-2013

General Information

Purpose. Private residential placement for educational purposes enables a local education agency (LEA) or special education shared services arrangement (SSA) to provide an appropriate education for students whose needs are such that they require a 24-hour, structured environment available only at a residential facility. The decision concerning residential placement for a student is the responsibility of the admission, review, and dismissal (ARD) committee.

Residential Placement for Educational Purposes. Private residential placement for educational purposes means that residential placement is necessary in order for the student to make reasonable academic progress as opposed to residential placement for care and treatment purposes.

As indicated in Texas Administrative Code §89.61, Contracting for Residential Educational Placements for Students with Disabilities, requests for approval of state and federal funding for residentially placed students shall be negotiated on an individual student basis through a residential application submitted by the LEA through the Education Service Center (ESC) to the Texas Education Agency (TEA). A residential application may be submitted for educational purposes only.

For the list of approved nonpublic schools go to the nonpublic information website.

Related Activities/Issues.

Meeting to Discuss Options. Community Resource Coordination Groups (CRCGs) or a group of people knowledgeable about the student should determine whether noneducational support services are available that would enable the student to remain in or return to the community.

On-Site Visit to Facility. If the LEA intends to request approval for either an initial or continuing residential placement, LEA staff must conduct at least an annual, on-site visit to the facility to determine if the facility can meet the goals of the student's individualized education program (IEP) as well as health and safety standards. Records of these on-site visits must be retained in the LEA or SSA for program monitors to review when requested.

ARD Committee Meeting. The LEA's ARD committee should confirm, on the basis of all options discussed and considered, that residential placement is required and then address all the items/questions on the application. The student’s IEP must contain specific goals and objectives addressing the services for which funding is requested in the application.

§300.325 Private school placements by public agencies. (a) Developing IEPs (1) Before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency must initiate and conduct a meeting to develop an IEP for the child in accordance with §§300.320 and 300.324.

TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 1 of 8 (2) The agency must ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the agency must use other methods to ensure participation by the private school or facility, including individual or conference call.

Amendments to the Residential Application: If, within the fiscal year dates of the application and contract, a student’s ARD Committee meets and makes decisions that result in a change of placement and/or services for which funding has been requested, amendments must be made to the IEP, the application, and the contract to reflect those changes. All amended documents must be submitted to TEA within 45 school days of the date of the ARD meeting that resulted in the change. The application will fall within the fiscal year dates which are September 1 of any year to August 31 of the following year. When the duration of services date(s) in the IEP does not align with the fiscal year dates of the application and the contract, it will be necessary to submit amendments since an ARD meeting is certain to be held prior to the end of the contract. For students placed in residential facilities, districts may align IEP development with the fiscal year which will minimize the need for submission of amendments based upon conflicting dates between the IEP, application, and contract.

Residential Applications for Students for Whom the LEA will also Apply for High Cost Funds (HCF): An LEA must submit the residential application to the ESC by September 1 for any student for whom the LEA will also apply for HCF. If corrections or changes to the residential application are needed, the changes must be submitted to TEA within 15 business days from the date of the request. If this deadline is not met, the residential student’s HCF eligibility application will be denied and HCF will not be awarded.

Reintegration Plan. The LEA must develop a plan to return the student to the local special education program. This plan should include the provision of noneducational services. The CRCGs may be able to discuss available resources that will enable the LEA to reintegrate the student successfully. For monitoring purposes, the criteria for the student’s return to the LEA and a projected date of return must be in the current ARD documentation. Progress on the goals and objectives for return to the LEA should be benchmarked.

The reintegration plan must be maintained at the district level and be available for review if requested by TEA. Prior to a residentially placed student returning to the community, it is highly recommended that a CRCG meeting be held to discuss the student's needs for local resources and to review the most recent reintegration plan.

Contract with the Residential Facility. A copy of the contract between the fiscal agent LEA and the residential facility must be submitted with the application to the ESC, which will be reviewed for accuracy and then forwarded to the TEA. The contract must include all services required in the IEP and included on the Residential Placement Cost Breakdown form in the application. All parties should retain a copy of this contract. All contracts must address the requirements of Title 34 of the Code of Federal Regulations §80.36(i) (excerpt on page 5).

Agreement for Special Education Services. In instances where an LEA is providing the education program for the residential facility, a copy of this agreement is required in addition to a copy of the contract between the LEA and the facility. The agreement should include the LEA placing the student (sending LEA), the facility, and the LEA providing instruction (receiving LEA). A sample agreement form is included in this packet. The agreement which must be submitted to the ESC with the application will be reviewed for accuracy and then forwarded to the TEA. All parties should retain a copy of this agreement.

TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 2 of 8 Specific Instructions for Application and Approval Process

Calculating 25% Set Aside

Beginning with the 2012-2013 school year, the 25% set aside calculation will change from 25% of total SSA federal IDEA-B tentative base entitlement. The 25% set aside will be based on the tentative base entitlement of the member district placing the student in the residential facility.

Instructions

 Date of application is through August 31, unless otherwise indicated.

 Questions concerning the completion of any part of the application should be directed to the ESC.

 The LEA must submit to its regional ESC a separate application for each student (one original and one copy).

 For students with an emotional disturbance, the LEA is required to confer with the local mental health authority (MHA). The signature of the executive director of the MHA or his/her designee is required on the application.

 For students with an intellectual disability or autism, the LEA is required to confer with the local mental retardation authority (MRA). The signature of the superintendent of a state school, director of a state center, or executive director of a community center for the MRA or his/her designee is required on the application.

 For students with other disabling conditions, consultation with the MHA or MRA is not required.

 The superintendent of the fiscal agent LEA (or ESC executive director) for a special education shared services arrangement (SSA) or the superintendent of a single member LEA or his/her designee also must sign each application. However, a letter of authorization must be included with the application if someone other than the superintendent/ESC executive director signs the application.

 Approval is provided for an individual student’s application via a letter of approval from the TEA. This letter will be mailed to the superintendent of the LEA or to the fiscal agent superintendent/ESC executive director if the student is a resident of a member LEA of a special education SSA. The LEA also will receive a copy of the Residential Cost Breakdown form which will indicate the total amount of funds and the fund sources approved for residential placement. If IDEA-B Discretionary Residential funds are approved, the LEA must submit the Special Education Residential Grant application through the TEASE system. IDEA-B Discretionary funds are approved only if the total cost of the placement exceeds the required 25 percent set aside of the IDEA-B Formula tentative base entitlement for the single-member LEA or SSA (or state and/or local fund equivalent) and the local tax share amount.

TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 3 of 8  ARD committee decisions regarding residential placement are binding. If the application for funding is not approved, the residential placement costs must be paid from local funds.

 The approved application(s) will be effective: ° September 1 - if received by the ESC on or before September 1. ° As of the stamp-in date (i.e., the date the application was received by the ESC)–if received after September 1. ° Through August 31 or until the student leaves the residential facility, whichever is sooner.

TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 4 of 8 Title 34 of the Code of Federal Regulations §80.36(i) Excerpt

(i) Contract provisions. A grantee’s and (7) Notice of awarding agency requirements and subgrantee’s contracts must contain provisions in regulations pertaining to reporting. paragraph (i) of this section. Federal agencies are permitted to require changes, remedies, changed (8) Notice of awarding agency requirements and conditions, access and records retention, regulations pertaining to patent rights with respect suspension of work, and other clauses approved by to any discovery or invention which arises or is the Office of Federal Procurement Policy. developed in the course of or under such contract.

(1) Administrative, contractual, or legal remedies in (9) Awarding agency requirements and regulations instances where contractors violate or breach pertaining to copyrights and rights in data. contract terms, and provide for such sanctions and penalties as may be appropriate. (Contracts more (10) Access by the grantee, the subgrantee, the than the simplified acquisition threshold). Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized (2) Termination for cause and for convenience by representatives to any books, documents, papers, the grantee or subgrantee including the manner by and records of the contractor which are directly which it will be effected and the basis for pertinent to that specific contract for the purpose of settlement. (All contracts in excess of $10,000). making audit, examination, excerpts, and transcriptions. (3) Compliance with Executive Order 11246 of September 24, 1965, entitled “Equal Employment (11) Retention of all required records for three years Opportunity,” as amended by Executive Order after grantees or subgrantees make final payments 11375 of October 13, 1967, and as supplemented and all other pending matters are closed. in Department of Labor regulations (41 CFR chapter 60). (All construction contracts awarded in (12) Compliance with all applicable standards, excess of $10,000 by grantees and their contractors orders, or requirements issued under section 306 of or subgrantees). the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive (4) Compliance with the Copeland “Anti-Kickback” Order 11738, and Environmental Protection Agency Act (18 U.S.C. 874) as supplemented in regulations (40 CFR part 15). (Contracts, Department of Labor regulations (29 CFR Part 3). subcontracts, and subgrants of amounts in excess (All contracts and subgrants for construction or of $100,000). repair). (13) Mandatory standards and policies relating to (5) Compliance with the Davis-Bacon Act (40 energy efficiency which are contained in the state U.S.C. 276a to 276a-7) as supplemented by energy conservation plan issued in compliance with Department of Labor regulations (29 CFR Part 5). the Energy Policy and Conservation Act (Pub. L. (Construction contracts in excess of $2000 awarded 94-163, 89 Stat. 871). by grantees and subgrantees when required by Federal grant program legislation). (Approved by the Office of Management and Budget under control number 1880-0517) (6) Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 (Authority: 20 U.S.C. 3474; OMB Circular A-102) U.S.C. 327-330) as supplemented by Department [53 FR 8071 and 8087, Mar. 11, 1988, as amended at 53 of Labor regulations (29 CFR Part 5). (Construction FR 49143, Dec. 6, 1988; 60 FR 19639, 19643, Apr. 19, contracts awarded by grantees and subgrantees in 1995] excess of $2000, and in excess of $2500 for other contracts which involve the employment of mechanics or laborers).

TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 5 of 8 Chapter 89. Adaptations for Special Populations

Subchapter D. Special Education Services and Settings

Statutory Authority: The provisions of this Subchapter D issued under Texas Education Code, §§30.003(d) and (g), 30.004(b), and 42.151(e) and (g), unless otherwise noted §89.61. Contracting for Residential Educational with 34 Code of Federal Regulations, §§300.320- Placements for Students with Disabilities. 300.325, state statutes, and commissioner of education rules. (a) Residential placement. A school district may contract for residential placement of a student when (B) For each student, the services which the the student's admission, review, and dismissal school district is unable to provide and which the (ARD) committee determines that a residential facility will provide shall be listed in the student's placement is necessary in order for the student to IEP. receive a free appropriate public education (FAPE). (C) For each student, the ARD committee shall (1) A school district may contract for a establish, in writing, criteria and estimated timelines residential placement of a student only with either for the student's return to the school district. public or private residential facilities which maintain current and valid licensure by the Texas Department (D) The appropriateness of the facility for each of Aging and Disability Services, Texas Department student residentially placed shall be documented in of Family and Protective Services, or Department of the IEP. General screening by a regional education State Health Services for the particular disabling service center is not sufficient to meet the condition and age of the student. A school district requirements of this subsection. may contract for an out-of-state residential placement in accordance with the provisions of (E) The school district shall make an initial and subsection (c)(3) of this section. an annual on-site visit to verify that the residential facility can, and will, provide the services listed in (2) Subject to subsections (b) and (c) of this the student's IEP which the facility has agreed to section, the district may contract with a residential provide to the student. facility to provide some or all of the special education services listed in the contracted student's (F) For each student placed in a residential individualized education program (IEP). If the facility facility (both initial and continuing placements), the provides any educational services listed in the school district shall verify, during the initial student's IEP, the facility's education program must residential placement ARD committee meeting and be approved by the commissioner of education in each subsequent annual ARD committee meeting, accordance with subsection (c) of this section. that:

(3) A school district which intends to contract for (i) the facility meets minimum standards for residential placement of a student with a residential health and safety; facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential (ii) residential placement is needed and is application process described in subsection (b) of documented in the IEP; and this section. (iii) the educational program provided at the (4) The school district has the following residential facility is appropriate and the placement responsibilities when making a residential is the least restrictive environment for the student. placement. (G) The placement of more than one student, in (A) Before the school district places a student the same residential facility, may be considered in with a disability in, or refers a student to, a the same on-site visit to a facility; however, the IEP residential facility, the district shall initiate and of each student must be individually reviewed and a conduct a meeting of the student's ARD committee determination of appropriateness of placement and to develop an IEP for the student in accordance service must be made for each student. TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 6 of 8 (H) When a student who is residentially placed equivalent amount of state and/or local funds) for by a school district changes his residence to another related services and residential costs. If this is not Texas school district, and the student continues in sufficient to cover all costs of the residential the contracted placement, the school district which placement, the district through the residential negotiated the contract shall be responsible for the application process may receive additional IDEA-B residential contract for the remainder of the school discretionary funds to pay the balance of the year. residential contract placement(s) costs; and

(b) Application approval process. Requests for (C) funds generated by the formula for residential approval of state and federal funding for residentially costs described in subsection (b)(2)(B) of this placed students shall be negotiated on an individual section shall not exceed the daily rate recommended student basis through a residential application by the Texas Department of Family and Protective submitted by the school district to the TEA. Services for the specific level of care in which the student is placed. (1) A residential application may be submitted for educational purposes only. The residential (c) Approval of the education program for application shall not be approved if the application facilities which provide educational services. indicates that the: Residential facilities which provide educational services must have their educational programs (A) placement is due primarily to the student's approved for contracting purposes by the medical problems; commissioner of education.

(B) placement is due primarily to problems in the (1) If the education program of a residential student's home; facility which is not approved by the commissioner of education is being considered for a residential (C) district does not have a plan, including placement by a local school district, the school timelines and criteria, for the student's return to the district should notify the TEA in writing of its intent to local school program; place a student at the facility. The TEA shall begin approval procedures and conduct an on-site visit to the facility within 30 calendar days after the TEA has (D) district did not attempt to implement lesser been notified by the local school district. Approval of restrictive placements prior to residential placement the education program of a residential facility may be (except in emergency situations as documented by for one, two, or three years. the student's ARD committee); (2) The commissioner of education shall renew (E) placement is not cost effective when approvals and issue new approvals only for those compared with other alternative placements; and/or facilities which have contract students already placed or which have a pending request for (F) residential facility provides residential placement from a school district. This unfundable/unapprovable services. approval does not apply to residential facilities which only provide related services or residential facilities (2) The residential placement, if approved by the in which the local accredited school district where TEA, shall be funded as follows: the facility is located provides the educational program. (A) the education cost of residential contracts shall be funded with state funds on the same basis (3) School districts which contract for out-of-state as nonpublic day school contract costs according to residential placement shall do so in accordance with Texas Education Code, §42.151; the rules for in-state residential placement in this section, except that the facility must be approved by (B) related services and residential costs for the appropriate agency in the state in which the residential contract students shall be funded from a facility is located, rather than by the commissioner of combination of fund sources. After expending any education in Texas. other available funds, the district must expend its local tax share per average daily attendance and Source: The provisions of this §89.61 adopted to 25% of its Individuals with Disabilities Education Act, be effective September 1, 2000, 25 TexReg 4530; Part B, (IDEA-B) formula tentative entitlement (or an amended to be effective August 24, 2010, 35 TexReg 7212. TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 7 of 8 TEA | Division of Federal and State Education Policy General Procedures and Instructions Page 8 of 8