| Action Required |
August 31, 2001
TO THE ADMINISTRATOR ADDRESSED:
SUBJECT: Special Education Requirements and the 77th Legislative
Session:
Use of Seclusion and Transfer of Parental Rights at Age of Majority
The purpose of this letter is to notify local education agencies (LEAs) of special education requirements resulting from the 77th Legislative Session. Legislative activity has resulted in required actions related to the use of confinement, restraint, seclusion, and time-out by school districts and charter schools and the transfer of parental rights at age of majority for students served by special education programs. This letter provides specific information related to the implementation of these requirements by LEAs.
Use of Confinement, Restraint, Seclusion, and Time-Out
Senate Bill 1196, enacted by the 77th Texas Legislature, establishes requirements for students enrolled in special education programs related to the use of confinement, restraint, seclusion, and time-out. These requirements are established in Section 37.0021 of the Texas Education Code (TEC) and are made applicable to charter schools through an amendment to subsection (b) of TEC Section 12.104. The enrolled version of Senate Bill 1196 is enclosed with this letter.
Effective September 1, 2001, a student with disabilities may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique. Senate Bill 1196 also specifies that a LEA employee or volunteer or an independent contractor of a LEA may not place a student in seclusion, which is defined as a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that is designed solely to seclude a person and contains less than 50 square feet of space. However, an exception to requirements related to the use of seclusion applies to certain facilities that provide residential and other care and treatment services to students with disabilities. Care facilities that continue to use confinement and seclusion as a discipline management technique as part of an educational program for students with disabilities under the Individuals with Disabilities Education Act (IDEA) or TEC, Chapter 29, Subchapter A, must document that they meet an exception requirement as specified in Senate Bill 1196. Additionally, TEC Section 37.0021(f) clarifies that the new requirements under the law do not prevent a student's locked unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel if the student possesses a weapon as defined under TEC Section 37.007(a)(1) and the confinement is necessary to prevent the student from causing bodily harm to the student or another person.
The elimination of confinement and seclusion as a discipline management practice or behavior management technique requires immediate action on the part of LEAs. The implementation of this law will require all LEAs to review the individualized education programs (IEPs) and behavior intervention plans (BIPs) of students with disabilities to determine whether confinement or seclusion is included as a discipline management practice or a behavior management technique. Any IEPs or BIPs that do contain confinement or seclusion will require the immediate action of the admission, review, and dismissal (ARD) committee to determine and document alternatives to the use of this technique or practice.
In an effort to address training needs related to the implementation of alternative discipline management practices and behavior management techniques, the Region IV Education Service Center (ESC) will facilitate the development of training to support district and campus level implementation of Senate Bill 1196. Initial training on alternatives to the use of confinement and seclusion was provided in August 2001 to ESC staff that serve as representatives to the statewide behavior/discipline management network. Network representatives from the 20 ESCs will offer regional training in September and October 2001. LEA teams are encouraged to participate in these phase one training efforts in order to establish a basic framework for implementing the changes required by law.
Senate Bill 1196 requires that commissioner's rules be adopted no later than August 1, 2002, for school districts and charter schools related to the use of restraint and time-out for students with disabilities. Section 37.0021 of the TEC now defines restraint as "the use of physical force or a mechanical device to restrict the free movement of all or a portion of a student's body" and time-out as "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 that is not locked and from which the student is not physically prevented from leaving." Senate Bill 1196 further notes that, in relation to students served by special education programs, until commissioner's rules are adopted, the use of restraint and time-out by a LEA employee, volunteer, or independent contractor will be governed by LEA policy.
Rules regarding the use of restraint and time-out for students receiving special education services will be developed with the input of stakeholders. Development of the required rules will take place during the 2001-2002 school year and will become effective not later than August 1, 2002. The Region IV ESC will support phase two training efforts related to the statewide implementation of rules developed related to the procedures for use of restraint and time-out by public schools. Regional level training will occur in September and October 2002, and additional information related to the implementation of Senate Bill 1196 will be forthcoming through the ESCs.
Transfer of Parental Rights at Age of Majority
Senate Bill 1735, enacted by the 77th Texas Legislature, added a new section to and amended a second section of the Texas Education Code, and amended one section of the Texas Family Code in an attempt to clarify the law in Texas regarding the issue of whether rights granted to parents under the Individuals with Disabilities Education Act, Part B (IDEA-B), transfer to the parents' child when the child reaches the age of majority. Specifically, effective September 1, 2001, a student who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Chapter 31, Family Code, will have the same right to make educational decisions as a student without a disability, except that the LEA must continue to provide any notice required under the IDEA-B or TEC, Chapter 29, Subchapter A, to both the student and the parents. All other rights under the IDEA-B or TEC, Chapter 29, Subchapter A, transfer to the student. All requirements set forth regarding transfer of parental rights at the age of majority are made applicable to charter schools through TEC Section 12.104(b)(2)(F).
However, there are circumstances in which exceptions to this general rule exist. In the case of a student incarcerated in an adult or juvenile, state or local correctional institution, an incarcerated student who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Chapter 31, Family Code, will have all educational rights, including the right to notice, transferred to the student. Specifically, the adult, incarcerated student will have the same right to make educational decisions as a student without a disability, and the LEA no longer is required to provide any notice required under the IDEA-B or TEC, Chapter 29, Subchapter A, to the parents of the adult, incarcerated student.
Additionally, Senate Bill 1735 requires that commissioner's rules be adopted implementing the provisions of 34 Code of Federal Regulations (CFR) Section 300.517(b). Specifically, 34 CFR Section 300.517(b) states:
Special rule. If, under State law, a State has a mechanism to determine that a student with a disability, who has reached the age of majority under State law that applies to all children and has not been determined incompetent under State law, does not have the ability to provide informed consent with respect to his or her educational program, the State shall establish procedures for appointing the parent, or, if the parent is not available another appropriate individual, to represent the educational interests of the student throughout the student's eligibility under Part B of the Act.
Development of these required rules will take place during the 2001-2002 school year and will become effective not later than August 1, 2002. However, pending the adoption of those rules, it is the Agency's interpretation that parental rights will transfer at the age of majority, or when the disabilities of minority are removed, as specified above unless the ARD committee of the parent's child (now the adult student) has determined that the transfer of parental rights to the adult student would prevent that adult student from receiving a free appropriate public education (FAPE) under the IDEA-B. For adult students with disabilities who are incarcerated in adult or juvenile, state or local correctional institutions, all parental rights, including notice rights, transfer to the adult student when he/she reaches the age of majority or has the disabilities of minority removed unless the adult student's ARD committee has determined that the transfer of parental rights to such adult student would prevent that adult student from receiving FAPE under the IDEA-B.
In situations in which parental rights do not transfer to an adult student, the adult student's ARD committee should document, in the student's IEP, that the committee has determined that the transfer of parental rights to the adult student would prevent the adult student from receiving FAPE.
The provisions of 34 CFR Section 300.347(c) require that, beginning at least one year before a student reaches the age of 18, the student's IEP must include a statement that the student has been informed that parental rights under the IDEA-B, other than the right to notice for a student who is not incarcerated, will transfer to the student when the student reaches the age of 18.
School districts are advised that, effective September 1, 2001, parental rights will begin to transfer to adult students under the guidelines described above without any necessary action by a student's ARD committee. However, ARD committee action is required under circumstances in which the ARD committee will consider whether a transfer of rights would prevent the provision of FAPE.
For students with disabilities who already are 18 as of September 1, 2001, LEAs must, in accordance with 34 CFR Section 300.517(a)(3), provide written notice to each adult student and his/her parents of the transfer of rights as of September 1, 2001. This notice must inform the adult student and his/her parents of the rights that have been transferred under the IDEA-B. The notice also must provide the adult student and his/her parents with the opportunity to request an ARD committee meeting to discuss whether the transfer of rights to the adult student would prevent the adult student from receiving FAPE.
For students who are 17 on September 1, 2001, or who will turn 17 during the 2001-2002 school year but who are not scheduled to have an ARD committee meeting until after the date on which they turn 17, school districts also are required, in accordance with 34 CFR Section 300.517(a)(3), to provide written notice to each such student and his/her parents that parental rights will transfer to the student when he/she reaches the age of 18. Again, this notice must inform the student and his/her parents of the rights that will transfer to the student under IDEA-B when he/she turns 18. The notice also must provide the student and his/her parents with the opportunity to request an ARD committee meeting to discuss whether the transfer of rights to the student would prevent the student from receiving FAPE.
We appreciate your attention to these matters and your ongoing support of students with disabilities. Should you have additional questions regarding these issues, please contact your regional ESC or the Division of Special Education at (512) 463-9414.
Sincerely yours,
Jim Nelson
Commissioner of Education
For further information on this topic, contact your regional ESC or the Division of Special Education at (512) 463-9414.