(a) Residential placement. A school district may contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE).
  (1) A school district may contract for a residential placement of a student only with either public or private residential facilities that maintain current and valid licensure by the Texas Department of Aging and Disability Services, Texas Department of Family and Protective Services, or Department of State Health Services for the particular disabling condition and age of the student. A school district may contract for an out-of-state residential placement in accordance with the provisions of subsection (d)(3) of this section.
  (2) Subject to subsections (c) and (d) of this section, the district may contract with a residential facility to provide some or all of the special education services listed in the contracted student's individualized education program (IEP). If the facility provides any educational services listed in the student's IEP, the facility's education program must be approved by the commissioner of education in accordance with subsection (d) of this section.
  (3) A school district that intends to contract for residential placement of a student with a residential facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential application process described in subsection (c) of this section.
  (4) The school district has the following responsibilities when making a residential placement.
    (A) Before the school district places a student with a disability in, or refers a student to, a residential facility, the district shall initiate and conduct a meeting of the student's ARD committee to develop an IEP for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner rules.
    (B) For each student, the services that the school district is unable to provide and that the facility will provide shall be listed in the student's IEP.
    (C) For each student, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school district.
    (D) The appropriateness of the facility for each student residentially placed shall be documented in the IEP. General screening by a regional education service center is not sufficient to meet the requirements of this subsection.
    (E) The school district shall make one announced initial visit and two subsequent onsite visits annually, one announced and one unannounced, to verify that the residential facility can and will provide the services listed in the student's IEP that the facility has agreed to provide to the student.
    (F) For each student placed in a residential facility (both initial and continuing placements), the school district shall verify, during the initial residential placement ARD committee meeting and each subsequent annual ARD committee meeting, that:
      (i) the facility meets minimum standards for health and safety;
      (ii) residential placement is needed and is documented in the IEP; and
      (iii) the educational program provided at the residential facility is appropriate and the placement is the least restrictive environment for the student.
    (G) The placement of more than one student in the same residential facility may be considered in the same onsite visit to a facility; however, the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.
    (H) When a student who is residentially placed by a school district changes his or her residence to another Texas school district and the student continues in the contracted placement, the school district that negotiated the contract shall be responsible for the residential contract for the remainder of the school year.
(b) Notification. Within 30 calendar days from an ARD committee's decision to place a student in a residential education program, a school district must electronically submit to the Texas Education Agency (TEA) notice of and information regarding the placement in accordance with submission procedures specified by TEA.
  (1) If the residential education program is on the commissioner's list of approved residential education programs, TEA will review the student's IEP and placement as required by 34 CFR, §300.120, and, in the case of a placement in or referral to a private school or facility, 34 CFR, §300.146. After review, TEA will notify the school district whether federal or state funds for the residential education program placement are approved. If TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.
  (2) If the residential education program is not on the commissioner's list of approved residential education programs, TEA will begin the approval procedures described in subsection (d)(1) of this section. School districts must ensure there is no delay in implementing a child's IEP in accordance with 34 CFR, §300.103(c).
  (3) If a residential education program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify TEA of the order within 30 calendar days. The residential education program serving the student is not required to go through the approval procedures described in subsection (d)(1) of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the residential education program, the residential education program will be required to go through the approval procedures to be included on the commissioner's list of approved residential programs.
(c) Application approval process. Requests for approval of state and federal funding for residentially placed students shall be negotiated on an individual student basis through a residential application submitted by the school district to TEA.
  (1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:
    (A) placement is due primarily to the student's medical problems;
    (B) placement is due primarily to problems in the student's home;
    (C) district does not have a plan, including timelines and criteria, for the student's return to the local school program;
    (D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);
    (E) placement is not cost effective when compared with other alternative placements; or
    (F) residential facility provides unfundable or unapprovable services.
  (2) The residential placement, if approved by TEA, shall be funded as follows:
    (A) the education cost of residential contracts shall be funded with state funds on the same basis as nonpublic day school contract costs according to Texas Education Code, §42.151;
    (B) related services and residential costs for residential contract students shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B, (IDEA-B) formula tentative entitlement (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the residential placement, the district through the residential application process may receive additional IDEA-B discretionary funds to pay the balance of the residential contract placement(s) costs; and
    (C) funds generated by the formula for residential costs described in subparagraph (B) of this paragraph shall not exceed the daily rate recommended by the Texas Department of Family and Protective Services for the specific level of care in which the student is placed.
(d) Approval of the education program for facilities that provide educational services. Residential facilities that provide educational services must have their educational programs approved for contracting purposes by the commissioner.
  (1) If the education program of a residential facility that is not approved by the commissioner is being considered for a residential placement by a local school district, the school district should notify TEA in writing of its intent to place a student at the facility. TEA shall begin approval procedures and conduct an onsite visit to the facility within 30 calendar days after TEA has been notified by the local school district. Approval of the education program of a residential facility may be for one, two, or three years.
  (2) The commissioner shall renew approvals and issue new approvals only for those facilities that have contract students already placed or that have a pending request for residential placement from a school district. This approval does not apply to residential facilities that only provide related services or residential facilities in which the local accredited school district where the facility is located provides the educational program.
  (3) School districts that contract for out-of-state residential placement shall do so in accordance with the rules for in-state residential placement in this section, except that the facility must be approved by the appropriate agency in the state in which the facility is located rather than by TEA.

Source Note: The provisions of this §89.1092 adopted to be effective March 14, 2021, 46 TexReg 1466