February 14, 2001
TO THE ADMINISTRATOR ADDRESSED:
SUBJECT: INSTRUCTIONAL ARRANGEMENT CODING
The purpose of this letter is to provide
information related to instructional arrangement coding for students
with disabilities who reside in residential care and treatment
facilities. Specifically, this letter is an effort by the
Texas Education Agency to provide clarification for local education
agencies (LEAs) in relation to coding determinations for children
with disabilities residing in residential care and treatment
facilities and receiving special education services through affected
LEAs. The guidance presented in this letter is reflective of
discussions among Agency, district, and charter school personnel in
a stakeholder meeting conducted by the Division of Special
Education, Texas Education Agency. Stakeholder meetings,
related discussions, and correspondence related to this issue have
been necessitated as a result of ongoing concerns related to the
appropriate coding of students with disabilities who reside in
residential care and treatment facilities and who receive their
special education and other educational services on the site of the
facility.
The
Agency, through this letter, will discuss related laws, rules, and
regulations, and will provide guidance and interim policy
clarification related to the topic. These policy
clarifications are intended to assist school administrators with
interpretations based on current law, rule, and practice.
Please note, however, that, if the Texas Legislature or the State
Board of Education (SBOE) reconsider the statutes or rules that
define related special education instructional arrangements or
settings, or if additional interpretive guidance is provided by the
Legislature or SBOE, the Agency’s interpretive guidance provided
in this letter may be superseded.
Texas
Education Code (TEC) §25.001(b)(7) states:
The
board of trustees of a school district or its designee shall admit
into the public schools of the district free of tuition a person who
is over five and younger than 21 years of age on the first day of
September of the school year in which admission is sought if…the
person resides at a residential facility located in the district…
TEC §42.151(b)
states:
A
special instructional arrangement for students with disabilities
residing in care and treatment facilities, other than state schools,
whose parents or guardians do not reside in the district providing
education services shall be established under the rules of the State
Board of Education. The funding weight for this arrangement
shall be 4.0 for those students who receive their education service
on a local school district campus (emphasis added).
Currently,
SBOE rule, as reflected in Texas Administrative Code (TAC) §89.63(c)(10),
defines the Residential Care and Treatment Facility-Code 35
instructional arrangement as follows:
Residential
care and treatment facility (not school district resident).
This instructional arrangement/setting is for providing special
education instruction and related services to students who reside in
care and treatment facilities and whose parents do not reside within
the boundaries of the school district providing educational services
to the students. In order to be considered in this
arrangement, the services must be
In
contrast, TAC §89.63(c)(3) defines the Hospital Class-Code 02
instructional arrangement as follows:
Hospital
class. This instructional arrangement/setting is for providing
special education instruction in a classroom in a hospital facility
or a residential care and treatment facility not operated by the
school district. If the students residing in the facility are
provided special education services outside the facility, they are
considered to be served in the instructional arrangement in which
they are placed and are not to be considered as in a hospital class.
The
Student Attendance Accounting Handbook provides additional
information and clarification related to the definitions of the
instructional arrangement/setting codes referenced in SBOE rule.
This handbook again emphasizes that, for a student to be coded to
the Residential Care and Treatment Facility instructional
arrangement, the services must be provided on a school district
campus rather than in a classroom at the facility.
In the
past, the Agency has interpreted the school campus requirement to
mean that, for students to be considered in the Residential Care and
Treatment Facility instructional arrangement, they must receive
services on a campus that is separate and apart from the residential
care facility. Therefore, as a general matter, students were
allowed to be coded to the Residential Care and Treatment Facility
instructional arrangement only if educational services were provided
at a recognized campus with both a physical location and a complete,
on-site administrative structure that was separate from the
residential treatment facility. Thus, if a school provided
services in classrooms located within the residential facility,
students served in that instructional arrangement would not qualify
under the Residential Care and Treatment Facility instructional
arrangement. Rather, these students generally would have been
coded to the Hospital Class arrangement.
Additional
concerns regarding coding interpretations arose in relation to
school districts and charter schools with instructional facilities
or campuses located at the site of a residential care and treatment
facility. In these situations, a separate facility may have
been established reflecting a campus number, and a complete
administrative structure and instructional curriculum may have been
developed. This often was the case with new charter schools
approved to provide educational services to these facilities.
Also,
the Individuals with Disabilities Education Act Amendments of 1997
instituted additional regulatory requirements in relation to least
restrictive environment (LRE) and state funding systems for special
education. In regard to LRE, 34 Code of Federal Regulations (CFR)
§300.130 (b) states:
Additional
requirement. (1) If the State uses a funding mechanism by which the
State distributes State funds on the basis of the type of setting
where a child is served, the funding mechanism may not result in
placements that violate the requirements of paragraph (a) of this
section [related to the requirement that children be placed in the
least restrictive environment].
Given
the aforementioned issues, in an attempt to determine whether state
rules and LEA practices promoted potential LRE concerns related to
the student population in question, the Division of Special
Education conducted a survey related to educational placement
patterns of students with disabilities residing in residential care
and treatment facilities. In February 2000, this survey was
disseminated to those LEAs reporting the use of the instructional
arrangements Residential Care and Treatment Facility or Hospital
Class. The results of this survey indicate that approximately
76% of students residing in residential care and treatment
facilities are served on a regular local campus, which was defined
for the purposes of the survey as a campus serving the regular
student population, operated by the local school district, that
exists notwithstanding the presence of the residential care and
treatment facility within the school district’s boundaries.
The survey indicated that approximately 16% of the students residing
in residential care and treatment facilities were served at the
residential care and treatment facility, which was defined as in a
classroom within the facility, a portable building at the facility,
a campus constructed on the facility site, or in space leased at the
facility. The remaining 8% of students were served on a
separate campus, defined as a local district campus not on the site
of the residential care and treatment facility, established to serve
a population of students with disabilities rather than the regular
student population.
In
dealing with placement issues related to students residing in
residential care and treatment facilities, the Agency acknowledges
that, in many circumstances, students with and without disabilities
are placed by parents or other agencies for residence purposes at a
residential care and treatment facility. Receiving LEAs
generally have no control over this initial placement of students at
these facilities and their resulting residency in the district or
charter school. The current discussion regarding placement of
these students will center around the resulting educational
placement of students with disabilities by the Admission, Review,
and Dismissal (ARD) committee.
ARD
committees are charged with many tasks in developing a program for a
student with a disability, including the development of an
individualized education program (IEP) designed to ensure the
provision of a free, appropriate public education in the least
restrictive environment. Accompanying this IEP development
process is the responsibility for determining the appropriate
instructional arrangement in which services will be provided.
In the case of some students with disabilities residing in
residential care and treatment facilities, the ARD committee is
limited in its ability to control the location in which services can
be provided. This is true in circumstances such as adjudicated
or incarcerated youth or students with substance abuse treatment
plans that preclude their inclusion in and exposure to educational
settings on a regular school campus.
Given
the background requirements stated above related to least
restrictive environment and funding systems and the obligation of
the ARD committee to make appropriate placement determinations for
students with disabilities, the following clarification is provided
in relation to coding students with disabilities residing in
residential care and treatment facilities and receiving special
education services from impacted LEAs.
|
ARD Control Over Location of Services* |
Parents Reside within LEA Boundaries |
Students Served at
Local LEA Campus** |
Appropriate
Instructional Arrangement Code |
|
Yes |
No |
Yes |
35 |
|
Yes |
No |
No |
02 |
|
Yes |
Yes |
Yes |
Based on services |
|
Yes |
Yes |
No |
02 |
|
No |
No |
N/A |
35 |
|
No |
Yes |
N/A |
02 |
See Attachment A for related decision tree
*An ARD
committee controls location of services except in situations
involving adjudicated or incarcerated youth, students with substance
abuse treatment plans that preclude their inclusion in and exposure
to educational settings on a regular school campus, or other
circumstances in which legal, medical, or governmental authorities
document the inability of the student to leave the facility site.
**Local
LEA campus indicates a county/district/campus number is assigned, a
complete administrative structure and
instructional program is in place, and the location of instructional
services is separate from the location of residential and treatment
services.
Note: Students with disabilities residing in a
residential care and treatment facility who receive only speech
therapy
services may not be coded with the instructional arrangement code
35.
LEAs
that code students with disabilities to the Residential Care and
Treatment Facility-Code 35 instructional arrangement must be able to
demonstrate that the LEA is, to the extent appropriate, in full
compliance with all LRE requirements found in 34 CFR §§
300.550-554.
Given
the above stated information, if a LEA believes that there are
special circumstances that may present reasons to code a student
differently than has been described in the previous charts and
paragraphs, a written request for consideration of such
circumstances may be directed to the Division of Special Education.
Again,
it must be noted that the Texas Administrative Code related to
instructional arrangements is subject to revision if the Texas
Legislature or SBOE reconsider the statutes or rules that define
special education instructional arrangements. Any revision
could impact the current definitions and interpretations provided in
this letter of clarification. School administrators should
carefully monitor this situation to determine whether future changes
may impact the current coding mechanism for students residing in
residential care and treatment facilities.
We appreciate your support of students with
disabilities. If you have additional questions related to
instructional arrangement coding, please contact your education
service center special education contact. If you need
additional assistance, you may contact Laura Taylor or a member of
the funding component in the Division of Special Education at (512)
463-9362.
Sincerely,
Nora Ibañez Hancock, Ed.D.
Associate Commissioner
NIH:LT:drc
cc:
ESC Special Education Administrators
LEA Special Education Administrators
For further information on this topic, contact Laura Taylor or a member of the funding component in the Division of Special Education at (512) 463-9362.