Statutory Authority: The provisions of this Subchapter AA issued under the Texas Education Code, §§29.001, 29.003, 29.005, 29.015, 29.017, 30.0015, 30.057, 37.0021, 37.004, and 42.003; and 34 Code of Federal Regulations, §300.507 and §300.600; unless otherwise noted.

Division 1. General Provisions

§89.1001. Scope and Applicability.

(a)  Special education services shall be provided to eligible students in accordance with all applicable federal law and regulations, state statutes, rules of the State Board of Education (SBOE) and commissioner of education, and the State Plan Under Part B of the Individuals with Disabilities Education Act (IDEA).

(b)  Education programs, under the direction and control of the Texas Youth Commission, Texas School for the Blind and Visually Impaired, Texas School for the Deaf, and schools within the Texas Department of Criminal Justice shall comply with state and federal law and regulations concerning the delivery of special education and related services to eligible students and shall be monitored by the Texas Education Agency in accordance with the requirements identified in subsection (a) of this section.

(c)  A school district having a residential facility that is licensed by appropriate state agencies and located within the district's boundaries must provide special education and related services to eligible students residing in the facility. If, after contacting the facility to offer services to eligible students with disabilities, the district determines that educational services are provided through a charter school, approved non-public school, or a facility operated private school, the district is not required to provide services. However, the district shall annually contact the facility to offer services to eligible students with disabilities.

Source: The provisions of this §89.1001 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

Division 2. Clarification of Provisions in Federal Regulations and State Law

§89.1011. Referral for Full and Individual Initial Evaluation.

Referral of students for a full and individual initial evaluation for possible special education services shall be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial, remedial, compensatory, and other services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student. The referral for a full and individual initial evaluation must be completed in accordance with Texas Education Code, §29.004, related to the 60 calendar day time line.

Source: The provisions of this §89.1011 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1015. Time Line for All Notices.

"Reasonable time" required for the written notice to parents under 34 Code of Federal Regulations (CFR), §300.503, is defined as at least five school days, unless the parents agree otherwise.

Source: The provisions of this §89.1015 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1035. Age Ranges for Student Eligibility.

(a)  Pursuant to state and federal law, services provided in accordance with this subchapter shall be available to all eligible students ages 3-21. Services will be made available to eligible students on their third birthday. Graduation with a regular high school diploma pursuant to §89.1070 (b)(1)-(2) of this title (relating to Graduation Requirements) terminates a student's eligibility to receive services in accordance with this subchapter. An eligible student receiving special education services who is 21 years of age on September 1 of a school year shall be eligible for services through the end of that school year or until graduation with a regular high school diploma pursuant to §89.1070 (b)(1)-(2) of this title, whichever comes first.

(b)  In accordance with the Texas Education Code (TEC), §§29.003, 30.002(a), and 30.081, a free, appropriate, public education shall be available from birth to students with visual or auditory impairments.

Source: The provisions of this §89.1035 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1040. Eligibility Criteria.

(a)  Special education services. To be eligible to receive special education services, a student must be a "child with a disability," as defined in 34 Code of Federal Regulations (CFR), §300.7(a), subject to the provisions of 34 CFR, §300.7(c), the Texas Education Code (TEC), §29.003, and this section. The provisions in this section specify criteria to be used in determining whether a student's condition meets one or more of the definitions in federal regulations or in state law.

(b)  Eligibility determination. The determination of whether a student is eligible for special education and related services is made by the student's admission, review, and dismissal (ARD) committee. Any evaluation or re-evaluation of a student shall be conducted in accordance with 34 CFR, §§300.530-300.536. The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility must include, but is not limited to, the following:

(1)  a licensed specialist in school psychology (LSSP), an educational diagnostician, or other appropriately certified or licensed practitioner with experience and training in the area of the disability; or

(2)  a licensed or certified professional for a specific eligibility category defined in subsection (c) of this section.

(c)  Eligibility definitions.

(1)  Autism. A student with autism is one who has been determined to meet the criteria for autism as stated in 34 CFR, §300.7(c)(1). Students with pervasive developmental disorders are included under this category. The team's written report of evaluation shall include specific recommendations for behavioral interventions and strategies.

(2)  Deaf-blindness. A student with deaf-blindness is one who has been determined to meet the criteria for deaf-blindness as stated in 34 CFR, §300.7(c)(2). In meeting the criteria stated in 34 CFR, §300.7(c)(2), a student with deaf-blindness is one who, based on the evaluations specified in subsections (c)(3) and (c)(12) of this section:

(A)  meets the eligibility criteria for auditory impairment specified in subsection (c)(3) of this section and visual impairment specified in subsection (c)(12) of this section;

(B)  meets the eligibility criteria for a student with a visual impairment and has a suspected hearing loss that cannot be demonstrated conclusively, but a speech/language therapist, a certified speech and language therapist, or a licensed speech language pathologist indicates there is no speech at an age when speech would normally be expected;

(C)  has documented hearing and visual losses that, if considered individually, may not meet the requirements for auditory impairment or visual impairment, but the combination of such losses adversely affects the student's educational performance; or

(D)  has a documented medical diagnosis of a progressive medical condition that will result in concomitant hearing and visual losses that, without special education intervention, will adversely affect the student's educational performance.

(3)  Auditory impairment. A student with an auditory impairment is one who has been determined to meet the criteria for deafness as stated in 34 CFR, §300.7(c)(3), or for hearing impairment as stated in 34 CFR, §300.7(c)(5). The evaluation data reviewed by the multidisciplinary team in connection with the determination of a student's eligibility based on an auditory impairment must include an otological examination performed by an otologist or by a licensed medical doctor, with documentation that an otologist is not reasonably available. An audiological evaluation by a licensed audiologist shall also be conducted. The evaluation data shall include a description of the implications of the hearing loss for the student's hearing in a variety of circumstances with or without recommended amplification.

(4)  Emotional disturbance. A student with an emotional disturbance is one who has been determined to meet the criteria for emotional disturbance as stated in 34 CFR, §300.7(c)(4). The written report of evaluation shall include specific recommendations for behavioral supports and interventions.

(5)  Mental retardation. A student with mental retardation is one who has been determined to meet the criteria for mental retardation as stated in 34 CFR, §300.7(c)(6). In meeting the criteria stated in 34 CFR, §300.7(c)(6), a student with mental retardation is one who has been determined to be functioning at two or more standard deviations below the mean on individually administered scales of verbal ability, and either performance or nonverbal ability, and who concurrently exhibits deficits in adaptive behavior.

(6)  Multiple disabilities.

(A)  A student with multiple disabilities is one who has been determined to meet the criteria for multiple disabilities as stated in 34 CFR, §300.7(c)(7). In meeting the criteria stated in 34 CFR, §300.7(c)(7), a student with multiple disabilities is one who has a combination of disabilities defined in this section and who meets all of the following conditions:

(i)  the student's disability is expected to continue indefinitely; and

(ii)  the disabilities severely impair performance in two or more of the following areas:

(I)  psychomotor skills;

(II)  self-care skills;

(III)  communication;

(IV)  social and emotional development; or

(V)  cognition.

(B)  Students who have more than one of the disabilities defined in this section but who do not meet the criteria in subparagraph (A) of this paragraph shall not be classified or reported as having multiple disabilities.

(7)  Orthopedic impairment. A student with an orthopedic impairment is one who has been determined to meet the criteria for orthopedic impairment as stated in 34 CFR, §300.7(c)(8). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on an orthopedic impairment must include a licensed physician.

(8)  Other health impairment. A student with other health impairment is one who has been determined to meet the criteria for other health impairment as stated in 34 CFR, §300.7(c)(9). Students with attention deficit disorder or attention deficit hyperactivity disorder are included under this category. The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on other health impairment must include a licensed physician.

(9)  Learning disability.

(A)  A student with a learning disability is one who has been determined by a multidisciplinary team to meet the criteria for specific learning disability as stated in 34 CFR, §300.7(c)(10), and in whom the team has determined whether a severe discrepancy between achievement and intellectual ability exists in accordance with the provisions in 34 CFR, §§300.540-300.543. A severe discrepancy exists when the student's assessed intellectual ability is above the mentally retarded range, but the student's assessed educational achievement in areas specified in 34 CFR, §300.541, is more than one standard deviation below the student's intellectual ability.

(B)  If the multidisciplinary team cannot establish the existence of a severe discrepancy in accordance with subparagraph (A) of this paragraph because of the lack of appropriate evaluation instruments, or if the student does not meet the criteria in subparagraph (A) of this paragraph but the team believes a severe discrepancy exists, the team must document in its written report the areas identified under subparagraph (A) of this paragraph and the basis for determining that the student has a severe discrepancy. The report shall include a statement of the degree of the discrepancy between intellectual ability and achievement.

(10)  Speech impairment. A student with a speech impairment is one who has been determined to meet the criteria for speech or language impairment as stated in 34 CFR, §300.7(c)(11). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a speech impairment must include a certified speech and hearing therapist, a certified speech and language therapist, or a licensed speech/language pathologist.

(11)  Traumatic brain injury. A student with a traumatic brain injury is one who has been determined to meet the criteria for traumatic brain injury as stated in 34 CFR, §300.7(c)(12). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a traumatic brain injury must include a licensed physician, in addition to the licensed or certified practitioners specified in subsection (b)(1) of this section.

(12)  Visual impairment.

(A)  A student with a visual impairment is one who has been determined to meet the criteria for visual impairment as stated in 34 CFR, §300.7(c)(13). The visual loss should be stated in exact measures of visual field and corrected visual acuity at a distance and at close range in each eye in a report by a licensed ophthalmologist or optometrist. The report should also include prognosis whenever possible. If exact measures cannot be obtained, the eye specialist must so state and provide best estimates. In meeting the criteria stated in 34 CFR, §300.7(c)(13), a student with a visual impairment is one who:

(i)  has been determined by a licensed ophthalmologist or optometrist:

(I)  to have no vision or to have a serious visual loss after correction; or

(II)  to have a progressive medical condition that will result in no vision or a serious visual loss after correction.

(ii)  has been determined by the following evaluations to have a need for special services:

(I)  a functional vision evaluation by a professional certified in the education of students with visual impairments or a certified orientation and mobility instructor. The evaluation must include the performance of tasks in a variety of environments requiring the use of both near and distance vision and recommendations concerning the need for a clinical low vision evaluation and an orientation and mobility evaluation; and

(II)  a learning media assessment by a professional certified in the education of students with visual impairments. The learning media assessment must include recommendations concerning which specific visual, tactual, and/or auditory learning media are appropriate for the student and whether or not there is a need for ongoing evaluation in this area.

(B)  A student with a visual impairment is functionally blind if, based on the preceding evaluations, the student will use tactual media (which includes Braille) as a primary tool for learning to be able to communicate in both reading and writing at the same level of proficiency as other students of comparable ability.

(13)  Noncategorical. A student between the ages of 3-5 who is evaluated as having mental retardation, emotional disturbance, a specific learning disability, or autism may be described as noncategorical early childhood.

Source: The provisions of this §89.1040 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1045. Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings.

(a)  A district shall invite the parents and adult student to participate as members of the admission, review, and dismissal (ARD) committee by providing written notice in accordance with 34 Code of Federal Regulations (CFR), §§300.345, 300.503, and 300.505, and Part 300, Appendix A.

(b)  A parent may request an ARD committee meeting at any mutually agreeable time to address specific concerns about his or her child's special education services. The school district must respond to the parent's request either by holding the requested meeting or by requesting assistance through the Texas Education Agency's mediation process. The district should inform parents of the functions of the ARD committee and the circumstances or types of problems for which requesting an ARD committee meeting would be appropriate.

Source: The provisions of this §89.1045 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1047. Procedures for Surrogate and Foster Parents.

(a)  An individual assigned to act as a surrogate parent for a student with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.515, relating to surrogate parents, must comply with the requirements specified in Texas Education Code (TEC), §29.001(10).

(1)  Pursuant to TEC, §29.001(10)(A), an individual assigned to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

(A)  the identification of a student with a disability;

(B)  the collection of evaluation and re-evaluation data relating to a student with a disability;

(C)  the admission, review, and dismissal (ARD) committee process;

(D)  the development of an individualized education program (IEP) and, for a student who is at least 16 years of age, an individual transition plan (ITP);

(E)  the determination of least restrictive environment;

(F)  the implementation of an IEP;

(G)  the procedural rights and safeguards available under 34 CFR, §§300.403, 300.500-300.529, 300.560-300.577, and 300.660-300.662, relating to the issues described in 34 CFR, §300.504(b); and

(H)  the sources that the surrogate parent may contact to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities.

(2)  The training program described in subsection (a)(1) of this section must be provided in the native language or other mode of communication used by the individual who is to serve as a surrogate parent.

(3)  The individual assigned to act as a surrogate parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the effective date of this rule or the date of initial assignment as a surrogate parent, whichever comes later. Once an individual has completed a training program conducted or provided by or through the Texas Department of Protective and Regulatory Services (PRS), a school district, an education service center, or any entity that receives federal funds to provide Individuals with Disabilities Education Act (IDEA) training to parents, the individual shall not be required by any school district to complete additional training in order to continue serving as the student's surrogate parent or to serve as the surrogate parent for other students with disabilities. School districts may provide ongoing or additional training to surrogate parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as a surrogate parent on the grounds that the individual has not been trained.

(4)  A school district shall provide, or arrange for the provision of, the training program described in subsection (a)(1) of this section, within 90 calendar days after the effective date of this rule for individuals serving as surrogate parents as of the effective date of this rule. Thereafter, a school district should provide or arrange for the provision of the training program described in subsection (a)(1) prior to assigning an individual to act as a surrogate parent but no later than 90 calendar days after assignment.

(b)  A foster parent may act as a parent of a child with a disability, in accordance with 34 CFR, §300.20, relating to the definition of parent, if he/she complies with the requirements of TEC, §29.015(b), relating to foster parents, including the completion of the training program described in subsection(a)(1) of this section.

(1)  The foster parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the effective date of this rule or the date of initial assignment as the parent, whichever comes later. Once a foster parent has completed a training program conducted or provided by the PRS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents, the foster parent shall not be required by any school district to complete additional training in order to continue serving as his/her child's surrogate parent or parent or to serve as the surrogate parent or parent for other students with disabilities. School districts may provide ongoing or additional training to foster parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as the parent on the grounds that the individual has not been trained.

(2)  A school district shall provide, or arrange for the provision of, the training program described in subsection (a)(1) of this section, within 90 calendar days after the effective date of this rule for foster parents who are serving as parents as of the effective date of this rule. Thereafter, a school district should provide or arrange for the provision of the training program described in subsection (a)(1) prior to assigning a foster parent to act as a parent but no later than 90 calendar days after assignment.

(c)  Each school district or shared services arrangement shall develop and implement procedures for conducting an analysis of whether a foster parent or potential surrogate parent has an interest that conflicts with the interests of his/her child. A foster parent in a home which is verified by the PRS or a child-placing agency shall not be deemed to have a financial conflict of interest by virtue of serving as the foster parent in that home. These homes include, but are not limited to, basic, habilitative, primary medical, or therapeutic foster or foster group homes. In addition, issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to PRS.

(d)  If a school district denies a foster parent the right to serve as a surrogate parent or parent, the school district must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made. The written notice shall:

(1)  specify the reason(s) the foster parent is being denied the right to serve as the surrogate parent or parent (the notice must specifically explain the interests of the foster parent that conflict with the interests of his/her child); and

(2)  inform the foster parent of his/her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.660–300.662, relating to complaint procedures.

Source: The provisions of this §89.1047 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1049. Parental Rights Regarding Adult Students.

(a)  In accordance with 34 Code of Federal Regulations (CFR), §300.347(c) and §300.517, and Texas Education Code (TEC), §29.017, beginning at least one year before a student reaches 18 years of age, the student's individualized education program (IEP) must include a statement that the student has been informed that, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship, all rights granted to the parent under the Individuals with Disabilities Education Act (IDEA), Part B, other than the right to receive any notice required under IDEA, Part B, will transfer to the student upon reaching age 18. After the student reaches the age of 18, except as provided by subsection (b) of this section, the school district shall provide any notice required under IDEA, Part B, to both the adult student and the parent.

(b)  In accordance with 34 CFR, §300.517(a)(2), and TEC, §29.017(a), all rights accorded to a parent under IDEA, Part B, including the right to receive any notice required by IDEA, Part B, will transfer to an 18-year-old student who is incarcerated in an adult or juvenile, state or local correctional institution, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship.

(c)  In accordance with 34 CFR, §300.517(a)(3), a school district must notify in writing the adult student and parent of the transfer of parental rights, as described in subsections (a) and (b) of this section, at the time the student reaches the age of 18. This notification is separate and distinct from the requirement that the student's IEP include a statement relating to the transfer of parental rights beginning at least one year before the student reaches the age of 18. This notification is not required to contain the elements of notice referenced in 34 CFR, §300.503, but must include a statement that parental rights have transferred to the adult student and provide contact information for the parties to use in obtaining additional information.

(d)  A notice under IDEA, Part B, that is required to be given to an adult student and parent does not create a right for the parent to consent to or participate in the proposal or refusal to which the notice relates. For example, a notice of an admission, review, and dismissal (ARD) committee meeting does not constitute invitation to, or create a right for, the parent to attend the meeting. However, in accordance with 34 CFR, §300.344(a)(6), the adult student or the school district may invite individuals who have knowledge or special expertise regarding the student, including the parent.

(e)  Nothing in this section prohibits a valid power of attorney from being executed by an individual who holds rights under IDEA, Part B.

Source: The provisions of this §89.1049 adopted to be April 18, 2002, 27 TexReg 3061.

§89.1050. The Admission, Review, and Dismissal (ARD) Committee.

(a)  Each school district shall establish an admission, review, and dismissal (ARD) committee for each eligible student with a disability and for each student for whom a full and individual initial evaluation is conducted pursuant to §89.1011 of this title (relating to Referral for Full and Individual Initial Evaluation). The ARD committee shall be the individualized education program (IEP) team defined in federal law and regulations, including, specifically, 34 Code of Federal Regulations (CFR), §300.344. The school district shall be responsible for all of the functions for which the IEP team is responsible under federal law and regulations and for which the ARD committee is responsible under state law, including, specifically, the following:

(1)  34 CFR, §§300.340-300.349, and Texas Education Code (TEC), §29.005 (Individualized Education Program);

(2)  34 CFR, §§300.400-300.402 (relating to placement of eligible students in private schools by a school district);

(3)  34 CFR, §§300.452, 300.455, and 300.456 (relating to the development and implementation of service plans for eligible students in private school who have been designated to receive special education and related services);

(4)  34 CFR, §§300.520, 300.522, and 300.523, and TEC, §37.004 (Placement of Students with Disabilities);

(5)  34 CFR, §§300.532-300.536 (relating to evaluations, re-evaluations, and determination of eligibility);

(6)  34 CFR, §§300.550-300.553 (relating to least restrictive environment);

(7)  TEC, §28.006 (Reading Diagnosis);

(8)  TEC, §28.0211 (Satisfactory Performance on Assessment Instruments Required; Accelerated Instruction);

(9)  TEC, Chapter 29, Subchapter I (Programs for Students Who Are Deaf or Hard of Hearing);

(10)  TEC, §30.002 (Education of Children with Visual Impairments);

(11)  TEC, §30.003 (Support of Students Enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf);

(12)  TEC, §33.081 (Extracurricular Activities);

(13)  TEC, Chapter 39, Subchapter B (Assessment of Academic Skills); and

(14)  TEC, §42.151 (Special Education).

(b)  For a child from birth through two years of age with visual and/or auditory impairments, an individualized family services plan (IFSP) meeting must be held in place of an ARD committee meeting in accordance with 34 CFR, §§303.340-303.346, and the memorandum of understanding between the Texas Education Agency (TEA) and Texas Interagency Council on Early Childhood Intervention. For students three years of age and older, school districts must develop an IEP.

(c)  At least one general education teacher of the student (if the student is, or may be, participating in the general education environment) shall participate as a member of the ARD committee. The special education teacher or special education provider that participates in the ARD committee meeting in accordance with 34 CFR, §300.344(a)(3), must be certified in the child's suspected areas of disability. When a specific certification is not required to serve certain disability categories, then the special education teacher or special education provider must be qualified to provide the educational services that the child may need. Districts should refer to §89.1131 of this title (relating to Qualifications of Special Education, Related Service, and Paraprofessional Personnel) to ensure that appropriate teachers and/or service providers are present and participate at each ARD committee meeting.

(d)  The ARD committee shall make its decisions regarding students referred for a full and individual initial evaluation within 30 calendar days from the date of the completion of the written full and individual initial evaluation report. If the 30th day falls during the summer and school is not in session, the ARD committee shall have until the first day of classes in the fall to finalize decisions concerning the initial eligibility determination, the IEP, and placement, unless the full and individual initial evaluation indicates that the student will need extended school year (ESY) services during that summer.

(e)  The written report of the ARD committee shall document the decisions of the committee with respect to issues discussed at the meeting. The report shall include the date, names, positions, and signatures of the members participating in each meeting in accordance with 34 CFR, §§300.344, 300.345, 300.348, and 300.349. The report shall also indicate each member's agreement or disagreement with the committee's decisions. In the event TEC, §29.005(d) (1), applies, the district shall provide a written or audiotaped copy of the student's IEP, as defined in 34 CFR, §300.346 and §300.347. In the event TEC, §29.005(d)(2), applies, the district shall make a good faith effort to provide a written or audiotaped copy of the student's IEP, as defined in 34 CFR, §300.346 and §300.347.

(f)  For a student who is new to a school district:

(1)  when a student transfers within the state, the ARD committee may, but is not required to, meet when the student enrolls and a copy of the student's IEP is available, the parent(s) indicate in writing that they are satisfied with the current IEP, and the district determines that the current IEP is appropriate and can be implemented as written; or

(2)  if the conditions of subsection (f)(1) of this section are not met, then the ARD committee must meet when the student enrolls and the parents verify that the student was receiving special education services in the previous school district, or the previous school district verifies in writing or by telephone that the student was receiving special education services. At this meeting, the ARD committee must do one of the following:

(A)  the ARD committee may determine that it has appropriate evaluation data and other information to develop and begin implementation of a complete IEP for the student; or

(B)  the ARD committee may determine that valid evaluation data and other information from the previous school district are insufficient or unavailable to develop a complete IEP. In this event, the ARD committee may authorize the provision of temporary special education services pending receipt of valid evaluation data from the previous school district or the collection of new evaluation data by the current school district. In this situation, a second ARD committee meeting must be held within 30 school days from the date of the first ARD committee meeting to finalize or develop an IEP based on current information.

(3)  In accordance with TEC, §25.002, the school district in which the student was previously enrolled shall furnish the new school district with a copy of the student's records, including the child's special education records, not later than the 30th calendar day after the student was enrolled in the new school district. The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C., §1232g, does not require the student's current and previous school districts to obtain parental consent before requesting or sending the student's special education records if the disclosure is conducted in accordance with 34 CFR, §99.31(a)(2) and §99.34.

(g)  All disciplinary actions regarding students with disabilities shall be determined in accordance with 34 CFR, §§300.121 and 300.519-300.529 (relating to disciplinary actions and procedures), the TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management), and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out).

(h)  All members of the ARD committee shall have the opportunity to participate in a collaborative manner in developing the IEP. A decision of the committee concerning required elements of the IEP shall be made by mutual agreement of the required members if possible. The committee may agree to an annual IEP or an IEP of shorter duration.

(1)  When mutual agreement about all required elements of the IEP is not achieved, the party (the parents or adult student) who disagrees shall be offered a single opportunity to have the committee recess for a period of time not to exceed ten school days. This recess is not required when the student's presence on the campus presents a danger of physical harm to the student or others or when the student has committed an expellable offense or an offense which may lead to a placement in an alternative education program (AEP). The requirements of this subsection (h) do not prohibit the members of the ARD committee from recessing an ARD committee meeting for reasons other than the failure of the parents and the school district from reaching mutual agreement about all required elements of an IEP.

(2)  During the recess the committee members shall consider alternatives, gather additional data, prepare further documentation, and/or obtain additional resource persons which may assist in enabling the ARD committee to reach mutual agreement.

(3)  The date, time, and place for continuing the ARD committee meeting shall be determined by mutual agreement prior to the recess.

(4)  If a ten-day recess is implemented as provided in paragraph (1) of this subsection and the ARD committee still cannot reach mutual agreement, the district shall implement the IEP which it has determined to be appropriate for the student.

(5)  When mutual agreement is not reached, a written statement of the basis for the disagreement shall be included in the IEP. The members who disagree shall be offered the opportunity to write their own statements.

(6)  When a district implements an IEP with which the parents disagree or the adult student disagrees, the district shall provide prior written notice to the parents or adult student as required in 34 CFR, §300.503.

(7)  Parents shall have the right to file a complaint, request mediation, or request a due process hearing at any point when they disagree with decisions of the ARD committee.

Source: The provisions of this §89.1050 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061.

§89.1052. Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP).

(a)  This section will expire on September 1, 2003.

(b)  In a county with a JJAEP, a local school district shall invite the administrator of the JJAEP or the administrator's designee to an admission, review, and dismissal (ARD) committee meeting convened to discuss a student's expulsion under the provisions listed in Texas Education Code (TEC), §37.004(e), relating to offenses for which a school district may expel a student. The reasonable notice of the ARD committee meeting must be provided consistent with 34 CFR, §300.345 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices), and a copy of the student's current individualized education program (IEP) must be provided to the JJAEP administrator or designee with the notice. If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's placement in the JJAEP and implementation of the student's current IEP in the JJAEP.

(c)  In accordance with TEC, §37.004(f), when the JJAEP administrator or designee provides written notice of specific concerns to the school district from which a student was expelled under one of the provisions listed in TEC, §37.004(e), relating to offenses for which a school district may expel a student, an ARD committee meeting must be convened to reconsider placement of the student in the JJAEP. The reasonable notice of the ARD committee meeting must be provided consistent with 34 CFR, §300.345 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices). If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's continued placement in the JJAEP.

Source: The provisions of the §89.1052 adopted to be effective August 1, 2002, 27 TexReg 3061.

§89.1053. Procedures for Use of Restraint and Time-Out.

(a)  Requirement to implement. In addition to the requirements of 34 Code of Federal Regulations (CFR), §300.346(a)(2)(i) and (c), school districts and charter schools must implement the provisions of this section regarding the use of restraint and time-out. In accordance with the provisions of Texas Education Code (TEC), §37.0021 (Use of Confinement, Restraint, Seclusion, and Time-Out), it is the policy of the state to treat all students with dignity and respect.

(b)  Definitions.

(1)  Emergency means a situation in which a student's behavior poses a threat of:

(A)  imminent, serious physical harm to the student or others; or

(B)  imminent, serious property destruction.

(2)  Restraint means the use of physical force or a mechanical device to restrict the free movement of all or a portion of the student's body.

(3)  Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A)  that is not locked; and

(B)  from which the student is not physically prevented from leaving.

(c)  Use of restraint. A school employee, volunteer, or independent contractor may use restraint only in an emergency as defined in subsection (b) of this section and with the following limitations.

(1)  Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.

(2)  Restraint shall be discontinued at the point at which the emergency no longer exists.

(3)  Restraint shall be implemented in such a way as to protect the health and safety of the student and others.

(4)  Restraint shall not deprive the student of basic human necessities.

(d)  Training on use of restraint. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1)  Not later than April 1, 2003, a core team of personnel on each campus must be trained in the use of restraint, and the team must include a campus administrator or designee and any general or special education personnel likely to use restraint.

(2)  After April 1, 2003, personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint.

(3)  Training on use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.

(4)  All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

(e)  Documentation and notification on use of restraint. In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements.

(1)  On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.

(2)  On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.

(3)  Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.

(4)  Written documentation regarding the use of restraint must be placed in the student's special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student's behavior on the student's learning and/or the creation or revision of a behavioral intervention plan (BIP).

(5)  Written notification to the parent(s) and documentation to the student's special education eligibility folder shall include the following:

(A)  name of the student;

(B)  name of the staff member(s) administering the restraint;

(C)  date of the restraint and the time the restraint began and ended;

(D)  location of the restraint;

(E)  nature of the restraint;

(F)  a description of the activity in which the student was engaged immediately preceding the use of restraint;

(G)  the behavior that prompted the restraint;

(H)  the efforts made to de-escalate the situation and alternatives to restraint that were attempted; and

(I)  information documenting parent contact and notification.

(f)  Clarification regarding restraint. For the purposes of subsections (c)-(e) of this section, restraint does not include the use of:

(1)  physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;

(2)  limited physical contact with a student to promote safety (e.g., holding a student's hand), prevent a potentially harmful action (e.g., running into the street), teach a skill, or provide comfort;

(3)  limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors; or

(4)  seat belts and other safety equipment used to secure students during transportation.

(g)  Use of time-out. A school employee, volunteer, or independent contractor may use time-out in accordance with subsection (b)(3) of this section with the following limitations.

(1)  Physical force or threat of physical force shall not be used to place a student in time-out.

(2)  Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's individualized education program (IEP) and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior.

(3)  Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(h)  Training on use of time-out. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1)  Not later than April 1, 2003, general or special education personnel who implement time-out based on requirements established in a student's IEP and/or BIP must be trained in the use of time-out.

(2)  After April 1, 2003, newly-identified personnel called upon to implement time-out based on requirements established in a student's IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.

(3)  Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(4)  All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out.

(i)  Documentation on use of time-out. Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP. The admission, review, and dismissal (ARD) committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

(j)  Student safety. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

(k)  Data collection requirement. Beginning with the 2003-2004 school year, with the exception of actions covered by subsection (f) of this section, cumulative data regarding the use of restraint must be reported through the Public Education Information Management System (PEIMS).

Source: The provisions of the §89.1053 adopted to be effective August 1, 2002, 27 TexReg 3061.

§89.1055. Content of the Individualized Education Program (IEP).

(a)  The individualized education program (IEP) developed by the admission, review, and dismissal (ARD) committee for each student with a disability shall comply with the requirements of 34 Code of Federal Regulations (CFR), §300.346 and §300.347, and Part 300, Appendix A.

(b)  The IEP must include a statement of any individual allowable accommodations in the administration of assessment instruments developed in accordance with Texas Education Code (TEC), §39.023(a)-(c), or district-wide assessments of student achievement that are needed in order for the student to participate in the assessment. If the ARD committee determines that the student will not participate in a particular state- or district-wide assessment of student achievement (or part of an assessment), the IEP must include a statement of:

(1)  why that assessment is not appropriate for the child; and

(2)  how the child will be assessed using a locally developed alternate assessment.

(c)  If the ARD committee determines that the student is in need of extended school year (ESY) services, as described in §89.1065 of this title (relating to Extended School Year Services (ESY Services)), then the IEP must also include goals and objectives for ESY services from the student's current IEP.

(d)  For students with visual impairments, from birth through 21 years of age, the IEP or individualized family services plan (IFSP) shall also meet the requirements of TEC, §30.002(e).

(e)  For students with autism/pervasive developmental disorders, information about the following shall be considered and, when needed, addressed in the IEP:

(1)  extended educational programming;

(2)  daily schedules reflecting minimal unstructured time;

(3)  in-home training or viable alternatives;

(4)  prioritized behavioral objectives;

(5)  prevocational and vocational needs of students 12 years of age or older;

(6)  parent training; and

(7)  suitable staff-to-students ratio.

(f)  If the ARD committee determines that services are not needed in one or more of the areas specified in subsection (e)(1)-(7) of this section, the IEP must include a statement to that effect and the basis upon which the determination was made.

Source: The provisions of this §89.1055 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1056. Transfer of Assistive Technology Devices.

(a)  Unless otherwise specifically defined in this section, the terms used in this section shall have the meanings ascribed to such terms in Texas Education Code (TEC), §30.0015, (Transfer of Assistive Technology Devices).

(b)  A transfer of an assistive technology device (ATD) pursuant to TEC, §30.0015, shall be in accordance with a transfer agreement which incorporates the standards described in TEC, §30.0015(c), and which includes, specifically, the following.

(1)  The transferor and transferee must represent and agree that the terms of the transfer are based on the fair market value of the ATD, determined in accordance with generally accepted accounting principles.

(2)  The informed consent of the parent of the student with a disability for whom the ATD is being transferred must be obtained before the transfer of an ATD pursuant to TEC, §30.0015. The procedures employed by a school district in obtaining such informed consent shall be consistent with the procedures employed by the district to obtain parental consent under 34 Code of Federal Regulations (CFR), §300.505. If the student has the legal capacity to enter into a contract, the informed consent may be obtained from the student. Consistent with 34 CFR, §300.505(c), informed parental or adult student consent need not be obtained if the school district can demonstrate that it has taken reasonable measures to obtain that consent, and the student's parent or the adult student has failed to respond. To meet the reasonable measures requirement, the school district must use procedures consistent with those described in 34 CFR, §300.345(d).

(3)  If the transfer is a sale, then the sale of the ATD shall be evidenced by a "Uniform Transfer Agreement" (UTA) which includes the following:

(A)  the names of the transferor and the transferee (which may be any individual or entity identified in TEC, §30.0015(b));

(B)  the date of the transfer;

(C)  a description of the ATD being transferred;

(D)  the terms of the transfer (including the transfer of warranties, to the extent applicable); and

(E)  the signatures of authorized representatives of both the transferor and the transferee.

(c)  The Texas Education Agency shall annually disseminate to school districts the standards for a school district's transfer of an ATD pursuant to TEC, §30.0015.

(d)  Nothing in this section or in TEC, §30.0015, shall:

(1)  alter any existing obligation under federal or state law to provide ATDs to students with disabilities;

(2)  require a school district to transfer an ATD to any person or entity;

(3)  limit a school district's right to sell, lease, loan, or otherwise convey or dispose of property as authorized by federal or state laws, rules, or regulations; or

(4)  authorize any transfer of an ATD that is inconsistent with any restriction on transferability imposed by the manufacturer or developer of the ATD or applicable federal or state laws, rules, or regulations.

Source: The provisions of this §89.1056 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1060. Definitions of Certain Related Services.

In addition to the specific related services defined in 34 Code of Federal Regulations (CFR), §300.24, related services include interpreting services for students who are deaf. Interpreting services include interpreting/transliterating receptively and expressively for persons who are deaf or hard of hearing.

Source: The provisions of this §89.1060 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1065. Extended School Year Services (ESY Services).

Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.

(1)  The need for ESY services must be determined on an individual student basis by the admission, review, and dismissal (ARD) committee in accordance with 34 Code of Federal Regulations (CFR), §300.309, and the provisions of this section. In determining the need for and in providing ESY services, a school district may not:

(A)  limit ESY services to particular categories of disability; or

(B)  unilaterally limit the type, amount, or duration of ESY services.

(2)  The need for ESY services must be documented from formal and/or informal evaluations provided by the district or the parents. The documentation shall demonstrate that in one or more critical areas addressed in the current individualized education program (IEP) objectives, the student has exhibited, or reasonably may be expected to exhibit, severe or substantial regression that cannot be recouped within a reasonable period of time. Severe or substantial regression means that the student has been, or will be, unable to maintain one or more acquired critical skills in the absence of ESY services.

(3)  The reasonable period of time for recoupment of acquired critical skills shall be determined on the basis of needs identified in each student's IEP. If the loss of acquired critical skills would be particularly severe or substantial, or if such loss results, or reasonably may be expected to result, in immediate physical harm to the student or to others, ESY services may be justified without consideration of the period of time for recoupment of such skills. In any case, the period of time for recoupment shall not exceed eight weeks.

(4)  A skill is critical when the loss of that skill results, or is reasonably expected to result, in any of the following occurrences during the first eight weeks of the next regular school year:

(A)  placement in a more restrictive instructional arrangement;

(B)  significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum;

(C)  significant loss of self-sufficiency in self-help skill areas as evidenced by an increase in the number of direct service staff and/or amount of time required to provide special education or related services;

(D)  loss of access to community-based independent living skills instruction or an independent living environment provided by noneducational sources as a result of regression in skills; or

(E)  loss of access to on-the-job training or productive employment as a result of regression in skills.

(5)  If the district does not propose ESY services for discussion at the annual review of a student's IEP, the parent may request that the ARD committee discuss ESY services pursuant to 34 CFR, §300.344.

(6)  If a student for whom ESY services were considered and rejected loses critical skills because of the decision not to provide ESY services, and if those skills are not regained after the reasonable period of time for recoupment, the ARD committee shall reconsider the current IEP if the student's loss of critical skills interferes with the implementation of the student's IEP.

(7)  For students enrolling in a district during the school year, information obtained from the prior school district as well as information collected during the current year may be used to determine the need for ESY services.

(8)  The provision of ESY services is limited to the educational needs of the student and shall not supplant or limit the responsibility of other public agencies to continue to provide care and treatment services pursuant to policy or practice, even when those services are similar to, or the same as, the services addressed in the student's IEP. No student shall be denied ESY services because the student receives care and treatment services under the auspices of other agencies.

(9)  Districts are not eligible for reimbursement for ESY services provided to students for reasons other than those set forth in this section.

Source: The provisions of this §89.1065 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1070. Graduation Requirements.

(a)  Graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's eligibility for special education services under this subchapter and Part B of the Individuals with Disabilities Education Act (IDEA), 20 United States Code, §§1400 et seq. In addition, as provided in Texas Education Code (TEC), §42.003(a), graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's entitlement to the benefits of the Foundation School Program.

(b)  A student receiving special education services may graduate and be awarded a high school diploma if:

(1)  the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation applicable to students in general education, including satisfactory performance on the exit level assessment instrument; or

(2)  the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation applicable to students in general education and has been exempted from the exit-level assessment instrument under TEC, §39.027(a)(2)(B).

(c)  A student receiving special education services may also graduate and receive a regular high school diploma when the student's admission, review, and dismissal (ARD) committee has determined that the student has successfully completed:

(1)  the student's individualized education program (IEP) and met one of the following conditions:

(A)  full-time employment, based on the student's abilities and local employment opportunities, in addition to sufficient self-help skills to enable the student to maintain the employment without direct and ongoing educational support of the local school district;

(B)  demonstrated mastery of specific employability skills and self-help skills which do not require direct ongoing educational support of the local school district; or

(C)  access to services which are not within the legal responsibility of public education, or employment or educational options for which the student has been prepared by the academic program;

(2)  the state's or district's (whichever is greater) minimum credit requirements for students without disabilities; and

(3)  the state's or district's minimum curriculum requirements to the extent possible with modifications/substitutions only when it is determined necessary by the ARD committee for the student to receive an appropriate education.

(d)  A student receiving special education services may also graduate and receive a regular high school diploma upon the ARD committee determining that the student no longer meets age eligibility requirements and has completed the requirements specified in the IEP.

(e)  When considering a student's graduation under subsection (c) of this section, the student shall be evaluated prior to graduation as required by 34 CFR, §300.534(c), and the ARD committee shall consider the evaluation, the views of the parent and/or student as appropriate, and, when appropriate, seek in writing and consider written recommendations from adult service agencies.

(f)  Students who participate in graduation ceremonies but who are not graduating under subsection (c) of this section and who will remain in school to complete their education do not have to be evaluated in accordance with subsection (e) of this section.

(g)  Employability and self-help skills referenced under subsection (c) of this section are those skills directly related to the preparation of students for employment, including general skills necessary to obtain or retain employment.

(h)  Students with disabilities who are eligible to take the exit level assessment instrument but have not performed satisfactorily are eligible for instruction in accordance with the TEC, §39.024.

(i)  For students who receive a diploma according to subsection (c) of this section, the ARD committee shall determine needed educational services upon the request of the student or parent to resume services, as long as the student meets the age eligibility requirements.

Source: The provisions of this §89.1070 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061.

§89.1075. General Program Requirements and Local District Procedures.

(a)  Each school district shall maintain an eligibility folder for each student receiving special education services, in addition to the student's cumulative record. The eligibility folder must include, but need not be limited to: copies of referral data; documentation of notices and consents; evaluation reports and supporting data; admission, review, and dismissal (ARD) committee reports; and the student's individualized education programs (IEPs).

(b)  For school districts providing special education services to students with visual impairments, there shall be written procedures as required in the Texas Education Code (TEC), §30.002(c)(10).

(c)  Each school district shall have procedures to ensure that each teacher involved in a student's instruction has the opportunity to provide input and request assistance regarding the implementation of the student's IEP. These procedures must include a method for a student's regular or special education teachers to submit requests for further consideration of the student's IEP or its implementation. In response to this request, the district's procedures shall include a method for the district to determine whether further consideration is necessary and whether this consideration will be informal or will require an ARD committee meeting. If the district determines that an ARD committee meeting is necessary, the student's current regular and special education teachers shall have an opportunity to provide input. The school district shall also ensure that each teacher who provides instruction to a student with disabilities receives relevant sections of the student's current IEP and that each teacher be informed of specific responsibilities related to implementing the IEP, such as goals and benchmarks, and of needed accommodations, modifications, and supports for the child.

(d)  Students with disabilities shall have available an instructional day commensurate with that of students without disabilities. The ARD committee shall determine the appropriate instructional setting and length of day for each student, and these shall be specified in the student's IEP.

(e)  School districts that jointly operate their special education programs as a shared services arrangement, in accordance with TEC, §29.007, shall do so in accordance with procedures developed by the Texas Education Agency (TEA).

(f)  School districts that contract for services from non-public day schools shall do so in accordance with 34 Code of Federal Regulations, §300.402, and procedures developed by the TEA.

Source: The provisions of this §89.1075 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1076. Interventions and Sanctions.

The Texas Education Agency (TEA) shall establish and implement a system of interventions and sanctions, in accordance with the Individuals with Disabilities Education Act, 20 USC, §§1400 et seq., Texas Education Code (TEC), §29.010, and TEC, Chapter 39, as necessary to ensure compliance with federal and state requirements regarding the implementation of special education and related services. In accordance with TEC, §39.131(a), the TEA may combine any intervention and sanction. The system of interventions and sanctions will include, but not be limited to, the following:

(1)  on-site review for failure to meet compliance requirements;

(2)  required fiscal audit of specific program(s) and/or of the district, paid for by the district;

(3)  required submission of corrective action(s), including compensatory services, paid for by the district;

(4)  required technical assistance from the education service center, paid for by the district;

(5)  public release of compliance review findings;

(6)  special investigation and/or follow-up verification visits;

(7)  required public hearing conducted by the local school board of trustees;

(8)  assignment of a special purpose monitor, master, or management team, paid for by the district;

(9)  hearing before the commissioner of education or designee;

(10)  reduction in payment or withholding of funds; and/or

(11)  lowering of the special education compliance status and/or the accreditation rating of the district.

Source: The provisions of this §89.1076 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1080. Regional Day School Program for the Deaf.

In accordance with the Texas Education Code (TEC), §§30.081-30.087, local school districts shall have access to regional day school programs for the deaf operated by school districts at sites previously established by the State Board of Education (SBOE). Any student who has a hearing impairment which severely impairs processing linguistic information through hearing, even with recommended amplification, and which adversely affects educational performance shall be eligible for consideration for the Regional Day School Program for the Deaf, subject to the admission, review, and dismissal (ARD) committee recommendations.

Source: The provisions of this §89.1080 adopted to be effective September 1, 1996, 21 TexReg 7240.

§89.1085. Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services.

(a)  A student's admission, review, and dismissal (ARD) committee may place the student at the Texas School for the Blind and Visually Impaired (TSBVI) or the Texas School for the Deaf (TSD) in accordance with the provisions of 34 Code of Federal Regulations (CFR), Part 300, the Texas Education Code (TEC), including, specifically, §§30.021, 30.051, and 30.057, and the applicable rules of this subchapter.

(b)  In the event that a student is placed by his or her ARD committee at either the TSBVI or the TSD, the student's "resident school district," as defined in subsection (e) of this section, shall be responsible for assuring that a free appropriate public education (FAPE) is provided to the student at the TSBVI or the TSD, as applicable, in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §§1400 et seq., 34 CFR, Part 300, state statutes, and rules of the State Board of Education (SBOE) and the commissioner of education. If representatives of the resident school district and representatives of the TSBVI or the TSD disagree, as members of a student's ARD committee, with respect to a recommendation by one or more members of the student's ARD committee that the student be evaluated for placement, initially placed, or continued to be placed at the TSBVI or TSD, as applicable, the representatives of the resident school district and the TSBVI or TSD, as applicable, may seek resolution through the mediation procedures adopted by the Texas Education Agency or through any due process hearing to which the resident school district or the TSBVI or the TSD are entitled under the IDEA, 20 USC, §§1401, et seq.

(c)  When a student's ARD committee places the student at the TSBVI or the TSD, the student's resident school district shall comply with the following requirements.

(1)  For each student, the resident school district shall list those services in the student's individualized education program (IEP) which the district cannot appropriately provide in a local program and which the TSBVI or the TSD can appropriately provide.

(2)  The district may make an on-site visit to verify that the TSBVI or the TSD can and will offer the services listed in the individual student's IEP and to ensure that the school offers an appropriate educational program for the student.

(3)  For each student, the resident school district shall include in the student's IEP the criteria and estimated time lines for returning the student to the resident school district.

(d)  In addition to the provisions of subsections (a)-(c) of this section, and as provided in TEC, §30.057, the TSD shall provide services in accordance with TEC, §30.051, to any eligible student with a disability for whom the TSD is an appropriate placement if the student has been referred for admission by the student's parent or legal guardian, a person with legal authority to act in place of the parent or legal guardian, or the student, if the student is age 18 or older, at any time during the school year if the referring person chooses the TSD as the appropriate placement for the student rather than placement in the student's resident school district or regional program determined by the student's ARD committee. For students placed at the TSD pursuant to this subsection, the TSD shall be responsible for assuring that a FAPE is provided to the student at the TSD, in accordance with IDEA, 20 USC, §§1401 et seq., 34 CFR, Part 300, state statutes, and rules of the SBOE and the commissioner of education.

(e)  For purposes of this section and §89.1090 of this title (relating to Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf), the "resident school district" is the school district in which the student would be enrolled under TEC, §25.001, if the student were not placed at the TSBVI or the TSD.

Source: The provisions of this §89.1085 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1090. Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.

For each student placed in a residential setting by the student's admission, review, and dismissal (ARD) committee, including those students placed in the Texas School for the Blind and Visually Impaired TSBVI and the Texas School for the Deaf TSD, the resident school district shall be responsible for transportation at the beginning and end of the term and for regularly scheduled school holidays when students are expected to leave the residential campus. The resident school district is not responsible for transportation costs for students placed in residential settings by their parents. Transportation costs shall not exceed state approved per diem and mileage rates unless excess costs can be justified and documented. Transportation shall be arranged using the most cost efficient means. When it is necessary for the safety of the student, as determined by the ARD committee, for an adult designated by the ARD committee to accompany the student, round-trip transportation for that adult shall also be provided. The resident school district and the residential facility shall coordinate to ensure that students are transported safely, including the periods of departure and arrival.

Source: The provisions of this §89.1090 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1095. Provision of Services for Students Placed by their Parents in Private Schools.

(a)  This section will expire on June 30, 2001, and shall be superseded by §89.1096 of this title (relating to Provision of Services for Students Placed by their Parents in Private Schools or Facilities), beginning July 1, 2001.

(b)  When a student with disabilities who has been placed by his or her parents directly in a private school or facility is referred to the local school district, the local district shall convene an admission, review, and dismissal (ARD) committee meeting to determine whether the district can offer to the student a free, appropriate, public education. If the district determines that it can, the district is not responsible for providing educational or related services to the student until such time as the parents choose to enroll the child in the public school full-time or request services under the dual enrollment rule in subsection (g) of this section.

(c)  All state requirements concerning referral, assessment, and determination of eligibility are applicable to students placed by their parents in private schools once the students have been referred to the local school district. All state requirements concerning special education services are applicable to students admitted under the dual enrollment rule in subsection (g) of this section.

(d)  School districts shall use their established procedures and forms for the referral of students from private schools.

(e)  To the maximum extent possible, the district shall use referral and assessment information from the private schools' records in order to avoid unnecessary duplication of effort or services.

(f)  The district shall provide to private school personnel the opportunity to participate in, and provide information for, the district's ARD committee deliberations when the educational needs of private school students are being considered.

(g)  If the ARD committee determines that a private school student is eligible for, and in need of, special education instruction or related services or both, the parent may choose to enroll the student full-time in the public school. If the parent does not choose to do this, the school district shall make the special education services available only on the basis of dual enrollment. Based on the services and amount of time needed to provide those services, as set forth in each student's individual educational plan (IEP), when parents choose to enroll a child under the dual enrollment provision, the school district shall use one of the following arrangements for dual enrollment:

(1)  enroll the student for at least four consecutive hours per day and count the student eligible for full state average daily attendance (ADA), for contact hours based on the instructional arrangement in which the student is served, and for full federal funding;

(2)  enroll the student for at least two consecutive hours per day and count the student eligible for one-half state ADA, for contact hours based on the instructional arrangement in which the student is served, and for full federal funding; or

(3)  enroll the student for any amount of time needed less than two hours per day and count the student eligible for full federal funding, but not for state ADA and for contact hours.

(h)  The location and procedures for delivery of the instructional or related services or both specified in the IEP shall be determined based on the requirements concerning placement in the least restrictive environment and the policies and procedures of the local district.

(i)  For students served under the provisions of this section, the school district shall be responsible for the employment and supervision of the personnel providing the service, providing the needed instructional materials, and maintaining pupil accounting records. Materials and services provided shall be equivalent to those provided for students enrolled only in the public school and shall remain the property of the school district.

(j)  Students placed in a private school by parent choice shall not be eligible for state funded transportation services. The school district shall provide special transportation with federal funds only when the ARD committee determines that the condition of the student warrants the service in order for the student to receive the instruction or related service set forth in the IEP.

Source: The provisions of this §89.1095 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1096. Provision of Services for Students Placed by their Parents in Private Schools or Facilities.

(a)  The provisions of this section shall be implemented beginning July 1, 2001, and at that time shall supersede §89.1095 of this title (relating to Provision of Services for Students Placed by their Parents in Private Schools). This section will expire on June 30, 2004.

(b)  Except as specifically provided in this section, in accordance with 34 Code of Federal Regulations (CFR), §300.454, no eligible student who has been placed by his or her parent(s) in a private school or facility has an individual right to receive some or all of the special education and related services that the student would receive if he or she were enrolled in a public school district. Except as specifically set forth in this section, a school district's obligations with respect to students placed by their parents in private schools are governed by 34 CFR, §§300.450-300.462.

(c)  When a student with a disability who has been placed by his or her parents directly in a private school or facility is referred to the local school district, the local district shall convene an admission, review, and dismissal (ARD) committee meeting to determine whether the district can offer the student a free appropriate public education (FAPE). If the district determines that it can offer a FAPE to the student, the district is not responsible for providing educational services to the student, except as provided in 34 CFR, §§300.450-300.462 or subsection (d) of this section, until such time as the parents choose to enroll the student in public school full-time.

(d)  Parents of an eligible student ages 3 or 4 shall have the right to "dual enroll" their student in both the public school and the private school beginning on the student's third birthday and continuing until the end of the school year in which the student turns five, subject to the following.

(1)  The student's ARD committee shall develop an individualized education program (IEP) designed to provide the student with a FAPE in the least restrictive environment appropriate for the student.

(2)  From the IEP, the parent and the district shall determine which special education and/or related services will be provided to the student and the location where those services will be provided, based on the requirements concerning placement in the least restrictive environment set forth in 34 CFR, §§300.550-300.553, and the policies and procedures of the district.

(3)  For students served under the provisions of this subsection, the school district shall be responsible for the employment and supervision of the personnel providing the service, providing the needed instructional materials, and maintaining pupil accounting records. Materials and services provided shall be consistent with those provided for students enrolled only in the public school and shall remain the property of the school district.

(e)  The school district shall provide special transportation with federal funds only when the ARD committee determines that the condition of the student warrants the service in order for the student to receive the special education and related services (if any) set forth in the IEP.

(f)  Complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (d) of this section may be filed with the Texas Education Agency under the procedures in 34 CFR, §§300.660-300.662. The procedures in 34 CFR, §§300.504-300.515 (relating to due process hearings) do not apply to complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (d).

Source: The provisions of this §89.1096 adopted to be effective March 6, 2001, 26 TexReg 1837.

Division 3. Memoranda of Understanding Affecting Special Education Students

§89.1100. Memorandum of Understanding on Coordination of Services to Disabled Persons.

Clarification of financial and service responsibilities of the Texas Department of Human Services, the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation, the Texas Rehabilitation Commission, the Texas Commission for the Blind, the Texas Commission for the Deaf, Texas Department of Protective and Regulatory Services, Texas Interagency Council on Early Childhood Intervention, and the Texas Education Agency related to disabled persons are contained in the Memorandum of Understanding on Coordination of Services to Disabled Persons, which is adopted by reference as a rule of the Texas Education Agency. The complete text of the memorandum of understanding may be found in the rules of the Texas Department of Human Services, 40 Texas Administrative Code (TAC) Chapter 72. A copy of the memorandum of understanding is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.

Source: The provisions of this §89.1100 adopted to be effective September 1, 1996, 21 TexReg 7240.

§89.1110. Memorandum of Understanding on Transition Planning for Students Receiving Special Education Services.

(a)  Purpose.

(1)  Under the Texas Education Code, §29.011, Transition Planning, the purpose of this memorandum of understanding (MOU) is to establish "the respective responsibility of each agency for the provision of the services necessary to prepare students enrolled in special education programs for a successful transition to life outside the public school system." The MOU is established among the following state agencies:

(A)  Texas Commission for the Blind;

(B)  Texas Department of Human Services;

(C)  Texas Department of Mental Health and Mental Retardation;

(D)  Texas Education Agency;

(E)  Texas Employment Commission;

(F)  Texas Rehabilitation Commission; and

(G)  Texas Department of Protective and Regulatory Services.

(2)  This MOU also describes implementation of the transition requirements contained in the Individuals with Disabilities Education Act (IDEA), Public Law 101-476, as amended, and the Rehabilitation Act of 1973, as amended through the 1992 amendments, Public Law 102-569.

(3)  This MOU assures compliance by the Texas Education Agency in its role and responsibility for assuring the provision of transition services to all students with disabilities beginning no later than age 16, and younger when appropriate. The other signatory agencies assure compliance with the law within the limits of existing resources and services. All agencies acknowledge that current resources and funding levels are not adequate to meet the needs of students receiving special education services who are moving from school to adult life in Texas. To realize the direction of this MOU, agencies and concerned citizens must actively pursue federal, state, and local resources.

(b)  Preamble.

(1)  This MOU is intended to result in the development of a human services system in Texas that, in a comprehensive array of coordinated services, offers all citizens with disabilities choices and opportunities to achieve maximum independence and integration in the community. This goal is based on the following beliefs.

(A)  All people shall have opportunities to choose where to live, work, and play.

(B)  All people shall have opportunities to make informed choices and control their lives.

(C)  All people have values, preferences, abilities, responsibilities, and limitations.

(D)  All people shall have opportunities to access and participate in their communities.

(E)  People will continue to be influenced by change.

(2)  Students and parents shall be equipped with the knowledge and skills needed to empower them to plan for their futures and to make effective use of personal and public resources in achieving independence.

(3)  The MOU is recognized at the local, regional, and state level as:

(A)  documentation of the agencies' commitment to effecting long-term systemic change that will require extensive interagency collaboration and sharing of resources;

(B)  a document that authorizes and promotes maximum collaborative participation by local agencies in providing effective transition services for students receiving special education services; and

(C)  an acknowledgment of the need for parents, consumers, and advocates to support implementation of the MOU and support the agencies in acquiring the resources needed to assist students in becoming successful adults.

(c)  Individual transition planning with individual students.

(1)  The individual transition planning process shall be collaborative and based on long-range goals. It shall focus on the student's vision for his or her future to include empowerment and inclusion in the community.

(2)  Individual transition planning shall be based on current information regarding the student's knowledge, skills, capabilities, interests, and preferences.

(3)  The individual transition plan shall be a separate document from the individual education plan and focus on considerations that will have the greatest impact on successful independence and integration in the community. Individual transition planning components shall include:

(A)  identifying the student's expectations after exiting public school, including post-secondary education, integrated employment, vocational training, continuing and adult education, adult services, independent living, community participation, recreation and leisure, as well as other important life considerations;

(B)  identifying a network of support, such as family, friends, coworkers, agencies, and community resources available to the public, that are needed to achieve the student's desired goals;

(C)  identifying when and how support services shall be provided;

(D)  identifying needed transition services that are a coordinated set of activities, including instruction, community experiences, the development of employment and other post-school adult living objectives, and if appropriate, acquisition of daily living skills and functional vocational evaluation;

(E)  identifying time lines, with projected beginning and ending dates, for all activities leading toward attaining goals; and

(F)  identifying the needed transition services to facilitate the transition to the home community and to the receiving school district for students who are incarcerated, in addition to the other required components.

(4)  Individual transition planning shall begin no later than age 16 for each student receiving special education services. Younger students, particularly those who have severe disabilities, are at risk of dropping out of school, or whose needs require early collaboration, shall also receive individual transition planning if recommended by the admission, review, and dismissal (ARD) committee. A signatory agency may request an ARD committee meeting to consider transition planning for a student younger than age 16.

(5)  A student's progress shall be reviewed and necessary revisions or additions shall be made on each individual transition plan at least annually.

(6)  Transition planning shall be initiated by the school district.

(7)  Transition planning and annual reviews of the individual transition plan shall include the following participants: the student; parent/guardian or surrogate; at least one representative from special education; and one additional representative from general education, special education, or vocational education. Other participants may include representatives from community resources that are available to the public and agencies that can assist the student to achieve identified goals. All participants may invite other interested individuals to the meeting.

(8)  The participants in an individual transition planning meeting shall be determined annually, based on the individual student's needs and plans for the future, and not solely on disability.

(9)  If an agency that was invited to send a representative to a meeting does not do so, the school district shall take other steps to obtain the participation of the agency in the planning of any transition services outlined in subsection (d) of this section.

(10)  The relationship of the individual transition plan to the ARD committee process and the individual education plan shall be as follows.

(A)  The individual transition plan shall be developed apart from and before the individual education plan. To minimize scheduling conflicts, the school district may schedule the development and annual review of the individual transition plan immediately before the ARD committee's development and review of the individual education plan.

(B)  The transition services identified in the student's individual transition plan that are the responsibility of the school district shall be noted in the student's individual education plan. Beginning no later than age 16, and younger when appropriate, the student's individual education plan shall include a statement of needed transition services that identifies annual goals, short-term objectives, and services and includes instruction, community experiences, the development of employment, and other post-school adult living objectives. If appropriate, the statement also shall address acquisition of daily living skills and functional vocational evaluation. In addition, if appropriate, the individual education plan shall include a statement of each agency's responsibilities before the student leaves the school setting.

(C)  If the ARD committee determines that services are not needed in one or more of the areas specified in subparagraph (B) of this paragraph, the individual education plan must include a statement indicating this and the basis on which the determination was made.

(D)  If the individual education plan requires revision due to the development of the individual transition plan, a new ARD committee meeting must be convened as soon as possible to revise the individual education plan.

(E)  If a school district or agency does not provide transition services agreed on and contained in the individual education plan, the school district shall convene an individual transition planning meeting as soon as possible to identify alternative strategies to meet the transition objectives. An ARD committee meeting shall be convened as soon as possible to adjust the individual education plan to reflect changes in the individual transition plan.

(d)  Participation.

(1)  Local collaborative planning meetings.

(A)  Local collaborative planning groups should develop common goals, productive working relationships, and a written process for implementing and maintaining effective transition planning. These groups should include persons with disabilities, their parents or other family members, educators, agencies and/or their contracted providers, community organizations that provide services to the public, representatives from consumer and/or advocacy organizations, and business and community leaders.

(B)  Local representatives of agencies and/or their contracted providers should meet with school district staff to develop and implement a plan for agency involvement in transition planning. Part of the process shall involve a review of students' profiles to allow agencies access, before the individual transition plan meeting, to information needed to determine appropriate involvement.

(C)  Local coordinated planning, adequate notice, and cooperative scheduling is necessary to promote the availability of personnel to attend individual transition planning meetings.

(D)  Successful individual transition planning is not predicated on participation of all agencies at all meetings.

(2)  Individual transition planning meetings. The following shall occur for each individual transition plan.

(A)  The school district shall provide a 30-day advance notice of the transition planning meeting to those invited. If the meeting date is rescheduled, the 30-day notice requirement may be waived if all parties, including the student and the parent, agree. In addition to the requirements of §89.1045 of this title (relating to Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings), notice for the purpose of developing an individual transition plan or for including the statement of needed transition services in the individual education plan must indicate this purpose, indicate that the student shall be invited, and identify any other agency that shall be invited to send a representative.

(B)  At a minimum, agency information or written material shall be available for all invited. The written information shall include:

(i)  identification of services;

(ii)  eligibility criteria for services;

(iii)  availability of services;

(iv)  cost of services, as applicable;

(v)  how the service may be accessed;

(vi)  contact person;

(vii)  phone number;

(viii)  address; and

(ix)  complaint procedure.

(C)  The following shall occur for a student who is currently receiving services from agencies.

(i)  Representatives from agencies shall attend individual transition planning and review meetings for the student.

(ii)  The elements of the student's individual transition plan to be accomplished by an agency shall be included in the agency's individualized plan of service for the student.

(D)  Agencies are encouraged, based on local collaborative planning and availability of personnel, to attend individual transition planning and review meetings for any student who is not currently receiving, but may be in need of, services.

(E)  The individual transition plan may include identification of and referral for potential services, but may not include commitment of services for agencies not attending the meeting.

(F)  Decisions at the individual transition planning meeting shall reflect the intent of a collaborative planning process.

(G)  A copy of the individual transition plan shall be given to the student and his or her parent, guardian, or surrogate. A copy shall be provided to other participants on request.

(3)  Attendance of students and parents, guardians, or surrogates.

(A)  A student and his or her parents are responsible for planning for and attending individual transition planning meetings. They should be prepared to discuss their ideas and visions for the student's adulthood. They are encouraged to bring relevant information and resources.

(B)  Elements of the individual transition plan that are the responsibility of the student and family shall be identified at the individual transition planning meeting.

(4)  Texas Commission for the Blind.

(A)  The Texas Commission for the Blind (TCB) acknowledges its role in providing transition services for students who are blind or visually impaired and receiving special education services.

(B)  A representative of TCB shall provide periodic training for students who are blind or visually impaired, their parents, and teachers in planning for successful transition. Summer work programs in selected areas for eligible students who are blind or visually impaired shall be offered.

(C)  Students attending the Texas School for the Blind and Visually Impaired who are eligible for services shall be served by the TCB representative.

(D)  A student who has not been referred to TCB may be referred before or during his or her individual transition planning meeting.

(E)  A representative shall provide follow-up services for eligible students after they exit from the public schools to complete vocational rehabilitation services.

(5)  Texas Department of Human Services.

(A)  The Texas Department of Human Services (TDHS) acknowledges its role in providing transition services for students receiving special education services.

(B)  A TDHS representative shall be designated as the contact for the ongoing implementation of this MOU. The representative shall provide information about the range of services available to students with disabilities who meet TDHS program eligibility requirements or to their families. The representative also shall act as departmental liaison to other state agencies and local cooperative planning groups.

(C)  The TDHS shall send a representative to the individual transition planning or review meetings for students on long-term care caseloads.

(6)  Texas Department of Mental Health and Mental Retardation.

(A)  The Texas Department of Mental Health and Mental Retardation (TDMHMR) acknowledges its role in providing transition services for students receiving special education services.

(B)  Mental Health Authorities (MHA) or Mental Retardation Authorities (MRA) shall send a representative to the individual transition planning or review meetings for students for whom individual program plans, individual treatment plans, or individual habilitation plans have been developed that indicate a comprehensive level of involvement. This does not include students with service plans for information and referral or written plans for in-home and family support.

(C)  For a student not receiving services, his or her eligibility determination for mental retardation services under the Mentally Retarded Persons Act of 1977, as amended in 1993, may be determined in the following ways.

(i)  Referrals for determining mental retardation may be made to MRA.

(ii)  The psychologist or associate psychologist may base the determination on assessment performed by a school district or a public or private agency. Eligibility determination may be expedited by providing MRA a psychological assessment conducted by a physician or psychologist licensed to practice in Texas that includes the following:

(I)  name of individual assessed;

(II)  date of birth of individual assessed;

(III)  address of individual assessed;

(IV)  dates of assessment;

(V)  results of previous assessment, listing dates, tests, scores, and examiner names for all previous intellectual and adaptive behavior assessments;

(VI)  results of current intellectual assessment, listing the names and scores of all intelligence tests administered, including individual scale scores if available;

(VII)  results of current adaptive behavior assessment, listing the scale names and scores of all standardized adaptive behavior measures administered, including individual scale scores, if available, as well as an overall adaptive behavior level;

(VIII)  estimated age at which mental retardation was identified, including source of information;

(IX)  findings, consisting of a narrative description of test results in the areas listed in subclauses (I)-(VII) of this clause. Relative strengths and weaknesses shall be described. Also, considerations of the impact of the person's cultural background, language, communication style, physical or sensory impairments, motivation, emotional factors, and testing conditions on the results shall be included;

(X)  conclusions, diagnosis (e.g., Diagnostic Statistical Manual IV (DSM)), and recommendations; and

(XI)  name, signature, title, and licensure or certification number of examiner.

(D)  Mental health services under the Texas Children's Mental Health Plan are targeted toward children and adolescents ages 0-17 with severe emotional, behavioral, or mental disorders (excluding a single diagnosis of substance abuse, autism, pervasive developmental disorder, or mental retardation), and at least one of the following:

(i)  a severe functional impairment;

(ii)  identification as being at risk of removal from the home or preferred living situation; or

(iii)  identification as emotionally disturbed in special education.

(E)  Students meeting the criteria in subparagraph (D) of this paragraph may be referred to MHA for assessment and services.

(7)  Public education.

(A)  The Texas Education Agency (TEA) acknowledges its role in assuring that transition services are provided for students receiving special education services.

(B)  The following services and activities supporting transition shall be provided on an individual basis when determined appropriate by the school district:

(i)  training for and counseling with students and parents about identifying their expectations and transition service needs; and

(ii)  training for parents in reinforcing transition skills at home.

(C)  The following services and activities supporting transition shall be provided on an individual basis by the school district:

(i)  educational programming and related services, including the following:

(I)  instruction;

(II)  community experiences;

(III)  the development of employment;

(IV)  other post-school adult living objectives; and

(V)  if appropriate, acquisition of daily living skills and a functional vocational evaluation, based on the services of the individual transition plan that have been identified as the responsibility of the school district and included in the individual education plan;

(ii)  development of community-based instructional alternatives focusing on independent living and employment;

(iii)  development of instructional environments for students age 18-21 receiving special education services, including age-appropriate adult settings;

(iv)  referral of students and parents to other agencies for service consideration; and

(v)  provision of information about transition planning annually to each student receiving special education services and his or her family, beginning by age 14 or earlier as requested by the student or parents, until the student's first individual transition plan is developed.

(8)  Texas Employment Commission.

(A)  The Texas Employment Commission (TEC) acknowledges its role in providing transition services for students receiving special education services. The TEC helps job-ready applicants secure employment. The same array of services shall be extended to job-ready students with disabilities in their pursuit of vocational opportunities.

(B)  Texas Employment Commission personnel may be involved in the individual transition planning meetings as local office staffing allows.

(C)  Primarily, the TEC shall receive referrals from other agencies.

(9)  Texas Rehabilitation Commission.

(A)  The Texas Rehabilitation Commission (TRC) acknowledges its role in providing transition services for students receiving special education services.

(B)  Students currently receiving TRC services are defined as those who have applied and been determined eligible for services.

(C)  Students attending the Texas School for the Deaf who have been determined eligible for services shall be served by TRC.

(D)  Students may be referred to TRC at any time.

(E)  A TRC representative shall provide follow-up services for eligible students after they exit from the public school to complete vocational rehabilitation services.

(10)  Texas Department of Protective and Regulatory Services.

(A)  The Texas Department of Protective and Regulatory Services (PRS) acknowledges its role in providing transition services for students receiving special education services who are in the managing conservatorship of PRS or for whom Adult Protective Services has an active case.

(B)  For any student who is receiving special education services and is in the managing conservatorship of PRS, a Child Protective Services worker or his or her representative, shall be involved in developing and reviewing the student's individual transition plan.

(C)  For any student aged 18-21 who is receiving special education services and has an active case with Child Protective Services or Adult Protective Services, a Child Protective Services worker or an Adult Protective Services worker or his or her representative shall participate in developing and reviewing the student's individual transition plan.

(e)  Information sharing.

(1)  Local.

(A)  Each spring, each special education program shall provide an aggregate of the following information to TEA and local service agencies: age, gender, ethnicity, disabilities, and functional level of students with individual transition plans.

(B)  The agencies, within the boundaries of existing law, shall coordinate and share diagnostics with other agencies to enhance transition planning, avoid duplication of effort, and prevent barriers to services.

(C)  On request, school district, regional education service center (ESC), and local agency staff shall be available to present information about services to educational or administrative staff, parents, students, or one another.

(2)  State.

(A)  The TEA shall provide all signatory agencies an aggregate of the data received, as identified in paragraph (1)(A) of this subsection.

(B)  The aggregate of data gathered for local planning shall be used for budget development and strategic planning at the state level.

(C)  Each signatory agency shall provide training for teachers, administrators, counselors, local service agency representatives, and other professionals vested in transition to ensure full participation in the transition planning process.

(f)  Problem resolution.

(1)  Efforts shall be made to resolve problems that arise among agency staff at the local level. The local agencies may cooperatively develop and agree on formal procedures for resolving problems.

(2)  Student or parent complaints concerning the actions of a school district or other service agencies shall be addressed according to that agency's established procedures.

(g)  Terms of the MOU. This MOU shall be effective when it is adopted by each signatory agency. The MOU may be reviewed and considered for expansion, modification, or amendment at any time the executive officers of the named agencies agree or at least every two years. The MOU remains in effect until TEA adopts proposed changes by rule and all other signatory agencies adopt the changes by reference. The undersigned agree to collaboratively pursue additional resources to fulfill the provisions of this MOU.

Source: The provisions of this §89.1110 adopted to be effective September 1, 1996, 21 TexReg 7240.

§89.1115. Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Care Facilities.

(a)  Introduction.

(1)  Purpose of MOU.

(A)  As a result of completing investigations and activities directed by the Senate Committee on Health and Human Services, 73rd Texas Legislature, 1993, the parties to this memorandum of understanding (MOU) have recognized the need to strengthen interagency coordination with regard to ensuring that school-age (between birth and 22 years) residents of residential care facilities (RCFs) receive a free appropriate public education, as required under the Individuals with Disabilities Education Act (IDEA), Part B; 20 United States Code (USC), §§1400 et seq. The purpose of this MOU is to address improving interagency coordination with regard to a local education agency’s (LEA’s) provision of special education services to students with disabilities residing in residential care facilities (RCFs).

(B)  Given this purpose, this MOU identifies the following:

(i)  responsibilities and programs of state agencies that place school-age residents in RCFs, fund these RCF placements, serve these RCF residents, and/or regulate these RCFs;

(ii)  areas where increased, more effective interagency coordination can be accomplished with regard to the provision of special education services;

(iii)  procedures and policies for implementing this enhanced level of interagency coordination; and

(iv)  procedures for resolving disputes that may arise in implementing this MOU.

(C)  The provisions of this MOU will be implemented in a manner consistent with all state and federal laws, and based on existing resources.

(2)  Parties to MOU.

(A)  The following parties are participating in this MOU because they place school-age individuals in RCFs, fund these RCF placements, serve these RCF residents, and/or regulate these RCFs.

(i)  Texas Education Agency (TEA);

(ii)  Texas Department of Human Services (TDHS);

(iii)  Texas Department of Mental Health and Mental Retardation (TDMHMR);

(iv)  Texas Department of Health (TDH);

(v)  Texas Department of Protective and Regulatory Services (TDPRS);

(vi)  Texas Interagency Council on Early Childhood Intervention (ECI);

(vii)  Texas Commission on Alcohol and Drug Abuse (TCADA);

(viii)  Texas Juvenile Probation Commission (TJPC); and

(ix)  Texas Youth Commission (TYC).

(B)  The state agencies specified in subparagraph (A) of this paragraph will be collectively referred to as “parties.” Health and human services agencies shall refer to all the parties except TEA.

(3)  Relationship to other memoranda of understanding. The following memoranda of understanding have been previously executed and address some of the school-age residents of residential care facilities.

(A)  Memorandum of Understanding Defining Responsibilities to Children Who Are Medically Fragile, executed on October 27, 1994, by TEA, Texas Commission for the Blind (TCB), TDH, TDHS, TDMHMR, TDPRS, and ECI.

(B)  Memorandum of Understanding Relating to School-Age Residents of Intermediate Care Facilities for the Mentally Retarded, executed in 1992 between TEA and TDHS, 19 Texas Administrative Code (TAC) §89.1105.

(4)  Definitions.

(A)  Residential care facilities are facilities which provide 24-hour care to more than six students between the ages of birth and 22 years who have been placed for non-educational reasons. These facilities include:

(i)  child care facilities or institutions;

(ii)  foster group homes;

(iii)  therapeutic foster group homes;

(iv)  habilitative foster group homes or agency group homes regulated by TDPRS;

(v)  intermediate care facilities for the mentally retarded (ICFs-MR);

(vi)  psychiatric treatment centers;

(vii)  therapeutic camps or ranches;

(viii)  residential treatment centers; and

(ix)  nursing or convalescent homes.

(B)  Students with disabilities are school-age (i.e., between the ages of birth and 22) individuals with “mental retardation; hearing impairments, including deafness; speech or language impairments; visual impairments (including blindness); serious emotional disturbance; orthopedic impairments; autism; traumatic brain injury; other health impairments; or specific learning disabilities; and who, by reason thereof, need special education and related services,” pursuant to IDEA, 20 USC, §1401(a)(1)(A).

(b)  Parties’ responsibilities to students with disabilities residing in residential care facilities (RCFs).

(1)  Texas Education Agency.

(A)  The Texas Education Agency (TEA) is the state education agency (SEA). As an SEA, TEA is responsible for ensuring that a Free Appropriate Public Education (FAPE) is provided to all students with disabilities residing in the State of Texas and that all requirements of IDEA, Part B, are met, pursuant to 34 CFR, §300.600. A FAPE means special education and related services that are provided at public expense under public supervision; meet the state standards which include the requirements of IDEA, Part B; include preschool, elementary, and secondary school education; and are provided in conformity with an individual education plan, pursuant to 20 USC, §1401(a)(18).

(B)  In most cases, local education agencies (LEAs), primarily independent school districts in Texas, have the direct responsibility of providing FAPE to students with disabilities whom the LEAs are obligated to serve under Texas Education Code, §25.001. The TEA is responsible for ensuring that LEAs comply with all state and federal requirements concerning the provision of FAPE.

(C)  Within this general responsibility to assure FAPE, TEA specifically assures that each child with a disability, regardless of severity, residing within an LEA’s jurisdiction will be identified, located, and evaluated in accordance with IDEA and its implementing regulations. To meet this responsibility, TEA requires LEAs to establish policies and procedures to identify, locate, and evaluate students with disabilities residing within their jurisdictions. Activities done pursuant to these policies and procedures are commonly referred to as “child find” activities because LEAs actively search for students with disabilities residing within their jurisdictions, often in coordination with regional education service centers and state agencies. These “child find” activities include searching for students with disabilities residing in RCFs.

(D)  Before any student is placed in special education, a full and individualized evaluation is completed to determine eligibility and the nature of the disability.

(E)  The local admission, review, and dismissal (ARD) committees are responsible for developing the individual educational plans (IEPs) of students with disabilities after considering the results of the evaluation. The TEA does not have the general authority to review or modify in any way the individual decisions of ARD committees made after following federal and state special education procedures. Parents, however, have procedural safeguards available to challenge decisions of ARD committees which include requesting due process hearings under 19 TAC Chapter 89, Subchapter AA, §§89.1151-89.1190, and filing complaints with the office responsible for special education complaints at TEA. Additionally, TEA has a regular monitoring system for reviewing LEA compliance with federal and state special education requirements.

(F)  The TEA also specifically assures that each LEA in Texas will provide FAPE to students with disabilities in the least restrictive environment. When deciding what is the least restrictive environment for a student in an RCF, the ARD committee must base its decision on the individual needs of the student, not what is the most convenient arrangement for the school district or the RCF.

(G)  The LEAs are responsible for implementing the IEP. The IEPs typically contain specified instructional and related services. Related services are intended to support the provision of special education services and are only provided when they are necessary for the student to benefit from special education instruction.

(H)  Although TEA and LEAs are responsible for ensuring that all students with disabilities residing in Texas receive FAPE, this responsibility under IDEA and its implementing regulations does not:

(i)  limit the responsibility of state agencies other than educational agencies for providing or paying for some or all of the costs of educating these students if obligated under another federal or state statutory or regulatory authority, pursuant to 34 CFR, §300.600(c); and

(ii)  permit a state to reduce medical and other assistance available to children with disabilities, or alter the eligibility of a child with a disability under Title V (Maternal and Child Health) or Title XIX (Medicaid) to receive services that are also part of FAPE, pursuant to 34 CFR, §300.601.

(2)  Texas Interagency Council on Early Childhood Intervention.

(A)  The Texas Interagency Council on Early Childhood Intervention (ECI) is the lead agency under the Human Resources Code, Chapter 73, and the Individuals with Disabilities Education Act (IDEA), Part H, for early childhood intervention efforts for infants and toddlers with developmental delays or the potential for developmental delays between the ages of birth and three years. The ECI is governed by an interagency council composed of representatives from six health and human service agencies which provide some of the services needed by infants and toddlers who have developmental delays or the potential for developmental delays, and their parents, and three public members who are parents of children who have developmental delays. The council is responsible for the planning and implementation of a service system which benefits families with young children who are eligible for services under the Human Resources Code, Chapter 73, and IDEA, Part H.

(B)  These services include providing assistance in dealing with variations in normal child development in one or more of the following areas:

(i)  cognitive development;

(ii)  physical development, including hearing and vision;

(iii)  motor skills;

(iv)  nutritional status;

(v)  communications development;

(vi)  social and emotional development; and

(vii)  adaptive development and self-help skills.

(C)  When infants and toddlers between birth and age three with developmental delays or the potential for developmental delays are discovered through the child find process in RCFs, they will be referred to LEAs by the RCFs and to an ECI-funded program by the LEAs for appropriate services. These services will be provided pursuant to the Human Resources Code, Chapter 73; IDEA, Part H; and existing MOUs between ECI and TEA.

(3)  Texas Department of Human Services. The Texas Department of Human Services (TDHS) is responsible for the licensing, under the Texas Health and Safety Code, Chapter 242, and Medicaid certification, as the designated state survey agency, of the following long-term care facilities, which may include children as residents:

(A)  Nursing facilities. Nursing facilities primarily provide skilled nursing care and related services, as well as rehabilitation services, to injured, disabled, or sick persons who reside in the facility.

(B)  Intermediate care facilities for the mentally retarded (ICFs/MR). Intermediate care facilities for the mentally retarded provide institutional care and treatment for persons with mental retardation and persons with related conditions. These facilities range in size from small group homes to large state schools.

(4)  Texas Department of Mental Health Mental Retardation.

(A)  The Texas Department of Mental Health Mental Retardation (TDMHMR) is the state mental health and mental retardation authority and, as such, oversees the following residential programs that are six beds or greater and may serve students with disabilities as defined in this MOU.

(i)  The intermediate care facilities/mental retardation or related conditions (ICF-MR/RC) Medicaid program provides residential and habilitation services to persons with mental retardation and to persons with a related condition. The TDMHMR is the operating agency for the ICF-MR/RC program, and the Health and Human Services Commission is the single state Medicaid agency. Providers who participate in this program have a contract with TDMHMR to deliver services under Title XIX of the Social Security Act (the Medicaid program).

(ii)  The TDMHMR adopts rules and standards to ensure proper care and treatment of patients in private mental hospitals and mental health facilities required to obtain a license under the Texas Health and Safety Code, Chapter 577. All other licensing responsibilities for these facilities are performed by the Texas Department of Health.

(iii)  The TDMHMR designates local mental health and mental retardation authorities in local service areas. A community mental health or mental retardation center, established under the Texas Health and Safety Code, Chapter 534, can be designated as a local mental health or mental retardation authority. The community center may own and operate residential services for students with disabilities, as defined in this MOU.

(B)  The TDMHMR is authorized by law to provide mental health and mental retardation residential services to students with disabilities, as defined in the MOU, instate-operated facilities and community programs pursuant to the Texas Health and Safety Code, §§531.001 et seq.

(5)  Texas Department of Health. The Texas Department of Health (TDH) is responsible for the following programs that may provide services to school-age residents of RCFs.

(A)  Child health services. This program provides comprehensive health evaluations for infants, children, and adolescents, including health education, with emphasis on injury prevention, age-appropriate dietary patterns, normal child development, and parenting skills. Services are provided by agency employees, contracts with local government providers, and contracts with private sector providers. The TDH is authorized to provide these services under Title V of the Social Security Act and the Maternal and Infant Health Improvement Act, the Health and Safety Code, Chapter 32.

(B)  Texas medical assistance program (Medicaid) which includes the early and periodic screening, diagnosis, and treatment program (EPSDT). The EPSDT program provides comprehensive health care services that include preventive periodic screening, diagnosis, and treatment of medical and dental health problems to children eligible for Medicaid. Services are provided through fee-for-service billing by local government providers and private sector providers. The TDH is authorized to provide these services under the Social Security Act §§1902(a)(4)(B) and 1905(r).

(C)  Medically dependent children program (MDCP). The MDCP provides in-home and out-of-home licensed nursing, facility-based respite care, and regular Medicaid state plan benefits. Services are provided through contracts with private sector providers. The TDH is authorized to provide these services under the Social Security Act, §19115(c).

(D)  Children with special health care needs program (Chronically ill and disabled children’s services (CIDC)). The CIDC provides case management, medical care, and related services for children with certain chronic illnesses or conditions. Services are provided by agency employees, through contracts with private sector providers and fee-for-service billing by private sector providers. The TDH is authorized to provide these services under Title V of the Social Security Act and the Chronically Ill and Disabled Children’s Act, Chapter 35 of the Health and Safety Code.

(E)  Vision and hearing screening program. This program provides training and certification for vision and hearing screeners to prevent eye injuries and preserve hearing. The services are provided by agency employees and through contract with private sector providers. The TDH is authorized to provide these services under the Special Senses and Communications Disorders Act, Chapter 36 of the Health and Safety Code.

(F)  School health program. The school health program provides start-up funding for model school health centers to provide health, social, and mental health services for children and adolescents. Services are provided through grants to local government providers.

(G)  Speech language screening program. The speech language screening program provides training and certification for speech/language screeners in identifying and referring children with communication delay. Services are provided by agency employees and through contracts with private sector providers. The TDH is authorized to provide these services under the Special Senses and Communication Disorders Act, under the Health and Safety Code, Chapter 36.

(H)  Childhood lead prevention program. This program provides tracking and technical support for the professionals caring for children with positive EPSDT blood screening for lead. Services are provided by agency staff. The TDH is authorized to provide these services under the Social Security Act, §1905(r).

(I)  Newborn screening program. This program provides testing at birth and two weeks of age for all children for five rare disorders to ensure early diagnosis and treatment. Services are provided by agency staff. The TDH is authorized to provide these services under the Phenylketonuria, Other Heritable Diseases, and Hypothyroidism Act, the Health and Safety Code, Chapter 33.

(J)  Program for amplification for children in Texas (PACT). The PACT provides diagnostic evaluation of hearing impairments, hearing aid evaluations and hearing aids, and related hearing aid services. Services are provided through contracts with private sector providers and fee-for-service billing by private sector providers. The TDH is authorized to provide these services under the Special Senses and Communications Disorders Act, the Health and Safety Code, Chapter 36.

(K)  Immunization program. This program provides vaccines for preventable diseases to all public and some private health care providers, tracks the incidence of immunization of preventable diseases, and investigates epidemics. Services are provided by TDH employees, through contracts with local government providers and through agreements with private sector providers. The TDH is authorized to provide these services under federal law by pursuant to 42 USC, 247b, and 42 CFR, 51b, Subparts A and B. The immunization program is authorized in state law under the Health and Safety Code, Chapters 81 and 161, and the Texas Education Code, §38.001.

(L)  Spinal screening program. This program provides instructor and screener training and spinal screening to detect abnormal spine curvature in children attending public and private schools. The services are provided by agency employees. The TDH is authorized to provide these services under the Abnormal Spinal Curvature in Children Act, the Health and Safety Code, Chapter 37.

(6)  Texas Department of Protective and Regulatory Services.

(A)  The Texas Department of Protective and Regulatory Services (TDPRS), through its Child Care Licensing Division, is responsible for licensing the following entities that are RCFs for purposes of this MOU:

(i)  foster group homes, including the following, under the authority of the Texas Human Resources Code, Chapter 42:

(I)  primary medical care homes;

(II)  habilitative homes;

(III)  therapeutic homes;

(IV)  homes serving children with autistic-like behavior; and

(V)  basic care homes; and

(ii)  twenty-four hour child care institutions, including the following, under the authority of the Texas Human Resources Code, Chapter 42:

(I)  emergency shelters;

(II)  residential treatment centers;

(III)  institutions serving mentally retarded children;

(IV)  institutions providing basic child care;

(V)  halfway houses for children; and

(VI)  therapeutic camps; and

(iii)  maternity homes under the authority of the Texas Health and Safety Code, Chapter 249.

(B)  The TDPRS, through its Protective Services to Families and Children (CPS) Division, is responsible for the following programs that provide services to children who may need special education.

(i)  Children with disabilities projects are located in the Edinburg and Arlington areas and provide services to children with disabilities who are in the care of CPS or who have been referred to CPS because of being at-risk of child abuse or neglect. The TDPRS is authorized to provide services to these children under the Child Abuse Prevention and Treatment Act, 42 United States Code Annotated (USCA), §§5101-5106h.

(ii)  Protective services to families and children program (CPS) provides services to all children, including children with disabilities, who have been or are at risk of being abused, neglected, or abandoned. Services may include investigation of alleged abuse or neglect, assessment, counseling, referrals to appropriate resources, family preservation services, and foster care. The TDPRS is authorized to perform these duties under the Texas Human Resources Code, Chapter 40; the Texas Family Code, Chapters 102, 153, 261-264; and Child Abuse Prevention and Treatment Act, 42 USCA, §§5101-5106h; and Titles IV-B and IV-E of the Social Security Act, 42 USCA, §§620-628 and §§670-679.

(7)  Texas Youth Commission.

(A)  The Texas Youth Commission (TYC) is the state juvenile correctional agency for youth who are committed to the TYC by local juvenile courts upon the youth’s adjudication for delinquent conduct.

(B)  The TYC places and funds RCFs through contracts for residential care for certain TYC youth. The TYC also certifies RCFs that take only TYC youth.

(C)  The TYC halfway houses and those RCFs that are certified by TYC are required through TYC core standards to provide an educational component.

(D)  The RCFs which contract with TYC are responsible for providing the educational component as required by TDPRS licensing standards based on the level of care they provide.

(E)  All RCFs rely on LEAs to meet these licensing or core standards as provided in paragraph (1) of this subsection.

(8)  Texas Juvenile Probation Commission. The Texas Juvenile Probation Commission (TJPC) is responsible for setting standards of operation and monitoring juvenile detention facilities and post-adjudication facilities. The TJPC also provides some funding to county operated juvenile probation departments, which may be used for placement of juvenile offenders in residential care facilities.

(9)  Texas Commission on Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug Abuse (TCADA) licenses facilities (including residential facilities) that provide chemical dependency treatment for adolescents.

(c)  Child find notification to local education agencies (LEAs).

(1)  To further the assurances of TEA and LEAs to identify, locate, and evaluate students with disabilities residing in RCFs, the health and human services agencies agree to effectuate the following “child find” notification requirement: within three working days of admitting an individual between the ages of birth and 22 into a RCF for an educationally significant time period, the facility shall notify in writing the admittance of such an individual to the school district in which the RCF is located.

(2)  To the extent authorized by existing federal and state laws, the health and human services agencies agree to adopt and implement policies and procedures requiring RCFs covered by this MOU to comply with the notification requirement as specified in subsection (c) of this section. These agencies further agree to have these policies and procedures in effect by September 1, 1996, to the extent possible, but no later than January 1, 1997.

(3)  The TEA agrees to assist any of the health and human services agencies in the development and implementation of this “child find” notification requirement. The TEA further agrees to assist RCFs in identifying which school district should be given the “child find” notification specified in subsection (c) of this section.

(d)  Sharing of information.

(1)  The parties acknowledge that one vital component of interagency coordination with regard to the provision of special education services is the ability to share information between the parties and LEAs. Increasing this sharing should improve efficiency and minimize duplication of efforts. Given this acknowledgment, the parties agree to share all appropriate client and student records to the extent permitted by the applicable confidentiality statutes and regulations. Additionally, the parties agree to develop a “universal” consent form(s) by September 1, 1996, to facilitate this sharing of information.

(2)  The parties also acknowledge that LEAs need the following information and/or records in order to determine the appropriate educational services for students with disabilities:

(A)  birth certificate or another document as proof of the child’s identity;

(B)  medical history and medical records, including current immunization records;

(C)  social history;

(D)  vision and hearing screening and/or evaluation;

(E)  assessment reports including psychological, educational, related service, and vocational assessments;

(F)  RCF’s treatment plan of care;

(G)  educational history (at least previous educational placement to facilitate LEA’s efforts to obtain educational records from previous LEA); and

(H)  any court order which authorizes the placement in the RCF.

(3)  Given this acknowledgment, the health and human services agencies agree to adopt and implement, to the extent permitted by existing federal and state laws, policies and procedures requiring RCFs to provide LEAs any of the information specified in paragraph (2) of this subsection and/or records available to the RCF within 14 working days of the school-age resident’s admission to the RCF. These agencies further agree to have these policies and procedures in effect by September 1, 1996, to the extent possible, but no later than January 1, 1997.

(4)  To the extent permitted by the Family Educational Privacy Rights Act, 20 USC, §1232g, and its implementing regulations, 34 CFR, Part 99, TEA assures that LEAs will provide available educational records requested by RCFs within 14 working days.

(e)  Educational space.

(1)  The parties acknowledge that all students with disabilities are entitled to be educated in the least restrictive environment (LRE) in accordance with the requirements of IDEA and its implementing regulations. The parties further acknowledge that many RCF placements are made primarily for non-educational reasons, such as for treatment or juvenile justice considerations. Nevertheless, TEA and LEAs must assure that the LRE requirements are met for these placements.

(2)  Under IDEA, ARD committees are charged with the responsibility of deciding what is the appropriate educational placement for individual students with disabilities, including school-age residents of RCFs. In making this decision, ARD committees must consider the non-educational needs of these students that restrict the ability of school districts to serve these students on campus in a less restrictive environment. These needs include the student’s health and safety needs (e.g., medically fragile), the student’s placement in a restrictive RCF program (e.g., juvenile incarceration), and the student’s participation in intensive care and treatment (e.g., intensive substance abuse treatment). The ARD committees’ decision process must be individualized and not done on a categorical basis, such as the category of the student’s disability or residence in a RCF. Further, ARD committees cannot determine educational placement on the basis of what is most convenient to school districts or RCFs.

(3)  The TEA assures that, before making these decisions, ARD committees will consider:

(A)  the care and treatment plan;

(B)  the nature or conditions of the RCF program;

(C)  the RCF’s preference as to where the student should be educated in light of the student’s care and treatment needs and the RCF program; and

(D)  the RCF’s description of available space should the student need to be educated at the RCF.

(4)  The ARD committees are also charged with the responsibility of determining whether space available at the RCF is adequate for the education of individual students for whom the ARD committee is considering educational placement at the RCF. This determination must be based on the individual student’s needs and the RCF’s description of available space.

(5)  If the ARD committee decides that the space described by the RCF is not adequate for the education of the individual student in question or the RCF has no available space, the ARD committee shall find alternative locations for providing educational services. If the LEA disputes the accuracy of the RCF’s description of available space, the LEA may use the dispute resolution procedures specified in subsection (h) of this section.

(6)  If the RCF subsequently decides to eliminate or reduce space it has previously described to the LEA as being available for one or more individuals, the RCF shall notify the LEA immediately. If the RCF determines that the space it is currently making available to the LEA will no longer be available for one or more individuals or must be reduced, the RCF shall notify the LEA at least 30 days with regard to an individual student or 90 days if the RCF decision impacts more than one student prior to taking any action regarding this space.

(7)  The notice requirements specified in paragraph (6) of this subsection are not applicable to those situations where an RCF must interrupt or terminate a school district’s use of space due to regulatory actions beyond the RCF’s control (e.g., an order to immediately receive additional clients because of an emergency occurring in another RCF).

(8)  In those instances where the ARD committee decides that the RCF is the appropriate educational placement consistent with the RCF’s preference and the ARD committee determines that the available space described by the RCF is adequate, the RCF is required to:

(A)  assure that the space described by the RCF prior to the ARD committee’s decision to place the student at the RCF will be provided; and

(B)  not charge LEAs any of the costs related to this space which include the costs incurred for the operation and maintenance of this space.

(9)  In those instances where the ARD committee decides that the RCF is the appropriate educational placement and the RCF has recommended a preference for not educating the student at the RCF and the ARD committee decides that the available space described by the RCF is adequate, the RCF is required to provide the described space. If the RCF seeks to charge a LEA for this space and these two entities cannot reach an amicable resolution of this matter, the dispute resolution procedures as provided in subsection (h) of this section must be used.

(10)  The requirements specified in subsection (e) of this section do not abrogate the responsibility of LEAs to provide the educational and related services set out in the individual educational plan (IEP). Nor do these requirements create a duty on RCFs to construct space if adequate space does not exist in the RCF for educating its residents.

(11)  To the extent authorized by existing federal and state law, the health and human services agencies agree to adopt policies and procedures to implement the requirements specified in subsection (e) of this section by September 1, 1996, to the extent possible, but no later than January 1, 1997.

(12)  The parties agree to coordinate their regulatory and planning functions with regard to the licensure, certification, and funding of RCF placements involving school-age residents with disabilities to further assure that adequate space will be available for educating those students who cannot be served on a school campus because of their non-educational needs.

(f)  Impact of residential care facilities (RCFs) on local education agencies (LEAs).

(1)  The parties acknowledge that LEAs are impacted in their ability to provide special education services when a new RCF opens up or expands which serves school-age residents. This impact may be substantial especially in situations where the LEA is small and located in a rural setting.

(2)  Given this acknowledgment, the parties agree to develop the following with regard to contracting, licensing, or certifying entities that seek to establish or expand RCFs which serve or plan to serve school-age residents:

(A)  State agency coordination. The parties agree to coordinate their regulatory and planning functions and collaborate on assessment, planning, and use of specialists to ensure that education and treatment resources are efficiently and effectively used to appropriately serve students with disabilities in supportive, integrated and least restrictive environments.

(B)  Notification to the local education agency (LEA). Any entity requesting to establish a new RCF or expand a RCF that serves or plans to serve school-age residents will be required to provide prior written notice to the affected LEA of their intent to establish or expand a RCF within the LEA’s boundaries. This notice must be given within a reasonable time period so that the LEA can plan accordingly. To the extent permissible under current law, the health and human services agencies agree to establish policies and procedures for this notification requirement by September 1, 1996, to the extent possible, but no later than January 1, 1997. The TEA agrees to assist the health and human service agencies in the development and implementation of the policies and procedures.

(g)  Parental participation.

(1)  The parties acknowledge that parental participation is essential for the determination and the provision of appropriate special education services under IDEA. However, many of the school-age residents placed in RCFs are under the conservatorship of the State of Texas (usually through TDPRS). For these residents, the parties acknowledge the following “surrogate parent” requirements:

(A)  The LEAs have the obligation to ensure that a properly trained surrogate parent with no conflicts of interest is appointed for these residents for whom:

(i)  no parent can be identified;

(ii)  the parent cannot be located after reasonable efforts by the LEA to locate; or

(iii)  are wards of the state (e.g., in Texas, the term “conservatorship” is often used to indicate a student is a ward of the state, pursuant to 34 CFR, §300.514(a)).

(B)  The LEAs decide as to when and whom to appoint as surrogate parents.

(C)  The appointment of a surrogate parent is not restricted to circumstances in which parental rights have been formally terminated by a court. In fact, the requirement to appoint a surrogate parent will be triggered by placing a child under the temporary or permanent conservatorship of the state.

(D)  The appointment of a surrogate parent does not necessarily terminate parental rights under IDEA. Unless parental rights have been terminated under the Texas Family Code, parents do not lose their rights to participate in the educational process of their children as the result of the appointment of a surrogate parent.

(E)  The obligation to appoint a surrogate parent is not necessarily eliminated when a student turns 18 years old. In some instances, a surrogate parent can be appointed for a student with a disability who is between 18 and 22 years old if needed to assure that this student receives FAPE.

(F)  The surrogate parent appointed must have the knowledge and skills to ensure adequate representation of the child and no personal or professional interest which would create a conflict of interest in his or her representation of the child, pursuant to 34 CFR, §300.514(c).

(G)  Pursuant to 34 CFR, §300.514(c), a person assigned as a surrogate parent may not be an employee of a public agency that is involved in the education or care of the child. Thus, public (state, county, or local) employees, like caseworkers or probation officers, would be ineligible to serve as surrogate parents.

(H)  Directors and employees of private RCFs generally cannot serve as surrogate parents because of a conflict of interest.

(I)  Pursuant to 34 CFR, §300.514(e), surrogate parents may represent the child in all matters relating to:

(i)  the identification, evaluation, and educational placement of the child; and

(ii)  the provision of FAPE to the child.

(2)  The TEA assures that in those cases where a surrogate parent is appointed, state caseworkers and the appropriate RCF personnel will be given an opportunity to discuss the student’s educational needs with the surrogate parent prior to ARD committee meetings, or at a mutually agreeable time. The TEA further assures that the caseworker representing the state agency having conservatorship of the student and the appropriate RCF representative may participate in the deliberations of the ARD committee, but in no circumstance in place of the required surrogate parent or make the decisions belonging to the surrogate parent.

(h)  Dispute resolution.

(1)  Intra-agency disputes. Intra-agency disputes concerning the implementation of the MOU shall be resolved in accordance with that agency’s established policies and procedures.

(2)  Inter-agency disputes.

(A)  Disputes concerning implementation of this MOU between either agencies that are parties to the MOU or a local education agency and a party to this MOU, should first be resolved at the local level. The specific issues involved in the dispute and possible solutions shall be identified and referred to the local officials authorized to make the decisions necessary to resolve the dispute.

(B)  If local resolution is not possible after a reasonable time period, the inter-agency dispute should be referred to the executive officers of the respective state agencies for further negotiations towards a mutually agreeable resolution. Local agencies submitting to the state agency level shall identify the:

(i)  nature of the dispute;

(ii)  resolutions agreed upon at the local level;

(iii)  issues that remain unresolved at the local level; and

(iv)  local contact person(s).

(C)  The appropriate state officials shall meet to seek resolution of the dispute.

(D)  If resolution is not possible at the state level, the executive officers may pursue resolution through the use of mediation or refer the local parties to mediation. As defined in the Texas Civil Practices & Remedies Code, §154.023, “mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.” The parties should mutually agree on an impartial third party to serve as the mediator, as well as the procedures for conducting the mediation. The mediation shall be non-binding unless the parties agree otherwise.

(i)  Contact persons. The following are the contact persons for the respective parties to whom questions or concerns may be directed with regard to this MOU and its implementation.

(1)  Texas Education Agency (TEA), director of interagency coordination, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9283.

(2)  Texas Department of Human Services (TDHS), assistant deputy commissioner for long term care, 701 West 51st Street, Austin, Texas 78751, (512) 438-3011.

(3)  Texas Department of Mental Health and Mental Retardation (TDMHMR), Managed Care Division Children Services, P. O. Box 12668, Austin, Texas 78711, (512) 206-4830.

(4)  Texas Department of Health (TDH), director, Children’s Health Division, Bureau of Women and Children, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 458-7355, extension 3104.

(5)  Texas Department of Protective and Regulatory Services (TDPRS), staff attorney for programs, 701 West 51st Street, Austin, Texas 78751, (512) 438-3803.

(6)  Texas Interagency Council on Early Childhood Intervention (ECI), deputy director, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 502-4900.

(7)  Texas Commission on Alcohol and Drug Abuse (TCADA), general counsel, 9001 North IH-35, Suite 105, Austin, Texas 78753-5233, (512) 349-6615.

(8)  Texas Juvenile Probation Commission (TJPC), general counsel, P.O. Box 13547, Austin, Texas 78711, (512) 443-2001.

(9)  Texas Youth Commission (TYC), chief of community placement, P.O. Box 4260, Austin, Texas 78751, (512) 483-5093.

(j)  Other terms.

(1)  This MOU shall be signed by the executive officers of the participating agencies and shall be effective upon signature by all.

(2)  This MOU shall be adopted by rule prior to January 1, 1997.

(3)  This MOU may be considered for expansion, modification, or amendment upon mutual agreement of the executive officers of the participating agencies.

(4)  In the event that federal and/or state laws should be amended, federally interpreted, or judicially interpreted so as to render continued implementation of this MOU unreasonable or impossible, the participating agencies may agree to amend or terminate this MOU.

Source: The provisions of this §89.1115 adopted to be effective February 19, 1997, 22 TexReg 1629.

Division 4. Special Education Funding

§89.1121. Distribution of State Funds.

(a)  Procedures for counting the average daily attendance (ADA) of students receiving special education services in various instructional settings shall be developed by the commissioner of education and included in the daily register for pupil attendance accounting.

(b)  State special education funds shall be distributed to school districts on the basis of ADA of full-time equivalents of eligible students served in accordance with §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes).

(c)  The special education attendance shall be converted to contact hours by instructional arrangement and then to full-time equivalents. The full-time equivalent for each instructional arrangement is multiplied by the school district's adjusted basic allotment and then multiplied by the weight for the instructional arrangement as prescribed in the Texas Education Code (TEC), §42.151(a). Contact hours for any one student receiving special education services may not exceed six hours per day or 30 hours per week for funding purposes. The total contact hours generated per week shall be divided by 30 to determine the full-time equivalents. Special education full-time equivalents generated shall be deducted from the school district's ADA for purposes of the regular education allotment.

(d)  The receipt of special education funds shall be contingent upon the operation of an approved comprehensive special education program in accordance with state and federal laws and regulations. No district may divert special education funds for other purposes, with the exception of administrative costs as defined in Chapter 105, Subchapter B, of this title (relating to Maximum Indirect Cost Allowable on Certain Foundation School Program Allotments). Funds generated by full-time equivalents in one instructional arrangement may be spent on the overall special education program and are not limited to the instructional arrangement which generated the funds. The district must maintain separate accountability for the total state special education program fund within the general fund.

(e)  A special education fund balance may be carried over to the next fiscal year but must be expended on the special education program in the subsequent year. State special education carryover funds cannot be used for administrative costs.

(f)  Students who are at least three, but younger than 22, years of age on September 1 of the current scholastic year who participate in the regional day school program for the deaf may be counted as part of the district's ADA if they receive instruction from the basic program for at least 50% of the school day.

(g)  Students from birth through age two with a visual or auditory impairment or both who are provided services by the district according to an individual family services plan (IFSP) shall be enrolled on the district home or regional day school campus and shall be considered eligible for ADA on the same basis as other students receiving special education services.

(h)  Funding for the mainstream special education instructional arrangement shall be based on the average daily attendance of the students in the arrangement multiplied by the adjusted basic allotment/adjusted allotment (ABA/AA) and the 1.1 weight. The attendance shall not be converted to contact hours/full-time equivalents as with the other instructional arrangements.

Source: The provisions of this §89.1121 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

§89.1125. Allowable Expenditures of State Special Education Funds.

(a)  Persons paid from special education funds shall be assigned to instructional or other duties in the special education program and/or to provide support services to the regular education program in order for students with disabilities to be included in the regular program. Support services shall include, but not be limited to, collaborative planning, co-teaching, small group instruction with special and regular education students, direct instruction to special education students, or other support services determined necessary by the admission, review, and dismissal (ARD) committee for an appropriate program for the student with disabilities. Assignments may include duties supportive to school operations equivalent to those assigned to regular education personnel.

(b)  Personnel assigned to provide support services to the regular education program as stated in subsection (a) of this section may be fully funded from special education funds.

(c)  If personnel are assigned to special education on less than a full-time basis, except as stated in subsection (a) of this section, only that portion of time for which the personnel are assigned to students with disabilities shall be paid from state special education funds.

(d)  State special education funds may be used for special materials, supplies, and equipment which are directly related to the development and implementation of individualized education programs (IEPs) of students and which are not ordinarily purchased for the regular classroom. Office and routine classroom supplies are not allowable. Special equipment may include instructional and assistive technology devices, audiovisual equipment, computers for instruction or assessment purposes, and assessment equipment only if used directly with students.

(e)  State special education funds may be used to contract with consultants to provide staff development, program planning and evaluation, instructional services, assessments, and related services to students with disabilities.

(f)  State special education funds may be used for transportation only to and from residential placements. Prior to using federal funds for transportation costs to and from a residential facility, a district must use state or local funds based on actual expenses up to the state transportation maximum for private transportation contracts.

(g)  State special education funds may be used to pay staff travel to perform services directly related to the education of eligible students with disabilities. Funds may also be used to pay travel of staff (including administrators, general education teachers, and special education teachers and service providers) to attend staff development meetings for the purpose of improving performance in assigned positions directly related to the education of eligible students with disabilities. In no event shall the purpose for attending such staff development meetings include time spent in performing functions relating to the operation of professional organizations. In accordance with 34 Code of Federal Regulations, §300.382(j), funds may also be used to pay for the joint training of parents and special education, related services, and general education personnel.

Source: The provisions of this §89.1125 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837.

Division 5. Special Education and Related Service Personnel

§89.1131. Qualifications of Special Education, Related Service, and Paraprofessional Personnel.

(a)  All special education and related service personnel shall be certified, endorsed, or licensed in the area or areas of assignment in accordance with 34 Code of Federal Regulations (CFR), §300.23 and §300.136; the Texas Education Code (TEC), §§21.002, 21.003, and 29.304; or appropriate state agency credentials.

(b)  A teacher who holds a special education certificate or an endorsement may be assigned to any level of a basic special education instructional program serving eligible students 3-21 years of age, as defined in §89.1035(a) of this title (relating to Age Ranges for Student Eligibility), in accordance with the limitation of their certification, except for the following.

(1)  Persons assigned to provide speech therapy instructional services must hold a valid Texas Education Agency (TEA) certificate in speech and hearing therapy or speech and language therapy, or a valid state license as a speech/language pathologist.

(2)  Teachers holding only a special education endorsement for early childhood education for children with disabilities shall be assigned only to programs serving infants through Grade 6.

(3)  Teachers assigned full-time to teaching students who are orthopedically impaired or other health impaired with the teaching station in the home or a hospital shall not be required to hold a special education certificate or endorsement as long as the personnel file contains an official transcript indicating that the teacher has completed a three-semester-hour survey course in the education of students with disabilities and three semester hours directly related to teaching students with physical impairments or other health impairments.

(4)  Teachers certified in the education of students with visual impairments must be available to students with visual impairments, including deaf-blindness, through one of the school district's instructional options, a shared services arrangement with other school districts, or an education service center (ESC). A teacher who is certified in the education of students with visual impairments must attend each admission, review, and dismissal (ARD) committee meeting or individualized family service plan (IFSP) meeting of a student with a visual impairment, including deaf-blindness.

(5)  Teachers certified in the education of students with auditory impairments must be available to students with auditory impairments, including deaf-blindness, through one of the school district's instructional options, a regional day school program for the deaf, a shared services arrangement with other school districts, or an ESC. A teacher who is certified in the education of students with auditory impairments must attend each ARD committee meeting or IFSP meeting of a student with an auditory impairment, including deaf-blindness.

(6)  The following provisions apply to physical education.

(A)  When the ARD committee has made the determination and the arrangements are specified in the student's individualized education program (IEP), physical education may be provided by the following personnel:

(i)  special education instructional or related service personnel who have the necessary skills and knowledge;

(ii)  physical education teachers;

(iii)  occupational therapists;

(iv)  physical therapists; or

(v)  occupational therapy assistants or physical therapy assistants working under supervision in accordance with the standards of their profession.

(B)  When these services are provided by special education personnel, the district must document that they have the necessary skills and knowledge. Documentation may include, but need not be limited to, inservice records, evidence of attendance at seminars or workshops, or transcripts of college courses.

(7)  Teachers assigned full-time or part-time to instruction of students from birth through age two with visual impairments, including deaf-blindness, shall be certified in the education of students with visual impairments. Teachers assigned full-time or part-time to instruction of students from birth through age two who are deaf, including deaf-blindness, shall be certified in education for students who are deaf and severely hard of hearing. Other certifications for serving these students shall require prior approval from TEA.

(8)  Teachers with secondary certification with the generic delivery system may be assigned to teach Grades 6-12 only.

(c)  Paraprofessional personnel must be certified and may be assigned to work with eligible students, general and special education teachers, and related service personnel. Aides may also be assigned to assist students with special education transportation, serve as a job coach, or serve in support of community-based instruction. Aides paid from state administrative funds may be assigned to the Special Education Resource System (SERS), the Special Education Management System (SEMS), or other special education clerical or administrative duties.

(d)  Interpreting services for students who are deaf shall be provided by an interpreter who is certified in the appropriate language mode(s), if certification in such mode(s) is available. If certification is available, the interpreter must be certified by the Registry of Interpreters for the Deaf or the Texas Commission for the Deaf and Hard of Hearing, unless the interpreter has been granted an emergency permit by the commissioner of education to provide interpreting services for students who are deaf. The commissioner shall consider applications for the issuance of an emergency permit to provide interpreting services for students who are deaf on a case-by-case basis in accordance with requirements set forth in 34 CFR, §300.136, and standards and procedures established by the TEA. In no event will an emergency permit allow an uncertified interpreter to provide interpreting services for more than a total of three school years to students who are deaf.

(e)  Orientation and mobility instruction must be provided by a certified orientation and mobility specialist (COMS) who is certified by the Academy for Certification of Vision Rehabilitation and Education Professionals.

Source: The provisions of this §89.1131 adopted to be effective September 1, 1996, 21 TexReg 7240, amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061.

Division 6. Regional Education Service Center Special Education Programs

§89.1141. Education Service Center Regional Special Education Leadership.

(a)  Each regional education service center (ESC) will provide leadership, training, and technical assistance in the area of special education for students with disabilities in accordance with the Texas Education Agency's (TEA) focus on increasing student achievement and Texas Education Code (TEC), §8.051(d)(2) and (5), and will assist TEA in the implementation of 34 Code of Federal Regulations (CFR) §300.382 and §300.555.

(b)  Each regional ESC will provide technical assistance, support, and training in the area of special education to school districts based on the results of a comprehensive needs assessment process. Each regional ESC will continue to serve as first point of contact for school districts, parents, and other community stakeholders, and will, in accordance with 34 CFR §300.382(j), provide for the joint training of parents and special education, related services, and general education personnel.

(c)  Regional ESC activities and responsibilities will be in accordance with current instructions, program guidelines, and program descriptions included in the ESC Performance Contract and Application, which will be made accessible to the public through the TEA website.

(d)  The ESC must utilize available TEA funding to implement activities and address needs identified under subsections (a)-(c) of this section. If additional funding is needed to implement supplementary or enhanced activities identified through the regional needs assessment process, ESCs may access and utilize alternate sources of funding. Any charges must be determined only after priorities have been established through input from affected school districts, including data collected from parents and communities through partnerships with school districts.

(e)  When an ESC provides leadership, training, and support pertaining to education and related services for students with visual impairments, directly or through contract, the personnel providing such services must be appropriately certified as identified in current program guidelines included in the ESC Performance Contract and Application, regardless of the fund source used to fund the service/personnel.

(f)  Regional ESCs may serve as fiscal agent for shared services arrangements in accordance with procedures established under §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures).

(g)  For the purposes of this subchapter, ESCs shall be considered to be educational service agencies as defined in federal regulations.

Source: The provisions of this §89.1141 adopted to be effective August 1, 2002, 27 TexReg 3061.

Division 7. Resolution of Disputes Between Parents and School Districts

§89.1150. General Provisions.

(a)  From time to time, disputes may arise between a parent and a school district relating to the identification, evaluation, or educational placement of or the provision of a free appropriate public education (FAPE), to a student with a disability.

(b)  It is the policy and intent of the Texas Education Agency (TEA) to encourage and support the resolution of any dispute described in subsection (a) of this section at the lowest level possible and in a prompt, efficient, and effective manner.

(c)  The possible options for resolving disputes include, but are not limited to:

(1)  meetings of the student's admission, review, and dismissal committee;

(2)  meetings or conferences with the student's teachers;

(3)  meetings or conferences, subject to local school district policies, with campus administrator(s), the special education director of the district (or the shared services arrangement to which the district may be a party), the superintendent of the district, or the board of trustees of the district;

(4)  requesting mediation through the TEA in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §1415(e), and 34 Code of Federal Regulations (CFR), §300.506;

(5)  filing a complaint with the TEA in accordance with 34 CFR, §§300.600-300.662; or

(6)  requesting a due process hearing through the TEA in accordance with IDEA, 20 USC, §1415(f), and 34 CFR, §§300.507-300.514. Upon the filing of a request for a due process hearing, the parent and the school district shall also be provided with an opportunity to resolve the dispute through the mediation process established by TEA.

Source: The provisions of this §89.1150 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1151. Due Process Hearings.

(a)  A parent or public education agency may initiate a due process hearing as provided in the Individuals with Disabilities Education Act (IDEA), Part B, as amended, 20 United States Code (USC), §§1401 et seq., and the applicable federal regulations, 34 Code of Federal Regulations (CFR), §§300.1 et seq.

(b)  The Texas Education (TEA) shall implement a one-tier system of due process hearings under the IDEA. The proceedings in due process hearings shall be governed by the provisions of 34 CFR, §§300.507-300.514, and 34 CFR, §300.528, if applicable, and §§89.1151, 89.1165, 89.1170, 89.1180, 89.1185 and 89.1191 of this subchapter.

(c)  Effective with requests for due process hearings filed on or after August 1, 2002, a parent or public education agency must request a due process hearing within one year of the date the complainant knew or should have known about the alleged action that serves as the basis for the hearing request.

Source: The provisions of this §89.1151 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective December 30, 2001, 26 TexReg 10536.

§89.1165. Request for Hearing.

(a)  A request for a due process hearing must be in writing and must be filed with the Texas Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701. The request for a due process hearing may be filed by mail, hand-delivery, or facsimile and shall be deemed filed only when actually received by the office responsible for legal services at the Texas Education Agency (TEA). The TEA has developed a model form which may be used by a parent to initiate a due process hearing. The form is available on request from TEA, all regional education service centers, and all school districts. The form is also available on TEA's website.

(b)  If the request for a due process hearing does not specify the issues to be heard and the relief requested, the hearing officer shall require the complaining party to supplement the request, orally or in writing, to clarify the issues to be heard at the hearing and the relief sought by the complaining party.

Source: The provisions of this §89.1165 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1170. Impartial Hearing Officer.

(a)  Each due process hearing shall be conducted by an impartial hearing officer selected by the Texas Education Agency (TEA).

(b)  The hearing officer has the authority to administer oaths; call and examine witnesses; rule on motions, including discovery and dispositive motions; determine admissibility of evidence and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires, including the application of sanctions as necessary to maintain an orderly hearing process.

(c)  If the hearing officer is removed, dies, becomes disabled, or withdraws from an appeal before the completion of duties, the TEA may designate a substitute hearing officer to complete the performance of duties without the necessity of repeating any previous proceedings.

Source: The provisions of this §89.1170 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1180. Prehearing Procedures.

(a)  Promptly upon being assigned to a hearing, the hearing officer will schedule a prehearing conference to be held at a time reasonably convenient to the parties to the hearing. The prehearing conference shall be held by telephone unless the hearing officer determines that circumstances require an in-person conference.

(b)  The hearing officer shall ensure that a written, or, at the option of either party, an electronic, verbatim record of the prehearing conference is made.

(c)  The purpose of the prehearing conference shall be to consider any of the following:

(1)  specifying and simplifying issues;

(2)  admitting certain assertions of fact or stipulations;

(3)  establishing any limitation of the number of witnesses and the time allotted for presenting each party's case; and/or

(4)  discussing other matters which may aid in simplifying the proceeding or disposing of matters in controversy, including settling matters in dispute.

(d)  Promptly upon the conclusion of the prehearing conference, the hearing officer will issue and deliver to the parties, or their legal representatives, a written prehearing order which identifies:

(1)  the time, place, and date of the hearing;

(2)  the issues to be resolved at the hearing;

(3)  the relief being sought at the hearing;

(4)  the deadline for disclosure of evidence and identification of witnesses, which must be at least five business days prior to the scheduled date of the hearing (hereinafter referred to as the "Disclosure Deadline");

(5)  the date by which the final decision of the hearing officer shall be issued; and

(6)  other information determined to be relevant by the hearing officer.

(e)  No pleadings, other than the request for hearing, are mandatory, unless ordered by the hearing officer. Any pleadings after the request for a due process hearing shall be filed with the hearing officer. Copies of all pleadings shall be sent to all parties of record in the hearing and to the hearing officer. If a party is represented by an attorney, all copies shall be sent to the attorney of record. Telephone facsimile copies may be substituted for copies sent by other means. An affirmative statement that a copy of the pleading has been sent to all parties and the hearing officer is sufficient to indicate compliance with this rule.

(f)  Discovery methods shall be limited to those specified in the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, and may be further limited by order of the hearing officer. Upon a party's request to the hearing officer, the hearing officer may issue subpoenas and commissions to take depositions under the APA. Subpoenas and commissions to take depositions shall be issued in the name of the Texas Education Agency.

(g)  On or before the Disclosure Deadline (which must be at least five business days prior to a scheduled due process hearing), each party must disclose and provide to all other parties and the hearing officer copies of all evidence (including, without limitation, all evaluations completed by that date and recommendations based on those evaluations) which the party intends to use at the hearing. An index of the documents disclosed must be included with and accompany the documents. Each party must also include with the documents disclosed a list of all witnesses (including their names, addresses, phone numbers, and professions) which the party anticipates calling to testify at the hearing.

(h)  A party may request a dismissal or nonsuit of a due process hearing to the same extent that a plaintiff may dismiss or nonsuit a case under Texas Rules of Civil Procedure, Rule 162. However, if a party requests a dismissal or nonsuit of a due process hearing after the Disclosure Deadline has passed and, at any time within one year thereafter requests a subsequent due process hearing involving the same or substantially similar issues as those alleged in the hearing which was dismissed or nonsuited, then, absent good cause or unless the parties agree otherwise, the Disclosure Deadline for the subsequent due process hearing shall be the same date as was established for the hearing that was dismissed or nonsuited.

Source: The provisions of this §89.1180 adopted to be effective March 6, 2001, 26 TexReg 1837.

§89.1185. Hearing.

(a)  The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than ten days, unless the parties agree otherwise.

(b)  Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved.

(c)  All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone.

(d)  Except as modified or limited by the provisions of 34 Code of Federal Regulations (CFR), §§300.507-300.514, 300.521, or 300.528, or the provisions of §§89.1151-89.1191 of this subchapter, the Texas Rules of Civil Procedure shall govern the proceedings at the hearing and the Texas Rules of Evidence shall govern evidentiary issues.

(e)  Before a document may be offered or admitted into evidence, the document must be identified as an exhibit of the party offering the document. All pages within the exhibit must be numbered, and all personally identifiable information must be redacted from the exhibit.

(f)  The hearing officer may set reasonable time limits for presenting evidence at the hearing.

(g)  Upon request, the hearing officer, at his or her discretion, may permit testimony to be received by telephone.

(h)  Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion.

(i)  Hearings conducted under this subchapter shall be closed to the public, unless the parent requests that the hearing be open.

(j)  The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to each of the parties. The hearing officer shall instruct the reporter to delete all personally identifiable information from the transcription of the hearing.

(k)  Filing of post-hearing briefs shall be permitted only upon order of the hearing officer and only upon a finding by the hearing officer that the legal issues involved in the hearing are novel or unsettled in the State of Texas or the Fifth Circuit. Any post-hearing briefs permitted by the hearing officer shall be limited to the legal issues specified by the hearing officer.

(l)  The hearing officer shall issue a final decision, signed and dated, no later than 45 days after a request for hearing is received by the Texas Education Agency, unless the deadline for a final decision has been extended by the hearing officer as provided in subsection (o) of this section. A final decision must be in writing and must include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence presented at the hearing. The final decision shall be mailed to each party by the hearing officer. The hearing officer, at his or her discretion, may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision.

(m)  At the request of either party, the hearing officer shall include, in the final decision, specific findings of fact regarding the following issues:

(1)  whether the parent or the school district unreasonably protracted the final resolution of the issues in controversy in the hearing; and

(2)  if the parent was represented by an attorney, whether the parent's attorney provided the school district the appropriate information in the due process complaint in accordance with 34 CFR, §300.507(c).

(n)  In making a finding regarding the issue described in subsection (m)(1) of this section, the hearing officer shall consider the extent to which each party had notice of, or the opportunity to resolve, the issues presented at the due process hearing prior to the date on which the due process hearing was requested. If, after the date on which a request for a due process hearing is filed, either the parent or the school district requests that a meeting of the admission, review, and dismissal (ARD) committee of the student who is the subject of the due process hearing be convened to discuss the issues raised in the request for a due process hearing, the hearing officer shall also consider the extent to which each party participated in the ARD committee meeting in a good faith attempt to resolve the issue(s) in dispute prior to proceeding to a due process hearing.

(o)  A hearing officer may grant extensions of time for good cause beyond the 45-day period specified in subsection (l) of this section at the request of either party. Any such extension shall be granted to a specific date and shall be stated in writing by the hearing officer to each of the parties.

(p)  The decision issued by the hearing officer is final, except that any party aggrieved by the findings and decision made by the hearing officer, or the performance thereof by any other party, may bring a civil action with respect to the issues presented at the due process hearing in any state court of competent jurisdiction or in a district court of the United States, as provided in 20 United States Code (USC), §1415(i)(2), and 34 CFR, §300.512. Effective with hearing officer decisions issued on or after August 1, 2002, a civil action brought in a court of competent jurisdiction under 20 USC, §1415(i)(2), and 34 CFR, §300.512, must be initiated no more than 90 days after the date the hearing officer issued his or her written decision in the due process hearing.

(q)  In accordance with 34 CFR, §300.514(c), a school district shall implement any decision of the hearing officer that is, at least in part, adverse to the school district in a timely manner within ten school days after the date the decision was rendered. School districts must provide services ordered by the hearing officer, but may withhold reimbursement during the pendency of appeals.

Source: The provisions of this §89.1185 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective December 30, 2001, 26 TexReg 10536.

§89.1191. Special Rule for Expedited Due Process Hearings.

An expedited due process hearing requested by a party under 34 Code of Federal Regulations (CFR), §300.528, shall be governed by the same rules as are applicable to due process hearings generally, except that the final decision of the hearing officer must be issued and mailed to each of the parties no later than 45 days after the date the request for the expedited hearing is received by the Texas Education Agency, without exceptions or extensions.

Source: The provisions of this §89.1191 adopted to be effective March 6, 2001, 26 TexReg 1837.