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Before completing this class, I was unaware of the intricacies of law relating to education. Additionally, I did not realize how much I needed to know about the laws pertaining to education and its value to my role as a community college guidance counselor; therefore, developing a thorough understanding of educational law is critical to my commitment of supporting students. Educators working with students with disabilities are my audience for my topic of law relating to students with disabilities in education. I chose this topic because disability law protected my rights as a student with a disability and provided me the opportunity to achieve a master's degree level of education.

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Jason Constein
Director of DSPS
Mt. San Jacinto Community College
Disability education law is essential in a community college because the number of students enrolling for services has increased and will continue to increase as time goes on. The Director of Disability Services and Programs anticipates a spike in enrollments in their program due to the rise of mental health challenges students are currently facing. Mental health has been the fast-growing disability category for their program over the past few years. One of his department's biggest challenges is adjusting its accommodations to suit the online course environment. For example, most online courses before COVID-19 were asynchronous; however, now, many teachers are offering real-time online courses with a live lecture. The students in need of a notetaker for lecture notes are not receiving their accommodation because the DSPS department has not developed a way for students to receive notes in an online lecture environment. Instructors also experience frustration with students' accommodations and requests for additional modification due to the online learning environment.

Best Practices:

Actively listen to students who are navigating an educational limitation due to a documented disability

Provide a safe place for students to share their frustrations and challenges; especially with the abrupt shift to online courses

Foster a culture of inclusion and do not allow ableism to create an environment where students with disabilities feel less than

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Professional Association: American Association of Community Colleges

Citation: Christian, K. & Bacchus, G. (2020). Providing access for students with disabilities. https://www.aacc.nche.edu/wp-content/uploads/2020/04/Providing_Access_for_Students_with_Disabilities.pdf
Summary:
This presentation is providing COVID-19 response information and policies for continuing to support students with disabilities. The presentation also outlines the challenges ahead for students with disabilities transitioning and adjusting to an online course environment.

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Admitting a Student, and Turning Down His Accommodation (at First)

Citation: Jaschik, S. (2021). Admitting a student, and turning down his accommodation (at first). Inside Higher Ed. https://www.insidehighered.com/admissions/article/2021/03/15/stanford-admits-student-denies-his-request-accommodation

A student with Cerebral Palsy was denied the use of a scribe for homework

The student was given a scribe for in-class, but providing a scribe for his homework was considered a personal service

Stanford agreed to meet with student and review his request after he had the support of over 57,000 people

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Antonio Milane dreamed of going to Stanford University. Several months ago, his dream came true.

"I was accepted into my dream school, Stanford University. At first, I felt like I was on top of the world," he wrote in a Change.org petition that has attracted 57,000 supporters. But his acceptance was followed by a rejection -- of an accommodation request.

He described his battle with cerebral palsy, which dates back to his birth. His doctors describe him as a "miracle child" who hadn't been expected to live. He also has epilepsy.

"Just when I thought that the battle was over and that I could delve into my dreams at last, I realized that I might not be able to attend. The same story that befell me in prior years was going to consume my life again: Stanford University is unwilling to provide me access to a scribe for assignments, deeming my necessity as a 'personal preference.' Despite being an institution with billions of dollars, with enough resources to easily provide me with the needed accommodations, Stanford still negates its responsibility to do so, thus representing a blockade in my future endeavors. Simply put, I would be unable to attend Stanford and achieve my goals without the assistance of a scribe, as work will be impossible to complete for a boy who can not write," he wrote.

"This petition represents the voice of the silenced and the continuous fight for accessibility. Around the country, thousands of disabled students fight for the right to attend college. My story coincides with this battle, and it is before you now," he added.

What Stanford said at the time was that it would provide a scribe for class time, but not beyond that. Having a scribe to help with homework was a "personal service" for which the university would not pay.

Now, the university is responding differently.

"Our goal is always to ensure that all of our students can take advantage of every academic opportunity the university offers and enjoy a meaningful student experience," Dee Mostofi, assistant vice president for media relations and communications, said in an email. "The Office of Accessible Education generally conducts the initial assessment process after students accept and enroll with us to determine what they need to be successful at Stanford. In this case, should Mr. Milane choose to come to Stanford to pursue his undergraduate education, we are committing to supporting his request for an academic scribe or typists to assist him with his out-of-classroom coursework needs."

She added, "The increased dialogue of the past few days about accessibility has underscored the importance of looking at the totality of our disability programs and re-envisioning what the next era of disability access at Stanford should encompass. Work will begin this spring with a study group, which will research and analyze best practices for disability access at academic institutions. These efforts will inform a new task force that will launch in the fall. As we evolve to meet the needs of our student community, we must ensure that our programs are consistent with our values as an inclusive university."

Previous statements from Stanford over the past week did not name Milane or speak of any commitments to him, or of reviewing the university's policies.

"As we said in our statement, we always work with our students to make sure they have what they need to be successful at Stanford," Mostofi said. "In cases like Mr. Milane's, this would happen through the OAE office once a student accepts our offer of admission and enrolls. In this case, Mr. Milane wanted that commitment before he made his decision and the university chose to commit to supporting his request."

Milane said the new statement had raised his hopes again. "This is a really good thing," he said via email.

One reason Stanford may have denied his request at first is that the university may have the law on its side.

L. Scott Lissner, Americans With Disabilities Act coordinator and Section 504 compliance officer at Ohio State University, and a strong supporter of rights for students with disabilities, cited the last sentence in a part of the regulations: "Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature."

Lissner said that "based on what I know, Stanford's [original] decision is both compliant with the ADA and Section 504 of the Rehab Act and reflects standard practice in the field." However, he added, "it also reflects a flaw in our system of access and accommodations."

Students with disabilities face many costs that aren't covered by colleges, he said.

"I hope that as Congress takes up the reauthorization of the Higher Education Act, it provides a clearer path to support the higher cost of being students with disability," he added.

Lissner said he is happy for Milane, but "a yes for him alone does not solve the underlying problem."

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Stanford admits a student, but denies his request for accommodation

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Antonio Milane dreamed of going to Stanford University. Several months ago, his dream came true. "I was accepted into my dream school, Stanford University. At first, I felt like I was on top of the world," he wrote in a Change.org petition that has attracted 57,000 supporters.

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Disabled Students Already Faced Learning Barriers. Then Coronavirus Forced an Abrupt Shift to Online Classes.

Citation: Custodio, J. (2020). Disabled students already faced learning barriers. Then coronavirus forced an abrupt shift to online classes. The Chronicle of Higher Education. https://www.chronicle.com/article/disabled-students-already-faced-learning-barriers-then-coronavirus-forced-an-abrupt-shift-to-online-classes/

The article discusses access issues that have been overlooked since the abrupt shift to online learning dues to COVID-19.

Instructors agree to offer the accommodations but never follow through

Instructors make students with disabilities feel like they are getting an advantage over other students if they use their accommodations.

12% of graduate students have some kind of disability.

Discusses the difference between access needs and accommodations

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Slide #6 Original Sources of Law: Federal Constitutional Law 

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Slide #6 Original Sources of Law: Federal Constitutional Law 

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Individuals with Disabilities Education Act (IDEA)
Citation: Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004)

Children with disabilities are ensured a free appropriate public education. FAPE means educational services

Special education programs must be designed for the student to make progress in the general education curriculum

Students must receive an evaluation before they receive special education services

Individual transition plan (IEP) is required for each student no later than age 16.

If a student is placed outside the general education classroom it must be aligned to the child’s individual disability

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SUBCHAPTER I-GENERAL PROVISIONS

SUBCHAPTER II-ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES

SUBCHAPTER III-INFANTS AND TODDLERS WITH DISABILITIES

SUBCHAPTER IV-NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH DISABILITIES

Part A-State Personnel Development Grants

Part B-Personnel Preparation, Technical Assistance, Model Demonstration Projects, and Dissemination of Information

Part C-Supports To Improve Results for Children With Disabilities

Part D-General Provisions

Codification

SUBCHAPTER I-GENERAL PROVISIONS

§1400. Short title; findings; purposes

(a) Short title

This chapter may be cited as the "Individuals with Disabilities Education Act".

(b) Omitted

(c) Findings

Congress finds the following:

(1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

(2) Before the date of enactment of the Education for All Handicapped Children Act of 1975 ( Public Law 94-142), the educational needs of millions of children with disabilities were not being fully met because-

(A) the children did not receive appropriate educational services;

(B) the children were excluded entirely from the public school system and from being educated with their peers;

(C) undiagnosed disabilities prevented the children from having a successful educational experience; or

(D) a lack of adequate resources within the public school system forced families to find services outside the public school system.

(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this chapter has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.

(4) However, the implementation of this chapter has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.

(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by-

(A) having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to-

(i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and

(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;

(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home;

(C) coordinating this chapter with other local, educational service agency, State, and Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6301 et seq.], in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent;

(D) providing appropriate special education and related services, and aids and supports in the regular classroom, to such children, whenever appropriate;

(E) supporting high-quality, intensive preservice preparation and professional development for all personnel who work with children with disabilities in order to ensure that such personnel have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities, including the use of scientifically based instructional practices, to the maximum extent possible;

(F) providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children;

(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results; and

(H) supporting the development and use of technology, including assistive technology devices and assistive technology services, to maximize accessibility for children with disabilities.

(6) While States, local educational agencies, and educational service agencies are primarily responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.

(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.

(8) Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.

(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.

(10)(A) The Federal Government must be responsive to the growing needs of an increasingly diverse society.

(B) America's ethnic profile is rapidly changing. In 2000, 1 of every 3 persons in the United States was a member of a minority group or was limited English proficient.

(C) Minority children comprise an increasing percentage of public school students.

(D) With such changing demographics, recruitment efforts for special education personnel should focus on increasing the participation of minorities in the teaching profession in order to provide appropriate role models with sufficient knowledge to address the special education needs of these students.

(11)(A) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation.

(B) Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education.

(C) Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non-English language backgrounds.

(12)(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities.

(B) More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.

(C) African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their White counterparts.

(D) In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.

(E) Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.

(13)(A) As the number of minority students in special education increases, the number of minority teachers and related services personnel produced in colleges and universities continues to decrease.

(B) The opportunity for full participation by minority individuals, minority organizations, and Historically Black Colleges and Universities in awards for grants and contracts, boards of organizations receiving assistance under this chapter, peer review panels, and training of professionals in the area of special education is essential to obtain greater success in the education of minority children with disabilities.

(14) As the graduation rates for children with disabilities continue to climb, providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities.

(d) Purposes

The purposes of this chapter are-

(1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and

(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;

(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

References in Text

Codification

Section is comprised of section 601 of Pub. L. 91-230. Subsec. (b) of section 601 of Pub. L. 91-230 set out the table of contents for the Individuals with Disabilities Education Act.

Prior Provisions

Another prior section 1400, Pub. L. 91-230, title VI, §601, Apr. 13, 1970, 84 Stat. 175; Pub. L. 94-142, §3, Nov. 29, 1975, 89 Stat. 774; Pub. L. 101-476, title IX, §901(a)(1), (b)(1)-(9), Oct. 30, 1990, 104 Stat. 1141, 1142; Pub. L. 102-119, §25(b), Oct. 7, 1991, 105 Stat. 607, contained short title for this chapter and related to congressional statements and declarations, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17. This section had been classified as a note under former section 1401 of this title prior to being amended by Pub. L. 94-142.

Amendments

2010-Subsec. (c)(12)(C). Pub. L. 111-256 substituted "having intellectual disabilities" for "having mental retardation".

Effective Date

Pub. L. 108-446, title III, §302(a), (b), Dec. 3, 2004, 118 Stat. 2803, as amended by Pub. L. 114-95, title IX, §9214(e), Dec. 10, 2015, 129 Stat. 2166, provided that:

"(a) Parts A, B, and C, and subpart 1 of Part D.-Parts A, B, and C, and subpart 1 of part D, of the Individuals with Disabilities Education Act [subchapters I, II, and III and part A of subchapter IV of this chapter], as amended by title I, shall take effect on July 1, 2005.

"(b) Subparts 2, 3, and 4 of part D.-Subparts 2, 3, and 4 of part D of the Individuals with Disabilities Education Act [parts B, C, and D of subchapter IV of this chapter], as amended by title I, shall take effect on the date of enactment of this Act [Dec. 3, 2004]."

Short Title of 2010 Amendment

Pub. L. 111-256, §1, Oct. 5, 2010, 124 Stat. 2643, provided that: "This Act [amending this section, sections 1140, 1401, and 7512 of this title, sections 705, 764, and 791 of Title 29, Labor, and sections 217a-1, 247b-4, 285g, 285g-2, 291k, 294c, and 300d-52 of Title 42, The Public Health and Welfare, enacting provisions set out as notes under this section, and amending provisions set out as notes under sections 280f, 285g, 300b-1, and 2000ff of Title 42] may be cited as 'Rosa's Law'."

Short Title of 2004 Amendment

Pub. L. 108-446, §1, Dec. 3, 2004, 118 Stat. 2647, provided that: "This Act [enacting subchapters I to IV of this chapter, part E of subchapter I of chapter 76 of this title, and sections 9567 to 9567b of this title, amending sections 927, 1087ee, 1087ii, 4304, 5802, 6103, 6311, 6317, 7221g, 7273b, 9511, 9515, 9516, and 9605 of this title, section 2164 of Title 10, Armed Forces, section 121 of Title 17, Copyrights, sections 721, 725, 772, and 773 of Title 29, Labor, and sections 280c-6, 290bb-25, 290ff-1, 290ff-2, 1396b, 1396n, 5011, 9835, 9836, 9837, 12511, 15025, and 15064 of Title 42, The Public Health and Welfare, repealing section 1444 of this title, redesignating former part E of subchapter I of chapter 76 of this title as part F, omitting sections 1445, 1456, and 1483 to 1487 of this title, enacting provisions set out as notes under this section and section 9567b of this title, and amending provisions set out as a note under section 285g of Title 42] may be cited as the 'Individuals with Disabilities Education Improvement Act of 2004'."

Short Title of 1997 Amendment

Pub. L. 105-17, §1, June 4, 1997, 111 Stat. 37, provided that: "This Act [enacting subchapters I to IV of this chapter, repealing former subchapters III and V to IX of this chapter, and enacting provisions set out as notes under this section and sections 1431 and 1451 of this title] may be cited as the 'Individuals with Disabilities Education Act Amendments of 1997'."

Short Title of 1991 Amendment

Short Title of 1990 Amendment

Short Title of 1988 Amendment

Pub. L. 100-630, §1, Nov. 7, 1988, 102 Stat. 3289, provided that: "This Act [amending sections 101, 1401, 1404, 1406, 1407, 1411 to 1419, 1421 to 1425, 1431 to 1433, 1441, 1443, 1451, 1452, 1461, 1471, 1472, and 1475 to 1482 of this title, sections 702, 705, 706, 709, 711, 713, 717, 720 to 723, 731, 732, 740, 741, 750, 752, 761 to 762, 770, 772, 774 to 776, 777 to 777b, 777d, 777f, 780, 781 to 783, 791 to 794, 794b, 794d, 795a, 795g to 795i, 795l to 795n, 795q, 796a to 796g, 796i, and 1904 of Title 29, Labor, and section 155 of Title 36, Patriotic Societies and Observances, enacting provisions set out as notes under sections 101, 1419, and 1432 of this title and sections 731 and 777c of Title 29, and repealing provisions set out as a note under section 795m of Title 29] may be cited as the 'Handicapped Programs Technical Amendments Act of 1988'."

Short Title of 1986 Amendments

Pub. L. 99-457, §1(a), Oct. 8, 1986, 100 Stat. 1145, provided that: "This Act [enacting sections 1408, 1461, 1462, and 1471 to 1485 of this title, amending sections 1401, 1406, 1411 to 1413, 1418, 1419, 1421 to 1424, 1424a, 1425, 1427, 1431 to 1433, 1435, 1441, 1443, 1444, 1452, and 1454 of this title, repealing sections 1403 and 1453 of this title, and enacting provisions set out as notes under sections 1419 and 1485 of this title] may be cited as the 'Education of the Handicapped Act Amendments of 1986'."

Short Title of 1983 Amendment

Pub. L. 98-199, §1, Dec. 2, 1983, 97 Stat. 1357, provided: "That this Act [enacting sections 1407 and 1427 of this title, amending sections 1401 to 1404, 1406, 1411 to 1414, 1416 to 1426, 1431 to 1435, 1441 to 1444, 1452, 1454, and 1461 of this title, repealing section 1461 of this title, omitting section 1436 of this title, enacting a provision set out as a note under section 1401 of this title, and amending provisions set out as notes under sections 101, 681, and 1411 of this title] may be cited as the 'Education of the Handicapped Act Amendments of 1983'."

Short Title of 1977 Amendment

Short Title of 1975 Amendment

Short Title of 1974 Amendment

Pub. L. 93-380, title VI, §611, Aug. 21, 1974, 88 Stat. 579, provided that: "This title [enacting section 1424a of this title, amending sections 1402, 1403, 1411 to 1413, 1426, 1436, 1444, 1452, 1454, and 1461 of this title, and enacting provisions set out as notes under sections 1402 and 1411 to 1413 of this title] may be cited as the 'Education of the Handicapped Amendments of 1974'."

Regulations

"(1) before the regulations are amended to carry out this Act-

"(A) a reference in the regulations to mental retardation shall be considered to be a reference to an intellectual disability; and

"(B) a reference in the regulations to the mentally retarded, or individuals who are mentally retarded, shall be considered to be a reference to individuals with intellectual disabilities; and

"(2) in amending the regulations to carry out this Act, a Federal agency shall ensure that the regulations clearly state-

"(A) that an intellectual disability was formerly termed mental retardation; and

"(B) that individuals with intellectual disabilities were formerly termed individuals who are mentally retarded."

Construction of 2010 Amendment

"(1) change the coverage, eligibility, rights, responsibilities, or definitions referred to in the amended provisions; or

"(2) compel States to change terminology in State laws for individuals covered by a provision amended by this Act."

Transition

"(a) Orderly Transition.-

"(1) In general.-The Secretary of Education (in this section referred to as 'the Secretary') shall take such steps as are necessary to provide for the orderly transition from the Individuals with Disabilities Education Act [this chapter], as such Act was in effect on the day preceding the date of enactment of this Act [Dec. 3, 2004], to the Individuals with Disabilities Education Act [this chapter] and part E of the Education Sciences Reform Act of 2002 [ 20 U.S.C. 9567 et seq.], as amended by this Act.

"(2) Limitation.-The Secretary's authority in paragraph (1) shall terminate 1 year after the date of enactment of this Act.

"(b) Multi-year Awards.-Notwithstanding any other provision of law, the Secretary may use funds appropriated under part D of the Individuals with Disabilities Education Act [subchapter IV of this chapter] to make continuation awards for projects that were funded under section 618 [ 20 U.S.C. 1418], and part D, of the Individuals with Disabilities Education Act (as such section and part were in effect on September 30, 2004), in accordance with the terms of the original awards.

"(c) Research.-Notwithstanding section 302(b) [set out as a note above] or any other provision of law, the Secretary may award funds that are appropriated under the Department of Education Appropriations Act, 2005 [Pub. L. 108-447, div. F, title III, 118 Stat. 3142, see Tables for classification] for special education research under either of the headings ' Special Education' or ' Institute of Education Sciences' in accordance with sections 672 and 674 of the Individuals with Disabilities Education Act [ 20 U.S.C. 1472, 1474], as such sections were in effect on October 1, 2004."

References to Education of the Handicapped Act

Definitions

Pub. L. 111-256, §2(k), Oct. 5, 2010, 124 Stat. 2644, provided that: "For purposes of each provision amended by this section [amending this section, sections 1140, 1401, and 7512 of this title, sections 705, 764, and 791 of Title 29, Labor, and sections 217a-1, 247b-4, 285g, 285g-2, 291k, 294c, and 300d-52 of Title 42, The Public Health and Welfare, and amending provisions set out as notes under sections 280f, 285g, 300b-1, and 2000ff of Title 42]-

"(1) a reference to 'an intellectual disability' shall mean a condition previously referred to as 'mental retardation', or a variation of this term, and shall have the same meaning with respect to programs, or qualifications for programs, for individuals with such a condition; and

"(2) a reference to individuals with intellectual disabilities shall mean individuals who were previously referred to as individuals who are 'individuals with mental retardation' or 'the mentally retarded', or variations of those terms."

§1401. Definitions

Except as otherwise provided, in this chapter:

(1) Assistive technology device

(A) In general

The term "assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability.

(B) Exception

The term does not include a medical device that is surgically implanted, or the replacement of such device.

(2) Assistive technology service

The term "assistive technology service" means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Such term includes-

(A) the evaluation of the needs of such child, including a functional evaluation of the child in the child's customary environment;

(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;

(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(E) training or technical assistance for such child, or, where appropriate, the family of such child; and

(F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.

(3) Child with a disability

(A) In general

The term "child with a disability" means a child-

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

(B) Child aged 3 through 9

The term "child with a disability" for a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the local educational agency, include a child-

(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and

(ii) who, by reason thereof, needs special education and related services.

(5) Educational service agency

The term "educational service agency"-

(A) means a regional public multiservice agency-

(i) authorized by State law to develop, manage, and provide services or programs to local educational agencies; and

(ii) recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools of the State; and

(B) includes any other public institution or agency having administrative control and direction over a public elementary school or secondary school.

(6) Elementary school

The term "elementary school" means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law.

(7) Equipment

The term "equipment" includes-

(A) machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house such machinery, utilities, or equipment; and

(B) all other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published, and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.

(8) Excess costs

The term "excess costs" means those costs that are in excess of the average annual per-student expenditure in a local educational agency during the preceding school year for an elementary school or secondary school student, as may be appropriate, and which shall be computed after deducting-

(A) amounts received-

(i) under subchapter II;

(ii) under part A of title I of the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6311 et seq.]; and

(iii) under part A of title III of that Act [ 20 U.S.C. 6811 et seq.]; and

(B) any State or local funds expended for programs that would qualify for assistance under any of those parts.

(9) Free appropriate public education

The term "free appropriate public education" means special education and related services that-

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

(11) Homeless children

The term "homeless children" has the meaning given the term "homeless children and youths" in section 11434a of title 42.

(12) Indian

The term "Indian" means an individual who is a member of an Indian tribe.

(13) Indian tribe

The term "Indian tribe" means any Federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq.)).

(14) Individualized education program; IEP

The term "individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.

(15) Individualized family service plan

The term "individualized family service plan" has the meaning given the term in section 1436 of this title.

(16) Infant or toddler with a disability

The term "infant or toddler with a disability" has the meaning given the term in section 1432 of this title.

(17) Institution of higher education

The term "institution of higher education"-

(A) has the meaning given the term in section 1001 of this title; and

(B) also includes any college or university receiving funding from the Secretary of the Interior under the Tribally Controlled Colleges and Universities Assistance Act of 1978 [ 25 U.S.C. 1801 et seq.].

(18) Limited English proficient

The term "limited English proficient" has the meaning given the term "English learner" in section 8101 of the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 7801].

(19) Local educational agency

(A) In general

The term "local educational agency" means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary schools or secondary schools.

(B) Educational service agencies and other public institutions or agencies

The term includes-

(i) an educational service agency; and

(ii) any other public institution or agency having administrative control and direction of a public elementary school or secondary school.

(C) BIA funded schools

The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs, but only to the extent that such inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this chapter with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs.

(20) Native language

The term "native language", when used with respect to an individual who is limited English proficient, means the language normally used by the individual or, in the case of a child, the language normally used by the parents of the child.

(21) Nonprofit

The term "nonprofit", as applied to a school, agency, organization, or institution, means a school, agency, organization, or institution owned and operated by 1 or more nonprofit corporations or associations no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.

(22) Outlying area

The term "outlying area" means the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

(23) Parent

The term "parent" means-

(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or

(D) except as used in sections 1415(b)(2) and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.

(24) Parent organization

The term "parent organization" has the meaning given the term in section 1471(g) of this title.

(25) Parent training and information center

The term "parent training and information center" means a center assisted under section 1471 or 1472 of this title.

(26) Related services

(A) In general

The term "related services" means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

(B) Exception

The term does not include a medical device that is surgically implanted, or the replacement of such device.

(27) Secondary school

The term "secondary school" means a nonprofit institutional day or residential school, including a public secondary charter school, that provides secondary education, as determined under State law, except that it does not include any education beyond grade 12.

(28) Secretary

The term "Secretary" means the Secretary of Education.

(29) Special education

The term "special education" means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including-

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

(B) instruction in physical education.

(30) Specific learning disability

(A) In general

The term "specific learning disability" means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.

(B) Disorders included

Such term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(C) Disorders not included

Such term does not include a learning problem that is primarily the result of visual, hearing, or motor disabilities, of intellectual disabilities, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

(31) State

The term "State" means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.

(32) State educational agency

The term "State educational agency" means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.

(33) Supplementary aids and services

The term "supplementary aids and services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 1412(a)(5) of this title.

(34) Transition services

The term "transition services" means a coordinated set of activities for a child with a disability that-

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

(35) Universal design

The term "universal design" has the meaning given the term in section 3002 of title 29.

(36) Ward of the State

(A) In general

The term "ward of the State" means a child who, as determined by the State where the child resides, is a foster child, is a ward of the State, or is in the custody of a public child welfare agency.

(B) Exception

The term does not include a foster child who has a foster parent who meets the definition of a parent in paragraph (23).

( Pub. L. 91-230, title VI, §602, as added Pub. L. 108-446, title I, §101, Dec. 3, 2004, 118 Stat. 2652; amended Pub. L. 110-315, title IX, §941(k)(2)(C), Aug. 14, 2008, 122 Stat. 3466; Pub. L. 111-256, §2(b)(2), Oct. 5, 2010, 124 Stat. 2643; Pub. L. 114-95, title IX, §§9214(d)(1), 9215(ss)(1), Dec. 10, 2015, 129 Stat. 2164, 2181.)

References in Text

The Elementary and Secondary Education Act of 1965, referred to in par. (8)(A)(ii), (iii), is Pub. L. 89-10, Apr. 11, 1965, 79 Stat. 27. Part A of title I of the Act is classified generally to part A (§6311 et seq.) of subchapter I of chapter 70 of this title. Part A of title III of the Act is classified generally to part A (§6811 et seq.) of subchapter III of chapter 70 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of this title and Tables.

Prior Provisions

Another prior section 1401, Pub. L. 91-230, title VI, §602, Apr. 13, 1970, 84 Stat. 175; Pub. L. 94-142, §4(a), Nov. 29, 1975, 89 Stat. 775; Pub. L. 98-199, §§2, 3(b), Dec. 2, 1983, 97 Stat. 1357, 1358; Pub. L. 99-457, title IV, §402, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100-630, title I, §101(a), Nov. 7, 1988, 102 Stat. 3289; Pub. L. 101-476, title I, §101, title IX, §901(b)(10)-(20), Oct. 30, 1990, 104 Stat. 1103, 1142, 1143; Pub. L. 102-73, title VIII, §802(d)(1), July 25, 1991, 105 Stat. 361; Pub. L. 102-119, §§3, 25(a)(1), (b), Oct. 7, 1991, 105 Stat. 587, 605, 607; Pub. L. 103-382, title III, §391(f)(1), Oct. 20, 1994, 108 Stat. 4023, related to definitions of terms used in this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Par. (4). Pub. L. 114-95, §9215(ss)(1)(A), struck out par. (4). Text read as follows: "The term 'core academic subjects' has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965."

Par. (8)(A)(iii). Pub. L. 114-95, §9215(ss)(1)(B), which directed substitution of "under part A of title III of that Act" for "under parts A and B of title III of that Act" in "paragraph (8)(a)(3)", was executed to par. (8)(A)(iii) to reflect the probable intent of Congress.

Par. (10). Pub. L. 114-95, §9214(d)(1), struck out par. (10) which related to definition of highly qualified.

Par. (18). Pub. L. 114-95, §9215(ss)(1)(C), added par. (18) and struck out former par. (18). Prior to amendment, text read as follows: "The term 'limited English proficient' has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965."

2010-Par. (3)(A)(i). Pub. L. 111-256, §2(b)(2)(A), substituted "with intellectual disabilities" for "with mental retardation".

Par. (30)(C). Pub. L. 111-256, §2(b)(2)(B), substituted "of intellectual disabilities" for "of mental retardation".

2008-Par. (17)(B). Pub. L. 110-315 substituted "college or university" for "community college" and "the Tribally Controlled Colleges and Universities Assistance Act of 1978" for "the Tribally Controlled College or University Assistance Act of 1978".

Effective Date of 2015 Amendment

Effective Date

Section effective July 1, 2005, see section 302(a) of Pub. L. 108-446, set out as a note under section 1400 of this title.

Definitions

§1402. Office of Special Education Programs

(a) Establishment

There shall be, within the Office of Special Education and Rehabilitative Services in the Department of Education, an Office of Special Education Programs, which shall be the principal agency in the Department for administering and carrying out this chapter and other programs and activities concerning the education of children with disabilities.

(b) Director

The Office established under subsection (a) shall be headed by a Director who shall be selected by the Secretary and shall report directly to the Assistant Secretary for Special Education and Rehabilitative Services.

(c) Voluntary and uncompensated services

Notwithstanding section 1342 of title 31, the Secretary is authorized to accept voluntary and uncompensated services in furtherance of the purposes of this chapter.

Prior Provisions

§1403. Abrogation of State sovereign immunity

(a) In general

A State shall not be immune under the 11th amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter.

(b) Remedies

In a suit against a State for a violation of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as those remedies are available for such a violation in the suit against any public entity other than a State.

(c) Effective date

Subsections (a) and (b) apply with respect to violations that occur in whole or part after October 30, 1990.

Prior Provisions

Another prior section 1403, Pub. L. 91-230, title VI, §604, Apr. 13, 1970, 84 Stat. 177; Pub. L. 93-380, title VI, §613, Aug. 21, 1974, 88 Stat. 580; Pub. L. 94-273, §§3(14), 13(2), Apr. 21, 1976, 90 Stat. 376, 378; Pub. L. 98-199, §4, Dec. 2, 1983, 97 Stat. 1358, established the National Advisory Committee on the Education of Handicapped Children and Youth, prior to repeal by Pub. L. 99-457, title IV, §407, Oct. 8, 1986, 100 Stat. 1177.

§1404. Acquisition of equipment; construction or alteration of facilities

(a) In general

If the Secretary determines that a program authorized under this chapter will be improved by permitting program funds to be used to acquire appropriate equipment, or to construct new facilities or alter existing facilities, the Secretary is authorized to allow the use of those funds for those purposes.

(b) Compliance with certain regulations

Any construction of new facilities or alteration of existing facilities under subsection (a) shall comply with the requirements of-

(1) appendix A of part 36 of title 28, Code of Federal Regulations (commonly known as the "Americans with Disabilities Accessibility Guidelines for Buildings and Facilities"); or

(2) appendix A of subpart 101-19.6 of title 41, Code of Federal Regulations (commonly known as the "Uniform Federal Accessibility Standards").

Prior Provisions

Another prior section 1404, Pub. L. 91-230, title VI, §605, Apr. 13, 1970, 84 Stat. 177; Pub. L. 98-199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100-630, title I, §101(b), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 102-119, §25(a)(2), Oct. 7, 1991, 105 Stat. 605, related to acquisition of equipment and construction of necessary facilities, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

§1405. Employment of individuals with disabilities

The Secretary shall ensure that each recipient of assistance under this chapter makes positive efforts to employ and advance in employment qualified individuals with disabilities in programs assisted under this chapter.

Prior Provisions

Another prior section 1405, Pub. L. 91-230, title VI, §606, as added Pub. L. 94-142, §6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 101-476, title IX, §901(b)(22), (23), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102-119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to employment of individuals with disabilities by recipients of assistance under this chapter, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

§1406. Requirements for prescribing regulations

(a) In general

In carrying out the provisions of this chapter, the Secretary shall issue regulations under this chapter only to the extent that such regulations are necessary to ensure that there is compliance with the specific requirements of this chapter.

(b) Protections provided to children

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that-

(1) violates or contradicts any provision of this chapter; or

(2) procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

(c) Public comment period

The Secretary shall provide a public comment period of not less than 75 days on any regulation proposed under subchapter II or subchapter III on which an opportunity for public comment is otherwise required by law.

(d) Policy letters and statements

The Secretary may not issue policy letters or other statements (including letters or statements regarding issues of national significance) that-

(1) violate or contradict any provision of this chapter; or

(2) establish a rule that is required for compliance with, and eligibility under, this chapter without following the requirements of section 553 of title 5.

(e) Explanation and assurances

Any written response by the Secretary under subsection (d) regarding a policy, question, or interpretation under subchapter II shall include an explanation in the written response that-

(1) such response is provided as informal guidance and is not legally binding;

(2) when required, such response is issued in compliance with the requirements of section 553 of title 5; and

(3) such response represents the interpretation by the Department of Education of the applicable statutory or regulatory requirements in the context of the specific facts presented.

(f) Correspondence from Department of Education describing interpretations of this chapter

(1) In general

The Secretary shall, on a quarterly basis, publish in the Federal Register, and widely disseminate to interested entities through various additional forms of communication, a list of correspondence from the Department of Education received by individuals during the previous quarter that describes the interpretations of the Department of Education of this chapter or the regulations implemented pursuant to this chapter.

(2) Additional information

For each item of correspondence published in a list under paragraph (1), the Secretary shall-

(A) identify the topic addressed by the correspondence and shall include such other summary information as the Secretary determines to be appropriate; and

(B) ensure that all such correspondence is issued, where applicable, in compliance with the requirements of section 553 of title 5.

Prior Provisions

Another section 1406, Pub. L. 91-230, title VI, §607, as added Pub. L. 94-142, §6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 98-199, §§3(b), 5, Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99-457, title IV, §401, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100-630, title I, §101(c), Nov. 7, 1988, 102 Stat. 3290, related to grants for removal of architectural barriers, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

§1407. State administration

(a) Rulemaking

Each State that receives funds under this chapter shall-

(1) ensure that any State rules, regulations, and policies relating to this chapter conform to the purposes of this chapter;

(2) identify in writing to local educational agencies located in the State and the Secretary any such rule, regulation, or policy as a State-imposed requirement that is not required by this chapter and Federal regulations; and

(3) minimize the number of rules, regulations, and policies to which the local educational agencies and schools located in the State are subject under this chapter.

(b) Support and facilitation

State rules, regulations, and policies under this chapter shall support and facilitate local educational agency and school-level system improvement designed to enable children with disabilities to meet the challenging State student academic achievement standards.

Prior Provisions

A prior section 1407, Pub. L. 91-230, title VI, §608, as added Pub. L. 98-199, §6, Dec. 2, 1983, 97 Stat. 1359; amended Pub. L. 100-630, title I, §101(d), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 101-476, title IX, §901(b)(24), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102-119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to regulation requirements, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

§1408. Paperwork reduction

(a) Pilot program

(1) Purpose

The purpose of this section is to provide an opportunity for States to identify ways to reduce paperwork burdens and other administrative duties that are directly associated with the requirements of this chapter, in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

(2) Authorization

(A) In general

In order to carry out the purpose of this section, the Secretary is authorized to grant waivers of statutory requirements of, or regulatory requirements relating to, subchapter II for a period of time not to exceed 4 years with respect to not more than 15 States based on proposals submitted by States to reduce excessive paperwork and noninstructional time burdens that do not assist in improving educational and functional results for children with disabilities.

(B) Exception

The Secretary shall not waive under this section any statutory requirements of, or regulatory requirements relating to, applicable civil rights requirements.

(C) Rule of construction

Nothing in this section shall be construed to-

(i) affect the right of a child with a disability to receive a free appropriate public education under subchapter II; and

(ii) permit a State or local educational agency to waive procedural safeguards under section 1415 of this title.

(3) Proposal

(A) In general

A State desiring to participate in the program under this section shall submit a proposal to the Secretary at such time and in such manner as the Secretary may reasonably require.

(B) Content

The proposal shall include-

(i) a list of any statutory requirements of, or regulatory requirements relating to, subchapter II that the State desires the Secretary to waive, in whole or in part; and

(ii) a list of any State requirements that the State proposes to waive or change, in whole or in part, to carry out a waiver granted to the State by the Secretary.

(4) Termination of waiver

The Secretary shall terminate a State's waiver under this section if the Secretary determines that the State-

(A) needs assistance under section 1416(d)(2)(A)(ii) of this title and that the waiver has contributed to or caused such need for assistance;

(B) needs intervention under section 1416(d)(2)(A)(iii) of this title or needs substantial intervention under section 1416(d)(2)(A)(iv) of this title; or

(C) failed to appropriately implement its waiver.

(b) Report

Beginning 2 years after December 3, 2004, the Secretary shall include in the annual report to Congress submitted pursuant to section 3486 of this title information related to the effectiveness of waivers granted under subsection (a), including any specific recommendations for broader implementation of such waivers, in-

(1) reducing-

(A) the paperwork burden on teachers, principals, administrators, and related service providers; and

(B) noninstructional time spent by teachers in complying with subchapter II;

(2) enhancing longer-term educational planning;

(3) improving positive outcomes for children with disabilities;

(4) promoting collaboration between IEP Team members; and

(5) ensuring satisfaction of family members.

Prior Provisions

§1409. Freely associated States

The Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau shall continue to be eligible for competitive grants administered by the Secretary under this chapter to the extent that such grants continue to be available to States and local educational agencies under this chapter.

Prior Provisions

A prior section 1409, Pub. L. 91-230, title VI, §610, as added Pub. L. 101-476, title I, §104, Oct. 30, 1990, 104 Stat. 1106, provided administrative provisions applicable to former subchapters III to VII of this chapter and former section 1418 of this title, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

SUBCHAPTER II-ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES

§1411. Authorization; allotment; use of funds; authorization of appropriations

(a) Grants to States

(1) Purpose of grants

The Secretary shall make grants to States, outlying areas, and freely associated States, and provide funds to the Secretary of the Interior, to assist them to provide special education and related services to children with disabilities in accordance with this subchapter.

(2) Maximum amount

The maximum amount of the grant a State may receive under this section-

(A) for fiscal years 2005 and 2006 is-

(i) the number of children with disabilities in the State who are receiving special education and related services-

(I) aged 3 through 5 if the State is eligible for a grant under section 1419 of this title; and

(II) aged 6 through 21; multiplied by

(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary schools in the United States; and

(B) for fiscal year 2007 and subsequent fiscal years is-

(i) the number of children with disabilities in the 2004-2005 school year in the State who received special education and related services-

(I) aged 3 through 5 if the State is eligible for a grant under section 1419 of this title; and

(II) aged 6 through 21; multiplied by

(ii) 40 percent of the average per-pupil expenditure in public elementary schools and secondary schools in the United States; adjusted by

(iii) the rate of annual change in the sum of-

(I) 85 percent of such State's population described in subsection (d)(3)(A)(i)(II); and

(II) 15 percent of such State's population described in subsection (d)(3)(A)(i)(III).

(b) Outlying areas and freely associated States; Secretary of the Interior

(1) Outlying areas and freely associated States

(A) Funds reserved

From the amount appropriated for any fiscal year under subsection (i), the Secretary shall reserve not more than 1 percent, which shall be used-

(i) to provide assistance to the outlying areas in accordance with their respective populations of individuals aged 3 through 21; and

(ii) to provide each freely associated State a grant in the amount that such freely associated State received for fiscal year 2003 under this subchapter, but only if the freely associated State meets the applicable requirements of this subchapter, as well as the requirements of section 1411(b)(2)(C) of this title as such section was in effect on the day before December 3, 2004.

(B) Special rule

The provisions of Public Law 95-134, permitting the consolidation of grants by the outlying areas, shall not apply to funds provided to the outlying areas or the freely associated States under this section.

(C) Definition

In this paragraph, the term "freely associated States" means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.

(2) Secretary of the Interior

From the amount appropriated for any fiscal year under subsection (i), the Secretary shall reserve 1.226 percent to provide assistance to the Secretary of the Interior in accordance with subsection (h).

(c) Technical assistance

(1) In general

The Secretary may reserve not more than ½ of 1 percent of the amounts appropriated under this subchapter for each fiscal year to provide technical assistance activities authorized under section 1416(i) of this title.

(2) Maximum amount

The maximum amount the Secretary may reserve under paragraph (1) for any fiscal year is $25,000,000, cumulatively adjusted by the rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor.

(d) Allocations to States

(1) In general

After reserving funds for technical assistance, and for payments to the outlying areas, the freely associated States, and the Secretary of the Interior under subsections (b) and (c) for a fiscal year, the Secretary shall allocate the remaining amount among the States in accordance with this subsection.

(2) Special rule for use of fiscal year 1999 amount

If a State received any funds under this section for fiscal year 1999 on the basis of children aged 3 through 5, but does not make a free appropriate public education available to all children with disabilities aged 3 through 5 in the State in any subsequent fiscal year, the Secretary shall compute the State's amount for fiscal year 1999, solely for the purpose of calculating the State's allocation in that subsequent year under paragraph (3) or (4), by subtracting the amount allocated to the State for fiscal year 1999 on the basis of those children.

(3) Increase in funds

If the amount available for allocations to States under paragraph (1) for a fiscal year is equal to or greater than the amount allocated to the States under this paragraph for the preceding fiscal year, those allocations shall be calculated as follows:

(A) Allocation of increase

(i) In general

Except as provided in subparagraph (B), the Secretary shall allocate for the fiscal year-

(I) to each State the amount the State received under this section for fiscal year 1999;

(II) 85 percent of any remaining funds to States on the basis of the States' relative populations of children aged 3 through 21 who are of the same age as children with disabilities for whom the State ensures the availability of a free appropriate public education under this subchapter; and

(III) 15 percent of those remaining funds to States on the basis of the States' relative populations of children described in subclause (II) who are living in poverty.

(ii) Data

For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.

(B) Limitations

Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following:

(i) Preceding year allocation

No State's allocation shall be less than its allocation under this section for the preceding fiscal year.

(ii) Minimum

No State's allocation shall be less than the greatest of-

(I) the sum of-

(aa) the amount the State received under this section for fiscal year 1999; and

(bb) 1/3 of 1 percent of the amount by which the amount appropriated under subsection (i) for the fiscal year exceeds the amount appropriated for this section for fiscal year 1999;

(II) the sum of-

(aa) the amount the State received under this section for the preceding fiscal year; and

(bb) that amount multiplied by the percentage by which the increase in the funds appropriated for this section from the preceding fiscal year exceeds 1.5 percent; or

(III) the sum of-

(aa) the amount the State received under this section for the preceding fiscal year; and

(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated for this section from the preceding fiscal year.

(iii) Maximum

Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-

(I) the amount the State received under this section for the preceding fiscal year; and

(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated under this section from the preceding fiscal year.

(C) Ratable reduction

If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i).

(4) Decrease in funds

If the amount available for allocations to States under paragraph (1) for a fiscal year is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:

(A) Amounts greater than fiscal year 1999 allocations

If the amount available for allocations is greater than the amount allocated to the States for fiscal year 1999, each State shall be allocated the sum of-

(i) the amount the State received under this section for fiscal year 1999; and

(ii) an amount that bears the same relation to any remaining funds as the increase the State received under this section for the preceding fiscal year over fiscal year 1999 bears to the total of all such increases for all States.

(B) Amounts equal to or less than fiscal year 1999 allocations

(i) In general

If the amount available for allocations under this paragraph is equal to or less than the amount allocated to the States for fiscal year 1999, each State shall be allocated the amount the State received for fiscal year 1999.

(ii) Ratable reduction

If the amount available for allocations under this paragraph is insufficient to make the allocations described in clause (i), those allocations shall be ratably reduced.

(e) State-level activities

(1) State administration

(A) In general

For the purpose of administering this subchapter, including paragraph (3), section 1419 of this title, and the coordination of activities under this subchapter with, and providing technical assistance to, other programs that provide services to children with disabilities-

(i) each State may reserve for each fiscal year not more than the maximum amount the State was eligible to reserve for State administration under this section for fiscal year 2004 or $800,000 (adjusted in accordance with subparagraph (B)), whichever is greater; and

(ii) each outlying area may reserve for each fiscal year not more than 5 percent of the amount the outlying area receives under subsection (b)(1) for the fiscal year or $35,000, whichever is greater.

(B) Cumulative annual adjustments

For each fiscal year beginning with fiscal year 2005, the Secretary shall cumulatively adjust-

(i) the maximum amount the State was eligible to reserve for State administration under this subchapter for fiscal year 2004; and

(ii) $800,000,

by the rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor.

(C) Certification

Prior to expenditure of funds under this paragraph, the State shall certify to the Secretary that the arrangements to establish responsibility for services pursuant to section 1412(a)(12)(A) of this title are current.

(D) Subchapter III

Funds reserved under subparagraph (A) may be used for the administration of subchapter III, if the State educational agency is the lead agency for the State under such subchapter.

(2) Other State-level activities

(A) State-level activities

(i) In general

Except as provided in clause (iii), for the purpose of carrying out State-level activities, each State may reserve for each of the fiscal years 2005 and 2006 not more than 10 percent from the amount of the State's allocation under subsection (d) for each of the fiscal years 2005 and 2006, respectively. For fiscal year 2007 and each subsequent fiscal year, the State may reserve the maximum amount the State was eligible to reserve under the preceding sentence for fiscal year 2006 (cumulatively adjusted by the rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor).

(ii) Small State adjustment

Notwithstanding clause (i) and except as provided in clause (iii), in the case of a State for which the maximum amount reserved for State administration is not greater than $850,000, the State may reserve for the purpose of carrying out State-level activities for each of the fiscal years 2005 and 2006, not more than 10.5 percent from the amount of the State's allocation under subsection (d) for each of the fiscal years 2005 and 2006, respectively. For fiscal year 2007 and each subsequent fiscal year, such State may reserve the maximum amount the State was eligible to reserve under the preceding sentence for fiscal year 2006 (cumulatively adjusted by the rate of inflation as measured by the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor).

(iii) Exception

If a State does not reserve funds under paragraph (3) for a fiscal year, then-

(I) in the case of a State that is not described in clause (ii), for fiscal year 2005 or 2006, clause (i) shall be applied by substituting "9.0 percent" for "10 percent"; and

(II) in the case of a State that is described in clause (ii), for fiscal year 2005 or 2006, clause (ii) shall be applied by substituting "9.5 percent" for "10.5 percent".

(B) Required activities

Funds reserved under subparagraph (A) shall be used to carry out the following activities:

(i) For monitoring, enforcement, and complaint investigation.

(ii) To establish and implement the mediation process required by section 1415(e) of this title, including providing for the cost of mediators and support personnel.

(C) Authorized activities

Funds reserved under subparagraph (A) may be used to carry out the following activities:

(i) For support and direct services, including technical assistance, personnel preparation, and professional development and training.

(ii) To support paperwork reduction activities, including expanding the use of technology in the IEP process.

(iii) To assist local educational agencies in providing positive behavioral interventions and supports and appropriate mental health services for children with disabilities.

(iv) To improve the use of technology in the classroom by children with disabilities to enhance learning.

(v) To support the use of technology, including technology with universal design principles and assistive technology devices, to maximize accessibility to the general education curriculum for children with disabilities.

(vi) Development and implementation of transition programs, including coordination of services with agencies involved in supporting the transition of children with disabilities to postsecondary activities.

(vii) To assist local educational agencies in meeting personnel shortages.

(viii) To support capacity building activities and improve the delivery of services by local educational agencies to improve results for children with disabilities.

(ix) Alternative programming for children with disabilities who have been expelled from school, and services for children with disabilities in correctional facilities, children enrolled in State-operated or State-supported schools, and children with disabilities in charter schools.

(x) To support the development and provision of appropriate accommodations for children with disabilities, or the development and provision of alternate assessments that are valid and reliable for assessing the performance of children with disabilities, in accordance with sections 6311(b) and 6361 of this title.

(xi) To provide technical assistance to schools and local educational agencies, and direct services, including direct student services described in section 6303b(c)(3) of this title to children with disabilities, to schools or local educational agencies implementing comprehensive support and improvement activities or targeted support and improvement activities under section 6311(d) of this title on the basis of consistent underperformance of the disaggregated subgroup of children with disabilities, including providing professional development to special and regular education teachers, who teach children with disabilities, based on scientifically based research to improve educational instruction, in order to improve academic achievement based on the challenging academic standards described in section 6311(b)(1) of this title.

(3) Local educational agency risk pool

(A) In general

(i) Reservation of funds

For the purpose of assisting local educational agencies (including a charter school that is a local educational agency or a consortium of local educational agencies) in addressing the needs of high need children with disabilities, each State shall have the option to reserve for each fiscal year 10 percent of the amount of funds the State reserves for State-level activities under paragraph (2)(A)-

(I) to establish and make disbursements from the high cost fund to local educational agencies in accordance with this paragraph during the first and succeeding fiscal years of the high cost fund; and

(II) to support innovative and effective ways of cost sharing by the State, by a local educational agency, or among a consortium of local educational agencies, as determined by the State in coordination with representatives from local educational agencies, subject to subparagraph (B)(ii).

(ii) Definition of local educational agency

In this paragraph the term "local educational agency" includes a charter school that is a local educational agency, or a consortium of local educational agencies.

(B) Limitation on uses of funds

(i) Establishment of high cost fund

A State shall not use any of the funds the State reserves pursuant to subparagraph (A)(i), but may use the funds the State reserves under paragraph (1), to establish and support the high cost fund.

(ii) Innovative and effective cost sharing

A State shall not use more than 5 percent of the funds the State reserves pursuant to subparagraph (A)(i) for each fiscal year to support innovative and effective ways of cost sharing among consortia of local educational agencies.

(C) State plan for high cost fund

(i) Definition

The State educational agency shall establish the State's definition of a high need child with a disability, which definition shall be developed in consultation with local educational agencies.

(ii) State plan

The State educational agency shall develop, not later than 90 days after the State reserves funds under this paragraph, annually review, and amend as necessary, a State plan for the high cost fund. Such State plan shall-

(I) establish, in coordination with representatives from local educational agencies, a definition of a high need child with a disability that, at a minimum-

(aa) addresses the financial impact a high need child with a disability has on the budget of the child's local educational agency; and

(bb) ensures that the cost of the high need child with a disability is greater than 3 times the average per pupil expenditure (as defined in section 7801 of this title) in that State;

(II) establish eligibility criteria for the participation of a local educational agency that, at a minimum, takes into account the number and percentage of high need children with disabilities served by a local educational agency;

(III) develop a funding mechanism that provides distributions each fiscal year to local educational agencies that meet the criteria developed by the State under subclause (II); and

(IV) establish an annual schedule by which the State educational agency shall make its distributions from the high cost fund each fiscal year.

(iii) Public availability

The State shall make its final State plan publicly available not less than 30 days before the beginning of the school year, including dissemination of such information on the State website.

(D) Disbursements from the high cost fund

(i) In general

Each State educational agency shall make all annual disbursements from the high cost fund established under subparagraph (A)(i) in accordance with the State plan published pursuant to subparagraph (C).

(ii) Use of disbursements

Each State educational agency shall make annual disbursements to eligible local educational agencies in accordance with its State plan under subparagraph (C)(ii).

(iii) Appropriate costs

The costs associated with educating a high need child with a disability under subparagraph (C)(i) are only those costs associated with providing direct special education and related services to such child that are identified in such child's IEP.

(E) Legal fees

The disbursements under subparagraph (D) shall not support legal fees, court costs, or other costs associated with a cause of action brought on behalf of a child with a disability to ensure a free appropriate public education for such child.

(F) Assurance of a free appropriate public education

Nothing in this paragraph shall be construed-

(i) to limit or condition the right of a child with a disability who is assisted under this subchapter to receive a free appropriate public education pursuant to section 1412(a)(1) of this title in the least restrictive environment pursuant to section 1412(a)(5) of this title; or

(ii) to authorize a State educational agency or local educational agency to establish a limit on what may be spent on the education of a child with a disability.

(G) Special rule for risk pool and high need assistance programs in effect as of January 1, 2004

Notwithstanding the provisions of subparagraphs (A) through (F), a State may use funds reserved pursuant to this paragraph for implementing a placement neutral cost sharing and reimbursement program of high need, low incidence, catastrophic, or extraordinary aid to local educational agencies that provides services to high need students based on eligibility criteria for such programs that were created not later than January 1, 2004, and are currently in operation, if such program serves children that meet the requirement of the definition of a high need child with a disability as described in subparagraph (C)(ii)(I).

(H) Medicaid services not affected

Disbursements provided under this paragraph shall not be used to pay costs that otherwise would be reimbursed as medical assistance for a child with a disability under the State medicaid program under title XIX of the Social Security Act [ 42 U.S.C. 1396 et seq.].

(I) Remaining funds

Funds reserved under subparagraph (A) in any fiscal year but not expended in that fiscal year pursuant to subparagraph (D) shall be allocated to local educational agencies for the succeeding fiscal year in the same manner as funds are allocated to local educational agencies under subsection (f) for the succeeding fiscal year.

(4) Inapplicability of certain prohibitions

A State may use funds the State reserves under paragraphs (1) and (2) without regard to-

(A) the prohibition on commingling of funds in section 1412(a)(17)(B) of this title; and

(B) the prohibition on supplanting other funds in section 1412(a)(17)(C) of this title.

(5) Report on use of funds

As part of the information required to be submitted to the Secretary under section 1412 of this title, each State shall annually describe how amounts under this section-

(A) will be used to meet the requirements of this chapter; and

(B) will be allocated among the activities described in this section to meet State priorities based on input from local educational agencies.

(6) Special rule for increased funds

A State may use funds the State reserves under paragraph (1)(A) as a result of inflationary increases under paragraph (1)(B) to carry out activities authorized under clause (i), (iii), (vii), or (viii) of paragraph (2)(C).

(7) Flexibility in using funds for subchapter III

Any State eligible to receive a grant under section 1419 of this title may use funds made available under paragraph (1)(A), subsection (f)(3), or section 1419(f)(5) of this title to develop and implement a State policy jointly with the lead agency under subchapter III and the State educational agency to provide early intervention services (which shall include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy skills) in accordance with subchapter III to children with disabilities who are eligible for services under section 1419 of this title and who previously received services under subchapter III until such children enter, or are eligible under State law to enter, kindergarten, or elementary school as appropriate.

(f) Subgrants to local educational agencies

(1) Subgrants required

Each State that receives a grant under this section for any fiscal year shall distribute any funds the State does not reserve under subsection (e) to local educational agencies (including public charter schools that operate as local educational agencies) in the State that have established their eligibility under section 1413 of this title for use in accordance with this subchapter.

(2) Procedure for allocations to local educational agencies

For each fiscal year for which funds are allocated to States under subsection (d), each State shall allocate funds under paragraph (1) as follows:

(A) Base payments

The State shall first award each local educational agency described in paragraph (1) the amount the local educational agency would have received under this section for fiscal year 1999, if the State had distributed 75 percent of its grant for that year under section 1411(d) of this title as section 1411(d) was then in effect.

(B) Allocation of remaining funds

After making allocations under subparagraph (A), the State shall-

(i) allocate 85 percent of any remaining funds to those local educational agencies on the basis of the relative numbers of children enrolled in public and private elementary schools and secondary schools within the local educational agency's jurisdiction; and

(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency.

(3) Reallocation of funds

If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities residing in the area served by that local educational agency with State and local funds, the State educational agency may reallocate any portion of the funds under this subchapter that are not needed by that local educational agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities residing in the areas served by those other local educational agencies.

(g) Definitions

In this section:

(1) Average per-pupil expenditure in public elementary schools and secondary schools in the United States

The term "average per-pupil expenditure in public elementary schools and secondary schools in the United States" means-

(A) without regard to the source of funds-

(i) the aggregate current expenditures, during the second fiscal year preceding the fiscal year for which the determination is made (or, if satisfactory data for that year are not available, during the most recent preceding fiscal year for which satisfactory data are available) of all local educational agencies in the 50 States and the District of Columbia; plus

(ii) any direct expenditures by the State for the operation of those agencies; divided by

(B) the aggregate number of children in average daily attendance to whom those agencies provided free public education during that preceding year.

(2) State

The term "State" means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.

(h) Use of amounts by Secretary of the Interior

(1) Provision of amounts for assistance

(A) In general

The Secretary of Education shall provide amounts to the Secretary of the Interior to meet the need for assistance for the education of children with disabilities on reservations aged 5 to 21, inclusive, enrolled in elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior. The amount of such payment for any fiscal year shall be equal to 80 percent of the amount allotted under subsection (b)(2) for that fiscal year. Of the amount described in the preceding sentence-

(i) 80 percent shall be allocated to such schools by July 1 of that fiscal year; and

(ii) 20 percent shall be allocated to such schools by September 30 of that fiscal year.

(B) Calculation of number of children

In the case of Indian students aged 3 to 5, inclusive, who are enrolled in programs affiliated with the Bureau of Indian Affairs (referred to in this subsection as the "BIA") schools and that are required by the States in which such schools are located to attain or maintain State accreditation, and which schools have such accreditation prior to October 7, 1991, the school shall be allowed to count those children for the purpose of distribution of the funds provided under this paragraph to the Secretary of the Interior. The Secretary of the Interior shall be responsible for meeting all of the requirements of this subchapter for those children, in accordance with paragraph (2).

(C) Additional requirement

With respect to all other children aged 3 to 21, inclusive, on reservations, the State educational agency shall be responsible for ensuring that all of the requirements of this subchapter are implemented.

(2) Submission of information

The Secretary of Education may provide the Secretary of the Interior amounts under paragraph (1) for a fiscal year only if the Secretary of the Interior submits to the Secretary of Education information that-

(A) demonstrates that the Department of the Interior meets the appropriate requirements, as determined by the Secretary of Education, of sections 1412 of this title (including monitoring and evaluation activities) and 1413 of this title;

(B) includes a description of how the Secretary of the Interior will coordinate the provision of services under this subchapter with local educational agencies, tribes and tribal organizations, and other private and Federal service providers;

(C) includes an assurance that there are public hearings, adequate notice of such hearings, and an opportunity for comment afforded to members of tribes, tribal governing bodies, and affected local school boards before the adoption of the policies, programs, and procedures related to the requirements described in subparagraph (A);

(D) includes an assurance that the Secretary of the Interior will provide such information as the Secretary of Education may require to comply with section 1418 of this title;

(E) includes an assurance that the Secretary of the Interior and the Secretary of Health and Human Services have entered into a memorandum of agreement, to be provided to the Secretary of Education, for the coordination of services, resources, and personnel between their respective Federal, State, and local offices and with State and local educational agencies and other entities to facilitate the provision of services to Indian children with disabilities residing on or near reservations (such agreement shall provide for the apportionment of responsibilities and costs, including child find, evaluation, diagnosis, remediation or therapeutic measures, and (where appropriate) equipment and medical or personal supplies as needed for a child to remain in school or a program); and

(F) includes an assurance that the Department of the Interior will cooperate with the Department of Education in its exercise of monitoring and oversight of this application, and any agreements entered into between the Secretary of the Interior and other entities under this subchapter, and will fulfill its duties under this subchapter.

(3) Applicability

The Secretary shall withhold payments under this subsection with respect to the information described in paragraph (2) in the same manner as the Secretary withholds payments under section 1416(e)(6) of this title.

(4) Payments for education and services for Indian children with disabilities aged 3 through 5

(A) In general

With funds appropriated under subsection (i), the Secretary of Education shall make payments to the Secretary of the Interior to be distributed to tribes or tribal organizations (as defined under section 5304 of title 25) or consortia of tribes or tribal organizations to provide for the coordination of assistance for special education and related services for children with disabilities aged 3 through 5 on reservations served by elementary schools and secondary schools for Indian children operated or funded by the Department of the Interior. The amount of such payments under subparagraph (B) for any fiscal year shall be equal to 20 percent of the amount allotted under subsection (b)(2).

(B) Distribution of funds

The Secretary of the Interior shall distribute the total amount of the payment under subparagraph (A) by allocating to each tribe, tribal organization, or consortium an amount based on the number of children with disabilities aged 3 through 5 residing on reservations as reported annually, divided by the total of those children served by all tribes or tribal organizations.

(C) Submission of information

To receive a payment under this paragraph, the tribe or tribal organization shall submit such figures to the Secretary of the Interior as required to determine the amounts to be allocated under subparagraph (B). This information shall be compiled and submitted to the Secretary of Education.

(D) Use of funds

The funds received by a tribe or tribal organization shall be used to assist in child find, screening, and other procedures for the early identification of children aged 3 through 5, parent training, and the provision of direct services. These activities may be carried out directly or through contracts or cooperative agreements with the BIA, local educational agencies, and other public or private nonprofit organizations. The tribe or tribal organization is encouraged to involve Indian parents in the development and implementation of these activities. The tribe or tribal organization shall, as appropriate, make referrals to local, State, or Federal entities for the provision of services or further diagnosis.

(E) Biennial report

To be eligible to receive a grant pursuant to subparagraph (A), the tribe or tribal organization shall provide to the Secretary of the Interior a biennial report of activities undertaken under this paragraph, including the number of contracts and cooperative agreements entered into, the number of children contacted and receiving services for each year, and the estimated number of children needing services during the 2 years following the year in which the report is made. The Secretary of the Interior shall include a summary of this information on a biennial basis in the report to the Secretary of Education required under this subsection. The Secretary of Education may require any additional information from the Secretary of the Interior.

(F) Prohibitions

None of the funds allocated under this paragraph may be used by the Secretary of the Interior for administrative purposes, including child count and the provision of technical assistance.

(5) Plan for coordination of services

The Secretary of the Interior shall develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations covered under this chapter. Such plan shall provide for the coordination of services benefiting those children from whatever source, including tribes, the Indian Health Service, other BIA divisions, and other Federal agencies. In developing the plan, the Secretary of the Interior shall consult with all interested and involved parties. The plan shall be based on the needs of the children and the system best suited for meeting those needs, and may involve the establishment of cooperative agreements between the BIA, other Federal agencies, and other entities. The plan shall also be distributed upon request to States, State educational agencies and local educational agencies, and other agencies providing services to infants, toddlers, and children with disabilities, to tribes, and to other interested parties.

(6) Establishment of advisory board

To meet the requirements of section 1412(a)(21) of this title, the Secretary of the Interior shall establish, under the BIA, an advisory board composed of individuals involved in or concerned with the education and provision of services to Indian infants, toddlers, children, and youth with disabilities, including Indians with disabilities, Indian parents or guardians of such children, teachers, service providers, State and local educational officials, representatives of tribes or tribal organizations, representatives from State Interagency Coordinating Councils under section 1441 of this title in States having reservations, and other members representing the various divisions and entities of the BIA. The chairperson shall be selected by the Secretary of the Interior. The advisory board shall-

(A) assist in the coordination of services within the BIA and with other local, State, and Federal agencies in the provision of education for infants, toddlers, and children with disabilities;

(B) advise and assist the Secretary of the Interior in the performance of the Secretary of the Interior's responsibilities described in this subsection;

(C) develop and recommend policies concerning effective inter- and intra-agency collaboration, including modifications to regulations, and the elimination of barriers to inter- and intra-agency programs and activities;

(D) provide assistance and disseminate information on best practices, effective program coordination strategies, and recommendations for improved early intervention services or educational programming for Indian infants, toddlers, and children with disabilities; and

(E) provide assistance in the preparation of information required under paragraph (2)(D).

(7) Annual reports

(A) In general

The advisory board established under paragraph (6) shall prepare and submit to the Secretary of the Interior and to Congress an annual report containing a description of the activities of the advisory board for the preceding year.

(B) Availability

The Secretary of the Interior shall make available to the Secretary of Education the report described in subparagraph (A).

(i) Authorization of appropriations

For the purpose of carrying out this subchapter, other than section 1419 of this title, there are authorized to be appropriated-

(1) $12,358,376,571 for fiscal year 2005;

(2) $14,648,647,143 for fiscal year 2006;

(3) $16,938,917,714 for fiscal year 2007;

(4) $19,229,188,286 for fiscal year 2008;

(5) $21,519,458,857 for fiscal year 2009;

(6) $23,809,729,429 for fiscal year 2010;

(7) $26,100,000,000 for fiscal year 2011; and

(8) such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year.

References in Text

Public Law 95-134, referred to in subsec. (b)(1)(B), is Pub. L. 95-134, Oct. 15, 1977, 91 Stat. 1159, as amended. Provisions relating to consolidation of grants are contained in section 501 of Pub. L. 95-134 which is classified to section 1469a of Title 48, Territories and Insular Possessions.

The Social Security Act, referred to in subsec. (e)(3)(H), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Title XIX of the Act is classified generally to subchapter XIX (§1396 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Prior Provisions

Another prior section 1411, Pub. L. 91-230, title VI, §611, Apr. 13, 1970, 84 Stat. 178; Pub. L. 93-380, title VI, §614(a), (e)(1), (2), Aug. 21, 1974, 88 Stat. 580, 582; Pub. L. 94-142, §§2(a)(1)-(3), 5(a), (c), Nov. 29, 1975, 89 Stat. 773, 776, 794; Pub. L. 95-561, title XIII, §1341(a), Nov. 1, 1978, 92 Stat. 2364; Pub. L. 96-270, §13, June 14, 1980, 94 Stat. 498; Pub. L. 98-199, §§3(b), 15, Dec. 2, 1983, 97 Stat. 1358, 1374; Pub. L. 99-159, title VI, §601, Nov. 22, 1985, 99 Stat. 904; Pub. L. 99-362, §2, July 9, 1986, 100 Stat. 769; Pub. L. 99-457, title II, §201(b), title IV, §§403, 404, Oct. 8, 1986, 100 Stat. 1158, 1173; Pub. L. 100-630, title I, §102(a), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 101-476, title II, §201, title IX, §901(b)(25)-(32), Oct. 30, 1990, 104 Stat. 1111, 1143; Pub. L. 102-73, title VIII, §802(d)(2), (3), July 25, 1991, 105 Stat. 361; Pub. L. 102-119, §§4, 25(a)(4), (19), (b), Oct. 7, 1991, 105 Stat. 587, 606, 607; Pub. L. 103-382, title III, §311, Oct. 20, 1994, 108 Stat. 3931, related to entitlements and allocations, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Subsec. (e)(2)(C)(x). Pub. L. 114-95, §9215(ss)(2)(A)(i), substituted "6361 of this title" for "7301 of this title".

Subsec. (e)(2)(C)(xi). Pub. L. 114-95, §9215(ss)(2)(A)(ii), substituted "including direct student services described in section 6303b(c)(3) of this title to children with disabilities, to schools or local educational agencies implementing comprehensive support and improvement activities or targeted support and improvement activities under section 6311(d) of this title on the basis of consistent underperformance of the disaggregated subgroup of children with disabilities" for "including supplemental educational services as defined in 6316(e) of this title to children with disabilities, in schools or local educational agencies identified for improvement under section 6316 of this title on the sole basis of the assessment results of the disaggregated subgroup of children with disabilities" and "based on the challenging academic standards described in section 6311(b)(1) of this title" for "to meet or exceed the objectives established by the State under section 6311(b)(2)(G) of this title".

Subsec. (e)(3)(C)(ii)(I)(bb). Pub. L. 114-95, §9215(ss)(2)(B), made technical amendment to reference in original act which appears in text as reference to section 7801 of this title.

Effective Date of 2015 Amendment

Effective Date

Subchapter effective July 1, 2005, see section 302(a) of Pub. L. 108-446, set out as a note under section 1400 of this title.

Effect of Reduction

Pub. L. 115-245, div. B, title III, Sept. 28, 2018, 132 Stat. 3100, provided in part: "That the Secretary [of Education] may, in any fiscal year in which a State's allocation under section 611 [ 20 U.S.C. 1411] is reduced in accordance with section 612(a)(18)(B) [ 20 U.S.C. 1412(a)(18)(B)], reduce the amount a State may reserve under section 611(e)(1) [ 20 U.S.C. 1411(e)(1)] by an amount that bears the same relation to the maximum amount described in that paragraph as the reduction under section 612(a)(18)(B) bears to the total allocation the State would have received in that fiscal year under section 611(d) [ 20 U.S.C. 1411(d)] in the absence of the reduction: Provided further, That the Secretary shall either reduce the allocation of funds under section 611 for any fiscal year following the fiscal year for which the State fails to comply with the requirement of section 612(a)(18)(A) [ 20 U.S.C. 1412(a)(18)(A)] as authorized by section 612(a)(18)(B), or seek to recover funds under section 452 of the General Education Provisions Act ( 20 U.S.C. 1234a)".

Similar provisions were contained in the following prior appropriation acts:

§1412. State eligibility

(a) In general

A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets each of the following conditions:

(1) Free appropriate public education

(A) In general

A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.

(B) Limitation

The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children-

(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges; and

(ii) aged 18 through 21 to the extent that State law does not require that special education and related services under this subchapter be provided to children with disabilities who, in the educational placement prior to their incarceration in an adult correctional facility-

(I) were not actually identified as being a child with a disability under section 1401 of this title; or

(II) did not have an individualized education program under this subchapter.

(C) State flexibility

A State that provides early intervention services in accordance with subchapter III to a child who is eligible for services under section 1419 of this title, is not required to provide such child with a free appropriate public education.

(2) Full educational opportunity goal

The State has established a goal of providing full educational opportunity to all children with disabilities and a detailed timetable for accomplishing that goal.

(3) Child find

(A) In general

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

(B) Construction

Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in section 1401 of this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this subchapter.

(4) Individualized education program

An individualized education program, or an individualized family service plan that meets the requirements of section 1436(d) of this title, is developed, reviewed, and revised for each child with a disability in accordance with section 1414(d) of this title.

(5) Least restrictive environment

(A) In general

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(B) Additional requirement

(i) In general

A State funding mechanism shall not result in placements that violate the requirements of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child's IEP.

(ii) Assurance

If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that the State will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.

(6) Procedural safeguards

(A) In general

Children with disabilities and their parents are afforded the procedural safeguards required by section 1415 of this title.

(B) Additional procedural safeguards

Procedures to ensure that testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities for services under this chapter will be selected and administered so as not to be racially or culturally discriminatory. Such materials or procedures shall be provided and administered in the child's native language or mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.

(7) Evaluation

Children with disabilities are evaluated in accordance with subsections (a) through (c) of section 1414 of this title.

(8) Confidentiality

Agencies in the State comply with section 1417(c) of this title (relating to the confidentiality of records and information).

(9) Transition from subchapter III to preschool programs

Children participating in early intervention programs assisted under subchapter III, and who will participate in preschool programs assisted under this subchapter, experience a smooth and effective transition to those preschool programs in a manner consistent with section 1437(a)(9) of this title. By the third birthday of such a child, an individualized education program or, if consistent with sections 1414(d)(2)(B) and 1436(d) of this title, an individualized family service plan, has been developed and is being implemented for the child. The local educational agency will participate in transition planning conferences arranged by the designated lead agency under section 1435(a)(10) of this title.

(10) Children in private schools

(A) Children enrolled in private schools by their parents

(i) In general

To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary schools and secondary schools in the school district served by a local educational agency, provision is made for the participation of those children in the program assisted or carried out under this subchapter by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):

(I) Amounts to be expended for the provision of those services (including direct services to parentally placed private school children) by the local educational agency shall be equal to a proportionate amount of Federal funds made available under this subchapter.

(II) In calculating the proportionate amount of Federal funds, the local educational agency, after timely and meaningful consultation with representatives of private schools as described in clause (iii), shall conduct a thorough and complete child find process to determine the number of parentally placed children with disabilities attending private schools located in the local educational agency.

(III) Such services to parentally placed private school children with disabilities may be provided to the children on the premises of private, including religious, schools, to the extent consistent with law.

(IV) State and local funds may supplement and in no case shall supplant the proportionate amount of Federal funds required to be expended under this subparagraph.

(V) Each local educational agency shall maintain in its records and provide to the State educational agency the number of children evaluated under this subparagraph, the number of children determined to be children with disabilities under this paragraph, and the number of children served under this paragraph.

(ii) Child find requirement

(I) In general

The requirements of paragraph (3) (relating to child find) shall apply with respect to children with disabilities in the State who are enrolled in private, including religious, elementary schools and secondary schools.

(II) Equitable participation

The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children.

(III) Activities

In carrying out this clause, the local educational agency, or where applicable, the State educational agency, shall undertake activities similar to those activities undertaken for the agency's public school children.

(IV) Cost

The cost of carrying out this clause, including individual evaluations, may not be considered in determining whether a local educational agency has met its obligations under clause (i).

(V) Completion period

Such child find process shall be completed in a time period comparable to that for other students attending public schools in the local educational agency.

(iii) Consultation

To ensure timely and meaningful consultation, a local educational agency, or where appropriate, a State educational agency, shall consult with private school representatives and representatives of parents of parentally placed private school children with disabilities during the design and development of special education and related services for the children, including regarding-

(I) the child find process and how parentally placed private school children suspected of having a disability can participate equitably, including how parents, teachers, and private school officials will be informed of the process;

(II) the determination of the proportionate amount of Federal funds available to serve parentally placed private school children with disabilities under this subparagraph, including the determination of how the amount was calculated;

(III) the consultation process among the local educational agency, private school officials, and representatives of parents of parentally placed private school children with disabilities, including how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can meaningfully participate in special education and related services;

(IV) how, where, and by whom special education and related services will be provided for parentally placed private school children with disabilities, including a discussion of types of services, including direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children, and how and when these decisions will be made; and

(V) how, if the local educational agency disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the local educational agency shall provide to the private school officials a written explanation of the reasons why the local educational agency chose not to provide services directly or through a contract.

(iv) Written affirmation

When timely and meaningful consultation as required by clause (iii) has occurred, the local educational agency shall obtain a written affirmation signed by the representatives of participating private schools, and if such representatives do not provide such affirmation within a reasonable period of time, the local educational agency shall forward the documentation of the consultation process to the State educational agency.

(v) Compliance

(I) In general

A private school official shall have the right to submit a complaint to the State educational agency that the local educational agency did not engage in consultation that was meaningful and timely, or did not give due consideration to the views of the private school official.

(II) Procedure

If the private school official wishes to submit a complaint, the official shall provide the basis of the noncompliance with this subparagraph by the local educational agency to the State educational agency, and the local educational agency shall forward the appropriate documentation to the State educational agency. If the private school official is dissatisfied with the decision of the State educational agency, such official may submit a complaint to the Secretary by providing the basis of the noncompliance with this subparagraph by the local educational agency to the Secretary, and the State educational agency shall forward the appropriate documentation to the Secretary.

(vi) Provision of equitable services

(I) Directly or through contracts

The provision of services pursuant to this subparagraph shall be provided-

(aa) by employees of a public agency; or

(bb) through contract by the public agency with an individual, association, agency, organization, or other entity.

(II) Secular, neutral, nonideological

Special education and related services provided to parentally placed private school children with disabilities, including materials and equipment, shall be secular, neutral, and nonideological.

(vii) Public control of funds

The control of funds used to provide special education and related services under this subparagraph, and title to materials, equipment, and property purchased with those funds, shall be in a public agency for the uses and purposes provided in this chapter, and a public agency shall administer the funds and property.

(B) Children placed in, or referred to, private schools by public agencies

(i) In general

Children with disabilities in private schools and facilities are provided special education and related services, in accordance with an individualized education program, at no cost to their parents, if such children are placed in, or referred to, such schools or facilities by the State or appropriate local educational agency as the means of carrying out the requirements of this subchapter or any other applicable law requiring the provision of special education and related services to all children with disabilities within such State.

(ii) Standards

In all cases described in clause (i), the State educational agency shall determine whether such schools and facilities meet standards that apply to State educational agencies and local educational agencies and that children so served have all the rights the children would have if served by such agencies.

(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency

(i) In general

Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

(ii) Reimbursement for private school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(iii) Limitation on reimbursement

The cost of reimbursement described in clause (ii) may be reduced or denied-

(I) if-

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa);

(II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(iv) Exception

Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement-

(I) shall not be reduced or denied for failure to provide such notice if-

(aa) the school prevented the parent from providing such notice;

(bb) the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(I); or

(cc) compliance with clause (iii)(I) would likely result in physical harm to the child; and

(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if-

(aa) the parent is illiterate or cannot write in English; or

(bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.

(11) State educational agency responsible for general supervision

(A) In general

The State educational agency is responsible for ensuring that-

(i) the requirements of this subchapter are met;

(ii) all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency-

(I) are under the general supervision of individuals in the State who are responsible for educational programs for children with disabilities; and

(II) meet the educational standards of the State educational agency; and

(iii) in carrying out this subchapter with respect to homeless children, the requirements of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. 11431 et seq.) are met.

(B) Limitation

Subparagraph (A) shall not limit the responsibility of agencies in the State other than the State educational agency to provide, or pay for some or all of the costs of, a free appropriate public education for any child with a disability in the State.

(C) Exception

Notwithstanding subparagraphs (A) and (B), the Governor (or another individual pursuant to State law), consistent with State law, may assign to any public agency in the State the responsibility of ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.

(12) Obligations related to and methods of ensuring services

(A) Establishing responsibility for services

The Chief Executive Officer of a State or designee of the officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency described in subparagraph (B) and the State educational agency, in order to ensure that all services described in subparagraph (B)(i) that are needed to ensure a free appropriate public education are provided, including the provision of such services during the pendency of any dispute under clause (iii). Such agreement or mechanism shall include the following:

(i) Agency financial responsibility

An identification of, or a method for defining, the financial responsibility of each agency for providing services described in subparagraph (B)(i) to ensure a free appropriate public education to children with disabilities, provided that the financial responsibility of each public agency described in subparagraph (B), including the State medicaid agency and other public insurers of children with disabilities, shall precede the financial responsibility of the local educational agency (or the State agency responsible for developing the child's IEP).

(ii) Conditions and terms of reimbursement

The conditions, terms, and procedures under which a local educational agency shall be reimbursed by other agencies.

(iii) Interagency disputes

Procedures for resolving interagency disputes (including procedures under which local educational agencies may initiate proceedings) under the agreement or other mechanism to secure reimbursement from other agencies or otherwise implement the provisions of the agreement or mechanism.

(iv) Coordination of services procedures

Policies and procedures for agencies to determine and identify the interagency coordination responsibilities of each agency to promote the coordination and timely and appropriate delivery of services described in subparagraph (B)(i).

(B) Obligation of public agency

(i) In general

If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in section 1401(1) relating to assistive technology devices, 1401(2) relating to assistive technology services, 1401(26) relating to related services, 1401(33) relating to supplementary aids and services, and 1401(34) of this title relating to transition services) that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subparagraph (A) or an agreement pursuant to subparagraph (C).

(ii) Reimbursement for services by public agency

If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency (or State agency responsible for developing the child's IEP) shall provide or pay for such services to the child. Such local educational agency or State agency is authorized to claim reimbursement for the services from the public agency that failed to provide or pay for such services and such public agency shall reimburse the local educational agency or State agency pursuant to the terms of the interagency agreement or other mechanism described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to subparagraph (A)(ii).

(C) Special rule

The requirements of subparagraph (A) may be met through-

(i) State statute or regulation;

(ii) signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or

(iii) other appropriate written methods as determined by the Chief Executive Officer of the State or designee of the officer and approved by the Secretary.

(13) Procedural requirements relating to local educational agency eligibility

The State educational agency will not make a final determination that a local educational agency is not eligible for assistance under this subchapter without first affording that agency reasonable notice and an opportunity for a hearing.

(14) Personnel qualifications

(A) In general

The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.

(B) Related services personnel and paraprofessionals

The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that-

(i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services;

(ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.

(C) Qualifications for special education teachers

The qualifications described in subparagraph (A) shall ensure that each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school-

(i) has obtained full State certification as a special education teacher (including participating in an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in section 2005.56(a)(2)(ii) of title 34, Code of Federal Regulations, as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except with respect to any teacher teaching in a public charter school who shall meet the requirements set forth in the State's public charter school law;

(ii) has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) holds at least a bachelor's degree..

(D) Policy

In implementing this section, a State shall adopt a policy that includes a requirement that local educational agencies in the State take measurable steps to recruit, hire, train, and retain personnel who meet the applicable requirements described in this paragraph to provide special education and related services under this subchapter to children with disabilities.

(E) Rule of construction

Notwithstanding any other individual right of action that a parent or student may maintain under this subchapter, nothing in this paragraph shall be construed to create a right of action on behalf of an individual student for the failure of a particular State educational agency or local educational agency staff person to meet the applicable requirements described in this paragraph, or to prevent a parent from filing a complaint about staff qualifications with the State educational agency as provided for under this subchapter.

(15) Performance goals and indicators

The State-

(A) has established goals for the performance of children with disabilities in the State that-

(i) promote the purposes of this chapter, as stated in section 1400(d) of this title;

(ii) are the same as the State's long-term goals and measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title;

(iii) address graduation rates and dropout rates, as well as such other factors as the State may determine; and

(iv) are consistent, to the extent appropriate, with any other goals and standards for children established by the State;

(B) has established performance indicators the State will use to assess progress toward achieving the goals described in subparagraph (A), including measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i) of this title; and

(C) will annually report to the Secretary and the public on the progress of the State, and of children with disabilities in the State, toward meeting the goals established under subparagraph (A), which may include elements of the reports required under section 6311(h) of this title.

(16) Participation in assessments

(A) In general

All children with disabilities are included in all general State and districtwide assessment programs, including assessments described under section 6311 of this title, with appropriate accommodations and alternate assessments where necessary and as indicated in their respective individualized education programs.

(B) Accommodation guidelines

The State (or, in the case of a districtwide assessment, the local educational agency) has developed guidelines for the provision of appropriate accommodations.

(C) Alternate assessments

(i) In general

The State (or, in the case of a districtwide assessment, the local educational agency) has developed and implemented guidelines for the participation of children with disabilities in alternate assessments for those children who cannot participate in regular assessments under subparagraph (A) with accommodations as indicated in their respective individualized education programs.

(ii) Requirements for alternate assessments

The guidelines under clause (i) shall provide for alternate assessments that-

(I) are aligned with the challenging State academic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title; and

(II) if the State has adopted alternate academic achievement standards permitted under section 6311(b)(1)(E) of this title, measure the achievement of children with disabilities against those standards.

(iii) Conduct of alternate assessments

The State conducts the alternate assessments described in this subparagraph.

(D) Reports

The State educational agency (or, in the case of a districtwide assessment, the local educational agency) makes available to the public, and reports to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(i) The number of children with disabilities participating in regular assessments, and the number of those children who were provided accommodations in order to participate in those assessments.

(ii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(I).

(iii) The number of children with disabilities participating in alternate assessments described in subparagraph (C)(ii)(II).

(iv) The performance of children with disabilities on regular assessments and on alternate assessments (if the number of children with disabilities participating in those assessments is sufficient to yield statistically reliable information and reporting that information will not reveal personally identifiable information about an individual student), compared with the achievement of all children, including children with disabilities, on those assessments.

(E) Universal design

The State educational agency (or, in the case of a districtwide assessment, the local educational agency) shall, to the extent feasible, use universal design principles in developing and administering any assessments under this paragraph.

(17) Supplementation of State, local, and other Federal funds

(A) Expenditures

Funds paid to a State under this subchapter will be expended in accordance with all the provisions of this subchapter.

(B) Prohibition against commingling

Funds paid to a State under this subchapter will not be commingled with State funds.

(C) Prohibition against supplantation and conditions for waiver by Secretary

Except as provided in section 1413 of this title, funds paid to a State under this subchapter will be used to supplement the level of Federal, State, and local funds (including funds that are not under the direct control of State or local educational agencies) expended for special education and related services provided to children with disabilities under this subchapter and in no case to supplant such Federal, State, and local funds, except that, where the State provides clear and convincing evidence that all children with disabilities have available to them a free appropriate public education, the Secretary may waive, in whole or in part, the requirements of this subparagraph if the Secretary concurs with the evidence provided by the State.

(18) Maintenance of State financial support

(A) In general

The State does not reduce the amount of State financial support for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year.

(B) Reduction of funds for failure to maintain support

The Secretary shall reduce the allocation of funds under section 1411 of this title for any fiscal year following the fiscal year in which the State fails to comply with the requirement of subparagraph (A) by the same amount by which the State fails to meet the requirement.

(C) Waivers for exceptional or uncontrollable circumstances

The Secretary may waive the requirement of subparagraph (A) for a State, for 1 fiscal year at a time, if the Secretary determines that-

(i) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State; or

(ii) the State meets the standard in paragraph (17)(C) for a waiver of the requirement to supplement, and not to supplant, funds received under this subchapter.

(D) Subsequent years

If, for any year, a State fails to meet the requirement of subparagraph (A), including any year for which the State is granted a waiver under subparagraph (C), the financial support required of the State in future years under subparagraph (A) shall be the amount that would have been required in the absence of that failure and not the reduced level of the State's support.

(19) Public participation

Prior to the adoption of any policies and procedures needed to comply with this section (including any amendments to such policies and procedures), the State ensures that there are public hearings, adequate notice of the hearings, and an opportunity for comment available to the general public, including individuals with disabilities and parents of children with disabilities.

(20) Rule of construction

In complying with paragraphs (17) and (18), a State may not use funds paid to it under this subchapter to satisfy State-law mandated funding obligations to local educational agencies, including funding based on student attendance or enrollment, or inflation.

(21) State advisory panel

(A) In general

The State has established and maintains an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State.

(B) Membership

Such advisory panel shall consist of members appointed by the Governor, or any other official authorized under State law to make such appointments, be representative of the State population, and be composed of individuals involved in, or concerned with, the education of children with disabilities, including-

(i) parents of children with disabilities (ages birth through 26);

(ii) individuals with disabilities;

(iii) teachers;

(iv) representatives of institutions of higher education that prepare special education and related services personnel;

(v) State and local education officials, including officials who carry out activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act ( 42 U.S.C. 11431 et seq.);

(vi) administrators of programs for children with disabilities;

(vii) representatives of other State agencies involved in the financing or delivery of related services to children with disabilities;

(viii) representatives of private schools and public charter schools;

(ix) not less than 1 representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities;

(x) a representative from the State child welfare agency responsible for foster care; and

(xi) representatives from the State juvenile and adult corrections agencies.

(C) Special rule

A majority of the members of the panel shall be individuals with disabilities or parents of children with disabilities (ages birth through 26).

(D) Duties

The advisory panel shall-

(i) advise the State educational agency of unmet needs within the State in the education of children with disabilities;

(ii) comment publicly on any rules or regulations proposed by the State regarding the education of children with disabilities;

(iii) advise the State educational agency in developing evaluations and reporting on data to the Secretary under section 1418 of this title;

(iv) advise the State educational agency in developing corrective action plans to address findings identified in Federal monitoring reports under this subchapter; and

(v) advise the State educational agency in developing and implementing policies relating to the coordination of services for children with disabilities.

(22) Suspension and expulsion rates

(A) In general

The State educational agency examines data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities-

(i) among local educational agencies in the State; or

(ii) compared to such rates for nondisabled children within such agencies.

(B) Review and revision of policies

If such discrepancies are occurring, the State educational agency reviews and, if appropriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards, to ensure that such policies, procedures, and practices comply with this chapter.

(23) Access to instructional materials

(A) In general

The State adopts the National Instructional Materials Accessibility Standard for the purposes of providing instructional materials to blind persons or other persons with print disabilities, in a timely manner after the publication of the National Instructional Materials Accessibility Standard in the Federal Register.

(B) Rights of State educational agency

Nothing in this paragraph shall be construed to require any State educational agency to coordinate with the National Instructional Materials Access Center. If a State educational agency chooses not to coordinate with the National Instructional Materials Access Center, such agency shall provide an assurance to the Secretary that the agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(C) Preparation and delivery of files

If a State educational agency chooses to coordinate with the National Instructional Materials Access Center, not later than 2 years after December 3, 2004, the agency, as part of any print instructional materials adoption process, procurement contract, or other practice or instrument used for purchase of print instructional materials, shall enter into a written contract with the publisher of the print instructional materials to-

(i) require the publisher to prepare and, on or before delivery of the print instructional materials, provide to the National Instructional Materials Access Center electronic files containing the contents of the print instructional materials using the National Instructional Materials Accessibility Standard; or

(ii) purchase instructional materials from the publisher that are produced in, or may be rendered in, specialized formats.

(D) Assistive technology

In carrying out this paragraph, the State educational agency, to the maximum extent possible, shall work collaboratively with the State agency responsible for assistive technology programs.

(E) Definitions

In this paragraph:

(i) National Instructional Materials Access Center

The term "National Instructional Materials Access Center" means the center established pursuant to section 1474(e) of this title.

(ii) National Instructional Materials Accessibility Standard

The term "National Instructional Materials Accessibility Standard" has the meaning given the term in section 1474(e)(3)(A) of this title.

(iii) Specialized formats

The term "specialized formats" has the meaning given the term in section 1474(e)(3)(D) of this title.

(24) Overidentification and disproportionality

The State has in effect, consistent with the purposes of this chapter and with section 1418(d) of this title, policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment described in section 1401 of this title.

(25) Prohibition on mandatory medication

(A) In general

The State educational agency shall prohibit State and local educational agency personnel from requiring a child to obtain a prescription for a substance covered by the Controlled Substances Act ( 21 U.S.C. 801 et seq.) as a condition of attending school, receiving an evaluation under subsection (a) or (c) of section 1414 of this title, or receiving services under this chapter.

(B) Rule of construction

Nothing in subparagraph (A) shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under paragraph (3).

(b) State educational agency as provider of free appropriate public education or direct services

If the State educational agency provides free appropriate public education to children with disabilities, or provides direct services to such children, such agency-

(1) shall comply with any additional requirements of section 1413(a) of this title, as if such agency were a local educational agency; and

(2) may use amounts that are otherwise available to such agency under this subchapter to serve those children without regard to section 1413(a)(2)(A)(i) of this title (relating to excess costs).

(c) Exception for prior State plans

(1) In general

If a State has on file with the Secretary policies and procedures that demonstrate that such State meets any requirement of subsection (a), including any policies and procedures filed under this subchapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall consider such State to have met such requirement for purposes of receiving a grant under this subchapter.

(2) Modifications made by State

Subject to paragraph (3), an application submitted by a State in accordance with this section shall remain in effect until the State submits to the Secretary such modifications as the State determines necessary. This section shall apply to a modification to an application to the same extent and in the same manner as this section applies to the original plan.

(3) Modifications required by the Secretary

If, after the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this chapter are amended (or the regulations developed to carry out this chapter are amended), there is a new interpretation of this chapter by a Federal court or a State's highest court, or there is an official finding of noncompliance with Federal law or regulations, then the Secretary may require a State to modify its application only to the extent necessary to ensure the State's compliance with this subchapter.

(d) Approval by the Secretary

(1) In general

If the Secretary determines that a State is eligible to receive a grant under this subchapter, the Secretary shall notify the State of that determination.

(2) Notice and hearing

The Secretary shall not make a final determination that a State is not eligible to receive a grant under this subchapter until after providing the State-

(A) with reasonable notice; and

(B) with an opportunity for a hearing.

(e) Assistance under other Federal programs

Nothing in this chapter permits a State to reduce medical and other assistance available, or to alter eligibility, under titles V and XIX of the Social Security Act [ 42 U.S.C. 701 et seq., 1396 et seq.] with respect to the provision of a free appropriate public education for children with disabilities in the State.

(f) By-pass for children in private schools

(1) In general

If, on December 2, 1983, a State educational agency was prohibited by law from providing for the equitable participation in special programs of children with disabilities enrolled in private elementary schools and secondary schools as required by subsection (a)(10)(A), or if the Secretary determines that a State educational agency, local educational agency, or other entity has substantially failed or is unwilling to provide for such equitable participation, then the Secretary shall, notwithstanding such provision of law, arrange for the provision of services to such children through arrangements that shall be subject to the requirements of such subsection.

(2) Payments

(A) Determination of amounts

If the Secretary arranges for services pursuant to this subsection, the Secretary, after consultation with the appropriate public and private school officials, shall pay to the provider of such services for a fiscal year an amount per child that does not exceed the amount determined by dividing-

(i) the total amount received by the State under this subchapter for such fiscal year; by

(ii) the number of children with disabilities served in the prior year, as reported to the Secretary by the State under section 1418 of this title.

(B) Withholding of certain amounts

Pending final resolution of any investigation or complaint that may result in a determination under this subsection, the Secretary may withhold from the allocation of the affected State educational agency the amount the Secretary estimates will be necessary to pay the cost of services described in subparagraph (A).

(C) Period of payments

The period under which payments are made under subparagraph (A) shall continue until the Secretary determines that there will no longer be any failure or inability on the part of the State educational agency to meet the requirements of subsection (a)(10)(A).

(3) Notice and hearing

(A) In general

The Secretary shall not take any final action under this subsection until the State educational agency affected by such action has had an opportunity, for not less than 45 days after receiving written notice thereof, to submit written objections and to appear before the Secretary or the Secretary's designee to show cause why such action should not be taken.

(B) Review of action

If a State educational agency is dissatisfied with the Secretary's final action after a proceeding under subparagraph (A), such agency may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings on which the Secretary based the Secretary's action, as provided in section 2112 of title 28.

(C) Review of findings of fact

The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

(D) Jurisdiction of court of appeals; review by United States Supreme Court

Upon the filing of a petition under subparagraph (B), the United States court of appeals shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

( Pub. L. 91-230, title VI, §612, as added Pub. L. 108-446, title I, §101, Dec. 3, 2004, 118 Stat. 2676; amended Pub. L. 114-95, title IX, §§9214(d)(2), 9215(ss)(3), Dec. 10, 2015, 129 Stat. 2164, 2182.)

References in Text

For the effective date of the Individuals with Disabilities Education Improvement Act of 2004, referred to in subsec. (c)(1), (3), see section 302(a), (b) of Pub. L. 108-446, set out as an Effective Date note under section 1400 of this title.

The Social Security Act, referred to in subsec. (e), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and XIX of the Act are classified generally to subchapters V (§701 et seq.) and XIX (§1396 et seq.), respectively, of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Prior Provisions

Another prior section 1412, Pub. L. 91-230, title VI, §612, Apr. 13, 1970, 84 Stat. 178; Pub. L. 92-318, title IV, §421(b)(1)(C), June 23, 1972, 86 Stat. 341; Pub. L. 93-380, title VI, §§614(b), (f)(1), 615(a), title VIII, §843(b), Aug. 21, 1974, 88 Stat. 581, 582, 611; Pub. L. 94-142, §§2(a)(4), (c), (d), 5(a), Nov. 29, 1975, 89 Stat. 773, 774, 780; Pub. L. 98-199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99-457, title II, §203(a), Oct. 8, 1986, 100 Stat. 1158; Pub. L. 100-630, title I, §102(b), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101-476, title IX, §901(b)(33)-(46), (c), Oct. 30, 1990, 104 Stat. 1143, 1144, 1151; Pub. L. 102-119, §25(a)(5), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to eligibility requirements, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Subsec. (a)(14)(C). Pub. L. 114-95, §9214(d)(2)(A), substituted "secondary school-" for "secondary school is highly qualified by the deadline established in section 6319(a)(2) of this title" and added cls. (i) to (iii).

Subsec. (a)(14)(D). Pub. L. 114-95, §9214(d)(2)(B), substituted "personnel who meet the applicable requirements described in this paragraph" for "highly qualified personnel".

Subsec. (a)(14)(E). Pub. L. 114-95, §9214(d)(2)(C), substituted "staff person to meet the applicable requirements described in this paragraph" for "staff person to be highly qualified".

Subsec. (a)(15)(A)(ii). Pub. L. 114-95, §9215(ss)(3)(A)(i), added cl. (ii) and struck out former cl. (ii) which read as follows: "are the same as the State's definition of adequate yearly progress, including the State's objectives for progress by children with disabilities, under section 6311(b)(2)(C) of this title;".

Subsec. (a)(15)(B). Pub. L. 114-95, §9215(ss)(3)(A)(ii), which directed substitution of "including measurements of interim progress for children with disabilities under section 6311(c)(4)(A)(i)" for "including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)", was executed by making the substitution for "including measurable annual objectives for progress by children with disabilities under section 6311(b)(2)(C)(v)(II)(cc)", to reflect the probable intent of Congress.

Subsec. (a)(16)(C)(ii)(I). Pub. L. 114-95, §9215(ss)(3)(B)(i), substituted "challenging State academic content standards under section 6311(b)(1) of this title and alternate academic achievement standards under section 6311(b)(1)(E) of this title" for "State's challenging academic content standards and challenging student academic achievement standards".

Subsec. (a)(16)(C)(ii)(II). Pub. L. 114-95, §9215(ss)(3)(B)(ii), substituted " section 6311(b)(1)(E) of this title," for "the regulations promulgated to carry out section 6311(b)(1) of this title,".

Effective Date of 2015 Amendment

§1413. Local educational agency eligibility

(a) In general

A local educational agency is eligible for assistance under this subchapter for a fiscal year if such agency submits a plan that provides assurances to the State educational agency that the local educational agency meets each of the following conditions:

(1) Consistency with State policies

The local educational agency, in providing for the education of children with disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with the State policies and procedures established under section 1412 of this title.

(2) Use of amounts

(A) In general

Amounts provided to the local educational agency under this subchapter shall be expended in accordance with the applicable provisions of this subchapter and-

(i) shall be used only to pay the excess costs of providing special education and related services to children with disabilities;

(ii) shall be used to supplement State, local, and other Federal funds and not to supplant such funds; and

(iii) shall not be used, except as provided in subparagraphs (B) and (C), to reduce the level of expenditures for the education of children with disabilities made by the local educational agency from local funds below the level of those expenditures for the preceding fiscal year.

(B) Exception

Notwithstanding the restriction in subparagraph (A)(iii), a local educational agency may reduce the level of expenditures where such reduction is attributable to-

(i) the voluntary departure, by retirement or otherwise, or departure for just cause, of special education personnel;

(ii) a decrease in the enrollment of children with disabilities;

(iii) the termination of the obligation of the agency, consistent with this subchapter, to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the State educational agency, because the child-

(I) has left the jurisdiction of the agency;

(II) has reached the age at which the obligation of the agency to provide a free appropriate public education to the child has terminated; or

(III) no longer needs such program of special education; or

(iv) the termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities.

(C) Adjustment to local fiscal effort in certain fiscal years

(i) Amounts in excess

Notwithstanding clauses (ii) and (iii) of subparagraph (A), for any fiscal year for which the allocation received by a local educational agency under section 1411(f) of this title exceeds the amount the local educational agency received for the previous fiscal year, the local educational agency may reduce the level of expenditures otherwise required by subparagraph (A)(iii) by not more than 50 percent of the amount of such excess.

(ii) Use of amounts to carry out activities under ESEA

If a local educational agency exercises the authority under clause (i), the agency shall use an amount of local funds equal to the reduction in expenditures under clause (i) to carry out activities authorized under the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6301 et seq.].

(iii) State prohibition

Notwithstanding clause (i), if a State educational agency determines that a local educational agency is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a) or the State educational agency has taken action against the local educational agency under section 1416 of this title, the State educational agency shall prohibit the local educational agency from reducing the level of expenditures under clause (i) for that fiscal year.

(iv) Special rule

The amount of funds expended by a local educational agency under subsection (f) shall count toward the maximum amount of expenditures such local educational agency may reduce under clause (i).

(D) Schoolwide programs under title I of the ESEA

Notwithstanding subparagraph (A) or any other provision of this subchapter, a local educational agency may use funds received under this subchapter for any fiscal year to carry out a schoolwide program under section 1114 of the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6314], except that the amount so used in any such program shall not exceed-

(i) the number of children with disabilities participating in the schoolwide program; multiplied by

(ii)(I) the amount received by the local educational agency under this subchapter for that fiscal year; divided by

(II) the number of children with disabilities in the jurisdiction of that agency.

(3) Personnel development

The local educational agency shall ensure that all personnel necessary to carry out this subchapter are appropriately and adequately prepared, subject to the requirements of section 1412(a)(14) of this title and section 2102(b) of the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6612(b)].

(4) Permissive use of funds

(A) Uses

Notwithstanding paragraph (2)(A) or section 1412(a)(17)(B) of this title (relating to commingled funds), funds provided to the local educational agency under this subchapter may be used for the following activities:

(i) Services and aids that also benefit nondisabled children

For the costs of special education and related services, and supplementary aids and services, provided in a regular class or other education-related setting to a child with a disability in accordance with the individualized education program of the child, even if 1 or more nondisabled children benefit from such services.

(ii) Early intervening services

To develop and implement coordinated, early intervening educational services in accordance with subsection (f).

(iii) High cost education and related services

To establish and implement cost or risk sharing funds, consortia, or cooperatives for the local educational agency itself, or for local educational agencies working in a consortium of which the local educational agency is a part, to pay for high cost special education and related services.

(B) Administrative case management

A local educational agency may use funds received under this subchapter to purchase appropriate technology for recordkeeping, data collection, and related case management activities of teachers and related services personnel providing services described in the individualized education program of children with disabilities, that is needed for the implementation of such case management activities.

(5) Treatment of charter schools and their students

In carrying out this subchapter with respect to charter schools that are public schools of the local educational agency, the local educational agency-

(A) serves children with disabilities attending those charter schools in the same manner as the local educational agency serves children with disabilities in its other schools, including providing supplementary and related services on site at the charter school to the same extent to which the local educational agency has a policy or practice of providing such services on the site to its other public schools; and

(B) provides funds under this subchapter to those charter schools-

(i) on the same basis as the local educational agency provides funds to the local educational agency's other public schools, including proportional distribution based on relative enrollment of children with disabilities; and

(ii) at the same time as the agency distributes other Federal funds to the agency's other public schools, consistent with the State's charter school law.

(6) Purchase of instructional materials

(A) In general

Not later than 2 years after December 3, 2004, a local educational agency that chooses to coordinate with the National Instructional Materials Access Center, when purchasing print instructional materials, shall acquire the print instructional materials in the same manner and subject to the same conditions as a State educational agency acquires print instructional materials under section 1412(a)(23) of this title.

(B) Rights of local educational agency

Nothing in this paragraph shall be construed to require a local educational agency to coordinate with the National Instructional Materials Access Center. If a local educational agency chooses not to coordinate with the National Instructional Materials Access Center, the local educational agency shall provide an assurance to the State educational agency that the local educational agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(7) Information for State educational agency

The local educational agency shall provide the State educational agency with information necessary to enable the State educational agency to carry out its duties under this subchapter, including, with respect to paragraphs (15) and (16) of section 1412(a) of this title, information relating to the performance of children with disabilities participating in programs carried out under this subchapter.

(8) Public information

The local educational agency shall make available to parents of children with disabilities and to the general public all documents relating to the eligibility of such agency under this subchapter.

(9) Records regarding migratory children with disabilities

The local educational agency shall cooperate in the Secretary's efforts under section 1308 of the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6398] to ensure the linkage of records pertaining to migratory children with a disability for the purpose of electronically exchanging, among the States, health and educational information regarding such children.

(b) Exception for prior local plans

(1) In general

If a local educational agency or State agency has on file with the State educational agency policies and procedures that demonstrate that such local educational agency, or such State agency, as the case may be, meets any requirement of subsection (a), including any policies and procedures filed under this subchapter as in effect before the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the State educational agency shall consider such local educational agency or State agency, as the case may be, to have met such requirement for purposes of receiving assistance under this subchapter.

(2) Modification made by local educational agency

Subject to paragraph (3), an application submitted by a local educational agency in accordance with this section shall remain in effect until the local educational agency submits to the State educational agency such modifications as the local educational agency determines necessary.

(3) Modifications required by State educational agency

If, after the effective date of the Individuals with Disabilities Education Improvement Act of 2004, the provisions of this chapter are amended (or the regulations developed to carry out this chapter are amended), there is a new interpretation of this chapter by Federal or State courts, or there is an official finding of noncompliance with Federal or State law or regulations, then the State educational agency may require a local educational agency to modify its application only to the extent necessary to ensure the local educational agency's compliance with this subchapter or State law.

(c) Notification of local educational agency or State agency in case of ineligibility

If the State educational agency determines that a local educational agency or State agency is not eligible under this section, then the State educational agency shall notify the local educational agency or State agency, as the case may be, of that determination and shall provide such local educational agency or State agency with reasonable notice and an opportunity for a hearing.

(d) Local educational agency compliance

(1) In general

If the State educational agency, after reasonable notice and an opportunity for a hearing, finds that a local educational agency or State agency that has been determined to be eligible under this section is failing to comply with any requirement described in subsection (a), the State educational agency shall reduce or shall not provide any further payments to the local educational agency or State agency until the State educational agency is satisfied that the local educational agency or State agency, as the case may be, is complying with that requirement.

(2) Additional requirement

Any State agency or local educational agency in receipt of a notice described in paragraph (1) shall, by means of public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the jurisdiction of such agency.

(3) Consideration

In carrying out its responsibilities under paragraph (1), the State educational agency shall consider any decision made in a hearing held under section 1415 of this title that is adverse to the local educational agency or State agency involved in that decision.

(e) Joint establishment of eligibility

(1) Joint establishment

(A) In general

A State educational agency may require a local educational agency to establish its eligibility jointly with another local educational agency if the State educational agency determines that the local educational agency will be ineligible under this section because the local educational agency will not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities.

(B) Charter school exception

A State educational agency may not require a charter school that is a local educational agency to jointly establish its eligibility under subparagraph (A) unless the charter school is explicitly permitted to do so under the State's charter school law.

(2) Amount of payments

If a State educational agency requires the joint establishment of eligibility under paragraph (1), the total amount of funds made available to the affected local educational agencies shall be equal to the sum of the payments that each such local educational agency would have received under section 1411(f) of this title if such agencies were eligible for such payments.

(3) Requirements

Local educational agencies that establish joint eligibility under this subsection shall-

(A) adopt policies and procedures that are consistent with the State's policies and procedures under section 1412(a) of this title; and

(B) be jointly responsible for implementing programs that receive assistance under this subchapter.

(4) Requirements for educational service agencies

(A) In general

If an educational service agency is required by State law to carry out programs under this subchapter, the joint responsibilities given to local educational agencies under this subsection shall-

(i) not apply to the administration and disbursement of any payments received by that educational service agency; and

(ii) be carried out only by that educational service agency.

(B) Additional requirement

Notwithstanding any other provision of this subsection, an educational service agency shall provide for the education of children with disabilities in the least restrictive environment, as required by section 1412(a)(5) of this title.

(f) Early intervening services

(1) In general

A local educational agency may not use more than 15 percent of the amount such agency receives under this subchapter for any fiscal year, less any amount reduced by the agency pursuant to subsection (a)(2)(C), if any, in combination with other amounts (which may include amounts other than education funds), to develop and implement coordinated, early intervening services, which may include interagency financing structures, for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment.

(2) Activities

In implementing coordinated, early intervening services under this subsection, a local educational agency may carry out activities that include-

(A) professional development (which may be provided by entities other than local educational agencies) for teachers and other school staff to enable such personnel to deliver scientifically based academic instruction and behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on the use of adaptive and instructional software; and

(B) providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction.

(3) Construction

Nothing in this subsection shall be construed to limit or create a right to a free appropriate public education under this subchapter.

(4) Reporting

Each local educational agency that develops and maintains coordinated, early intervening services under this subsection shall annually report to the State educational agency on-

(A) the number of students served under this subsection; and

(B) the number of students served under this subsection who subsequently receive special education and related services under this chapter during the preceding 2-year period.

(5) Coordination with Elementary and Secondary Education Act of 1965

Funds made available to carry out this subsection may be used to carry out coordinated, early intervening services aligned with activities funded by, and carried out under, the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6301 et seq.] if such funds are used to supplement, and not supplant, funds made available under the Elementary and Secondary Education Act of 1965 for the activities and services assisted under this subsection.

(g) Direct services by the State educational agency

(1) In general

A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State educational agency determines that the local educational agency or State agency, as the case may be-

(A) has not provided the information needed to establish the eligibility of such local educational agency or State agency under this section;

(B) is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a);

(C) is unable or unwilling to be consolidated with 1 or more local educational agencies in order to establish and maintain such programs; or

(D) has 1 or more children with disabilities who can best be served by a regional or State program or service delivery system designed to meet the needs of such children.

(2) Manner and location of education and services

The State educational agency may provide special education and related services under paragraph (1) in such manner and at such locations (including regional or State centers) as the State educational agency considers appropriate. Such education and services shall be provided in accordance with this subchapter.

(h) State agency eligibility

Any State agency that desires to receive a subgrant for any fiscal year under section 1411(f) of this title shall demonstrate to the satisfaction of the State educational agency that-

(1) all children with disabilities who are participating in programs and projects funded under this subchapter receive a free appropriate public education, and that those children and their parents are provided all the rights and procedural safeguards described in this subchapter; and

(2) the agency meets such other conditions of this section as the Secretary determines to be appropriate.

(i) Disciplinary information

The State may require that a local educational agency include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit such statement to the same extent that such disciplinary information is included in, and transmitted with, the student records of nondisabled children. The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child. If the State adopts such a policy, and the child transfers from 1 school to another, the transmission of any of the child's records shall include both the child's current individualized education program and any such statement of current or previous disciplinary action that has been taken against the child.

(j) State agency flexibility

(1) Adjustment to State fiscal effort in certain fiscal years

For any fiscal year for which the allotment received by a State under section 1411 of this title exceeds the amount the State received for the previous fiscal year and if the State in school year 2003-2004 or any subsequent school year pays or reimburses all local educational agencies within the State from State revenue 100 percent of the non-Federal share of the costs of special education and related services, the State educational agency, notwithstanding paragraphs (17) and (18) of section 1412(a) of this title and section 1412(b) of this title, may reduce the level of expenditures from State sources for the education of children with disabilities by not more than 50 percent of the amount of such excess.

(2) Prohibition

Notwithstanding paragraph (1), if the Secretary determines that a State educational agency is unable to establish, maintain, or oversee programs of free appropriate public education that meet the requirements of this subchapter, or that the State needs assistance, intervention, or substantial intervention under section 1416(d)(2)(A) of this title, the Secretary shall prohibit the State educational agency from exercising the authority in paragraph (1).

(3) Education activities

If a State educational agency exercises the authority under paragraph (1), the agency shall use funds from State sources, in an amount equal to the amount of the reduction under paragraph (1), to support activities authorized under the Elementary and Secondary Education Act of 1965 [ 20 U.S.C. 6301 et seq.] or to support need based student or teacher higher education programs.

(4) Report

For each fiscal year for which a State educational agency exercises the authority under paragraph (1), the State educational agency shall report to the Secretary the amount of expenditures reduced pursuant to such paragraph and the activities that were funded pursuant to paragraph (3).

(5) Limitation

Notwithstanding paragraph (1), a State educational agency may not reduce the level of expenditures described in paragraph (1) if any local educational agency in the State would, as a result of such reduction, receive less than 100 percent of the amount necessary to ensure that all children with disabilities served by the local educational agency receive a free appropriate public education from the combination of Federal funds received under this chapter and State funds received from the State educational agency.

References in Text

For the effective date of the Individuals with Disabilities Education Improvement Act of 2004, referred to in subsec. (b)(1), (3), see section 302(a), (b) of Pub. L. 108-446, set out as an Effective Date note under section 1400 of this title.

Prior Provisions

Another prior section 1413, Pub. L. 91-230, title VI, §613, Apr. 13, 1970, 84 Stat. 179; Pub. L. 93-380, title VI, §§614(c), (d), 615(b), (c), title VIII, §843(b)(2), Aug. 21, 1974, 88 Stat. 581, 583, 611; Pub. L. 94-142, §5(a), Nov. 29, 1975, 89 Stat. 782; Pub. L. 98-199, §§3(b), 7, Dec. 2, 1983, 97 Stat. 1358, 1359; Pub. L. 99-457, title II, §203(b), title IV, §405, Oct. 8, 1986, 100 Stat. 1159, 1174; Pub. L. 100-630, title I, §102(c), Nov. 7, 1988, 102 Stat. 3291; Pub. L. 101-476, title II, §202, title IX, §901(b)(47)-(58), Oct. 30, 1990, 104 Stat. 1111, 1144; Pub. L. 102-119, §§5, 25(a)(6), (b), Oct. 7, 1991, 105 Stat. 591, 606, 607; Pub. L. 103-382, title III, §391(f)(2), Oct. 20, 1994, 108 Stat. 4023, related to requisite features of a State plan, approval of State plan by Secretary, and participation of children with disabilities enrolled in private schools, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Subsec. (a)(3). Pub. L. 114-95 substituted "subject to the requirements of section 1412(a)(14) of this title and section 2102(b) of the Elementary and Secondary Education Act of 1965" for "subject to the requirements of section 1412(a)(14) of this title and section 2122 of the Elementary and Secondary Education Act of 1965".

Effective Date of 2015 Amendment

§1414. Evaluations, eligibility determinations, individualized education programs, and educational placements

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general

A State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter.

(B) Request for initial evaluation

Consistent with subparagraph (D), either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.

(C) Procedures

(i) In general

Such initial evaluation shall consist of procedures-

(I) to determine whether a child is a child with a disability (as defined in 1401 of this title) within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and

(II) to determine the educational needs of such child.

(ii) Exception

The relevant timeframe in clause (i)(I) shall not apply to a local educational agency if-

(I) a child enrolls in a school served by the local educational agency after the relevant timeframe in clause (i)(I) has begun and prior to a determination by the child's previous local educational agency as to whether the child is a child with a disability (as defined in section 1401 of this title), but only if the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent local educational agency agree to a specific time when the evaluation will be completed; or

(II) the parent of a child repeatedly fails or refuses to produce the child for the evaluation.

(D) Parental consent

(i) In general

(I) Consent for initial evaluation

The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 1401 of this title shall obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

(II) Consent for services

An agency that is responsible for making a free appropriate public education available to a child with a disability under this subchapter shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.

(ii) Absence of consent

(I) For initial evaluation

If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 1415 of this title, except to the extent inconsistent with State law relating to such parental consent.

(II) For services

If the parent of such child refuses to consent to services under clause (i)(II), the local educational agency shall not provide special education and related services to the child by utilizing the procedures described in section 1415 of this title.

(III) Effect on agency obligations

If the parent of such child refuses to consent to the receipt of special education and related services, or the parent fails to respond to a request to provide such consent-

(aa) the local educational agency shall not be considered to be in violation of the requirement to make available a free appropriate public education to the child for the failure to provide such child with the special education and related services for which the local educational agency requests such consent; and

(bb) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child for the special education and related services for which the local educational agency requests such consent.

(iii) Consent for wards of the State

(I) In general

If the child is a ward of the State and is not residing with the child's parent, the agency shall make reasonable efforts to obtain the informed consent from the parent (as defined in section 1401 of this title) of the child for an initial evaluation to determine whether the child is a child with a disability.

(II) Exception

The agency shall not be required to obtain informed consent from the parent of a child for an initial evaluation to determine whether the child is a child with a disability if-

(aa) despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;

(bb) the rights of the parents of the child have been terminated in accordance with State law; or

(cc) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

(E) Rule of construction

The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

(2) Reevaluations

(A) In general

A local educational agency shall ensure that a reevaluation of each child with a disability is conducted in accordance with subsections (b) and (c)-

(i) if the local educational agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(ii) if the child's parents or teacher requests a reevaluation.

(B) Limitation

A reevaluation conducted under subparagraph (A) shall occur-

(i) not more frequently than once a year, unless the parent and the local educational agency agree otherwise; and

(ii) at least once every 3 years, unless the parent and the local educational agency agree that a reevaluation is unnecessary.

(b) Evaluation procedures

(1) Notice

The local educational agency shall provide notice to the parents of a child with a disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 1415 of this title, that describes any evaluation procedures such agency proposes to conduct.

(2) Conduct of evaluation

In conducting the evaluation, the local educational agency shall-

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining-

(i) whether the child is a child with a disability; and

(ii) the content of the child's individualized education program, including information related to enabling the child to be involved in and progress in the general education curriculum, or, for preschool children, to participate in appropriate activities;

(B) not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(3) Additional requirements

Each local educational agency shall ensure that-

(A) assessments and other evaluation materials used to assess a child under this section-

(i) are selected and administered so as not to be discriminatory on a racial or cultural basis;

(ii) are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer;

(iii) are used for purposes for which the assessments or measures are valid and reliable;

(iv) are administered by trained and knowledgeable personnel; and

(v) are administered in accordance with any instructions provided by the producer of such assessments;

(B) the child is assessed in all areas of suspected disability;

(C) assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided; and

(D) assessments of children with disabilities who transfer from 1 school district to another school district in the same academic year are coordinated with such children's prior and subsequent schools, as necessary and as expeditiously as possible, to ensure prompt completion of full evaluations.

(4) Determination of eligibility and educational need

Upon completion of the administration of assessments and other evaluation measures-

(A) the determination of whether the child is a child with a disability as defined in section 1401(3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and

(B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent.

(5) Special rule for eligibility determination

In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is-

(A) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 6368(3) of this title, as such section was in effect on the day before December 10, 2015);

(B) lack of instruction in math; or

(C) limited English proficiency.

(6) Specific learning disabilities

(A) In general

Notwithstanding section 1406(b) of this title, when determining whether a child has a specific learning disability as defined in section 1401 of this title, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

(B) Additional authority

In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures described in paragraphs (2) and (3).

(c) Additional requirements for evaluation and reevaluations

(1) Review of existing evaluation data

As part of an initial evaluation (if appropriate) and as part of any reevaluation under this section, the IEP Team and other qualified professionals, as appropriate, shall-

(A) review existing evaluation data on the child, including-

(i) evaluations and information provided by the parents of the child;

(ii) current classroom-based, local, or State assessments, and classroom-based observations; and

(iii) observations by teachers and related services providers; and

(B) on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine-

(i) whether the child is a child with a disability as defined in section 1401(3) of this title, and the educational needs of the child, or, in case of a reevaluation of a child, whether the child continues to have such a disability and such educational needs;

(ii) the present levels of academic achievement and related developmental needs of the child;

(iii) whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and

(iv) whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the individualized education program of the child and to participate, as appropriate, in the general education curriculum.

(2) Source of data

The local educational agency shall administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP Team under paragraph (1)(B).

(3) Parental consent

Each local educational agency shall obtain informed parental consent, in accordance with subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability, except that such informed parental consent need not be obtained if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the child's parent has failed to respond.

(4) Requirements if additional data are not needed

If the IEP Team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the child continues to be a child with a disability and to determine the child's educational needs, the local educational agency-

(A) shall notify the child's parents of-

(i) that determination and the reasons for the determination; and

(ii) the right of such parents to request an assessment to determine whether the child continues to be a child with a disability and to determine the child's educational needs; and

(B) shall not be required to conduct such an assessment unless requested to by the child's parents.

(5) Evaluations before change in eligibility

(A) In general

Except as provided in subparagraph (B), a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

(B) Exception

(i) In general

The evaluation described in subparagraph (A) shall not be required before the termination of a child's eligibility under this subchapter due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a free appropriate public education under State law.

(ii) Summary of performance

For a child whose eligibility under this subchapter terminates under circumstances described in clause (i), a local educational agency shall provide the child with a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals.

(d) Individualized education programs

(1) Definitions

In this chapter:

(A) Individualized education program

(i) In general

The term "individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with this section and that includes-

(I) a statement of the child's present levels of academic achievement and functional performance, including-

(aa) how the child's disability affects the child's involvement and progress in the general education curriculum;

(bb) for preschool children, as appropriate, how the disability affects the child's participation in appropriate activities; and

(cc) for children with disabilities who take alternate assessments aligned to alternate achievement standards, a description of benchmarks or short-term objectives;

(II) a statement of measurable annual goals, including academic and functional goals, designed to-

(aa) meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and

(bb) meet each of the child's other educational needs that result from the child's disability;

(III) a description of how the child's progress toward meeting the annual goals described in subclause (II) will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;

(IV) a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child-

(aa) to advance appropriately toward attaining the annual goals;

(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and

(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

(V) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in subclause (IV)(cc);

(VI)(aa) a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments consistent with section 1412(a)(16)(A) of this title; and

(bb) if the IEP Team determines that the child shall take an alternate assessment on a particular State or districtwide assessment of student achievement, a statement of why-

(AA) the child cannot participate in the regular assessment; and

(BB) the particular alternate assessment selected is appropriate for the child;

(VII) the projected date for the beginning of the services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications; and

(VIII) beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter-

(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills;

(bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and

(cc) beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under this chapter, if any, that will transfer to the child on reaching the age of majority under section 1415(m) of this title.

(ii) Rule of construction

Nothing in this section shall be construed to require-

(I) that additional information be included in a child's IEP beyond what is explicitly required in this section; and

(II) the IEP Team to include information under 1 component of a child's IEP that is already contained under another component of such IEP.

(B) Individualized education program team

The term "individualized education program team" or "IEP Team" means a group of individuals composed of-

(i) the parents of a child with a disability;

(ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

(iii) not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;

(iv) a representative of the local educational agency who-

(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(II) is knowledgeable about the general education curriculum; and

(III) is knowledgeable about the availability of resources of the local educational agency;

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(vii) whenever appropriate, the child with a disability.

(C) IEP Team attendance

(i) Attendance not necessary

A member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.

(ii) Excusal

A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if-

(I) the parent and the local educational agency consent to the excusal; and

(II) the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.

(iii) Written agreement and consent required

A parent's agreement under clause (i) and consent under clause (ii) shall be in writing.

(D) IEP Team transition

In the case of a child who was previously served under subchapter III, an invitation to the initial IEP meeting shall, at the request of the parent, be sent to the subchapter III service coordinator or other representatives of the subchapter III system to assist with the smooth transition of services.

(2) Requirement that program be in effect

(A) In general

At the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in the agency's jurisdiction, an individualized education program, as defined in paragraph (1)(A).

(B) Program for child aged 3 through 5

In the case of a child with a disability aged 3 through 5 (or, at the discretion of the State educational agency, a 2-year-old child with a disability who will turn age 3 during the school year), the IEP Team shall consider the individualized family service plan that contains the material described in section 1436 of this title, and that is developed in accordance with this section, and the individualized family service plan may serve as the IEP of the child if using that plan as the IEP is-

(i) consistent with State policy; and

(ii) agreed to by the agency and the child's parents.

(C) Program for children who transfer school districts

(i) In general

(I) Transfer within the same State

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.

(II) Transfer outside State

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency conducts an evaluation pursuant to subsection (a)(1), if determined to be necessary by such agency, and develops a new IEP, if appropriate, that is consistent with Federal and State law.

(ii) Transmittal of records

To facilitate the transition for a child described in clause (i)-

(I) the new school in which the child enrolls shall take reasonable steps to promptly obtain the child's records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous school in which the child was enrolled, pursuant to section 99.31(a)(2) of title 34, Code of Federal Regulations; and

(II) the previous school in which the child was enrolled shall take reasonable steps to promptly respond to such request from the new school.

(3) Development of IEP

(A) In general

In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider-

(i) the strengths of the child;

(ii) the concerns of the parents for enhancing the education of their child;

(iii) the results of the initial evaluation or most recent evaluation of the child; and

(iv) the academic, developmental, and functional needs of the child.

(B) Consideration of special factors

The IEP Team shall-

(i) in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

(ii) in the case of a child with limited English proficiency, consider the language needs of the child as such needs relate to the child's IEP;

(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

(iv) consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode; and

(v) consider whether the child needs assistive technology devices and services.

(C) Requirement with respect to regular education teacher

A regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports, and other strategies, and the determination of supplementary aids and services, program modifications, and support for school personnel consistent with paragraph (1)(A)(i)(IV).

(D) Agreement

In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP.

(E) Consolidation of IEP Team meetings

To the extent possible, the local educational agency shall encourage the consolidation of reevaluation meetings for the child and other IEP Team meetings for the child.

(F) Amendments

Changes to the IEP may be made either by the entire IEP Team or, as provided in subparagraph (D), by amending the IEP rather than by redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated.

(4) Review and revision of IEP

(A) In general

The local educational agency shall ensure that, subject to subparagraph (B), the IEP Team-

(i) reviews the child's IEP periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved; and

(ii) revises the IEP as appropriate to address-

(I) any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate;

(II) the results of any reevaluation conducted under this section;

(III) information about the child provided to, or by, the parents, as described in subsection (c)(1)(B);

(IV) the child's anticipated needs; or

(V) other matters.

(B) Requirement with respect to regular education teacher

A regular education teacher of the child, as a member of the IEP Team, shall, consistent with paragraph (1)(C), participate in the review and revision of the IEP of the child.

(5) Multi-year IEP demonstration

(A) Pilot program

(i) Purpose

The purpose of this paragraph is to provide an opportunity for States to allow parents and local educational agencies the opportunity for long-term planning by offering the option of developing a comprehensive multi-year IEP, not to exceed 3 years, that is designed to coincide with the natural transition points for the child.

(ii) Authorization

In order to carry out the purpose of this paragraph, the Secretary is authorized to approve not more than 15 proposals from States to carry out the activity described in clause (i).

(iii) Proposal

(I) In general

A State desiring to participate in the program under this paragraph shall submit a proposal to the Secretary at such time and in such manner as the Secretary may reasonably require.

(II) Content

The proposal shall include-

(aa) assurances that the development of a multi-year IEP under this paragraph is optional for parents;

(bb) assurances that the parent is required to provide informed consent before a comprehensive multi-year IEP is developed;

(cc) a list of required elements for each multi-year IEP, including-

(AA) measurable goals pursuant to paragraph (1)(A)(i)(II), coinciding with natural transition points for the child, that will enable the child to be involved in and make progress in the general education curriculum and that will meet the child's other needs that result from the child's disability; and

(BB) measurable annual goals for determining progress toward meeting the goals described in subitem (AA); and

(dd) a description of the process for the review and revision of each multi-year IEP, including-

(AA) a review by the IEP Team of the child's multi-year IEP at each of the child's natural transition points;

(BB) in years other than a child's natural transition points, an annual review of the child's IEP to determine the child's current levels of progress and whether the annual goals for the child are being achieved, and a requirement to amend the IEP, as appropriate, to enable the child to continue to meet the measurable goals set out in the IEP;

(CC) if the IEP Team determines on the basis of a review that the child is not making sufficient progress toward the goals described in the multi-year IEP, a requirement that the local educational agency shall ensure that the IEP Team carries out a more thorough review of the IEP in accordance with paragraph (4) within 30 calendar days; and

(DD) at the request of the parent, a requirement that the IEP Team shall conduct a review of the child's multi-year IEP rather than or subsequent to an annual review.

(B) Report

Beginning 2 years after December 3, 2004, the Secretary shall submit an annual report to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate regarding the effectiveness of the program under this paragraph and any specific recommendations for broader implementation of such program, including-

(i) reducing-

(I) the paperwork burden on teachers, principals, administrators, and related service providers; and

(II) noninstructional time spent by teachers in complying with this subchapter;

(ii) enhancing longer-term educational planning;

(iii) improving positive outcomes for children with disabilities;

(iv) promoting collaboration between IEP Team members; and

(v) ensuring satisfaction of family members.

(C) Definition

In this paragraph, the term "natural transition points" means those periods that are close in time to the transition of a child with a disability from preschool to elementary grades, from elementary grades to middle or junior high school grades, from middle or junior high school grades to secondary school grades, and from secondary school grades to post-secondary activities, but in no case a period longer than 3 years.

(6) Failure to meet transition objectives

If a participating agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(i)(VIII), the local educational agency shall reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in the IEP.

(7) Children with disabilities in adult prisons

(A) In general

The following requirements shall not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:

(i) The requirements contained in section 1412(a)(16) of this title and paragraph (1)(A)(i)(VI) (relating to participation of children with disabilities in general assessments).

(ii) The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VIII) (relating to transition planning and transition services), do not apply with respect to such children whose eligibility under this subchapter will end, because of such children's age, before such children will be released from prison.

(B) Additional requirement

If a child with a disability is convicted as an adult under State law and incarcerated in an adult prison, the child's IEP Team may modify the child's IEP or placement notwithstanding the requirements of sections 1412(a)(5)(A) of this title and paragraph (1)(A) if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

(e) Educational placements

Each local educational agency or State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.

(f) Alternative means of meeting participation

When conducting IEP team meetings and placement meetings pursuant to this section, section 1415(e) of this title, and section 1415(f)(1)(B) of this title, and carrying out administrative matters under section 1415 of this title (such as scheduling, exchange of witness lists, and status conferences), the parent of a child with a disability and a local educational agency may agree to use alternative means of meeting participation, such as video conferences and conference calls.

References in Text

Section 6368(3) of this title, as such section was in effect on the day before December 10, 2015, referred to in subsec. (b)(5)(A), means section 6368(3) of this title prior to being omitted in the general amendment of part B of subchapter I of chapter 70 of this title by Pub. L. 114-95, title I, §1201, Dec. 10, 2015, 129 Stat. 1879.

Prior Provisions

A prior section 1414a, Pub. L. 91-230, title VI, §614A, as added Pub. L. 103-382, title III, §312, Oct. 20, 1994, 108 Stat. 3934, which related to treatment of State agencies that received funds for fiscal year 1994 under subpart 2 of part D of chapter 1 of title I of the Elementary and Secondary Education Act of 1965 (as in existence on the day preceding Oct. 20, 1994), was omitted in the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Amendments

2015-Subsec. (b)(5)(A). Pub. L. 114-95 inserted ", as such section was in effect on the day before December 10, 2015" after "of this title".

Change of Name

Committee on Education and the Workforce of House of Representatives changed to Committee on Education and Labor of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2015 Amendment

§1415. Procedural safeguards

(a) Establishment of procedures

Any State educational agency, State agency, or local educational agency that receives assistance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.

(b) Types of procedures

The procedures required by this section shall include the following:

(1) An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.

(2)(A) Procedures to protect the rights of the child whenever the parents of the child are not known, the agency cannot, after reasonable efforts, locate the parents, or the child is a ward of the State, including the assignment of an individual to act as a surrogate for the parents, which surrogate shall not be an employee of the State educational agency, the local educational agency, or any other agency that is involved in the education or care of the child. In the case of-

(i) a child who is a ward of the State, such surrogate may alternatively be appointed by the judge overseeing the child's care provided that the surrogate meets the requirements of this paragraph; and

(ii) an unaccompanied homeless youth as defined in section 11434a(6) of title 42, the local educational agency shall appoint a surrogate in accordance with this paragraph.

(B) The State shall make reasonable efforts to ensure the assignment of a surrogate not more than 30 days after there is a determination by the agency that the child needs a surrogate.

(3) Written prior notice to the parents of the child, in accordance with subsection (c)(1), whenever the local educational agency-

(A) proposes to initiate or change; or

(B) refuses to initiate or change,

the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.

(4) Procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so.

(5) An opportunity for mediation, in accordance with subsection (e).

(6) An opportunity for any party to present a complaint-

(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and

(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.

(7)(A) Procedures that require either party, or the attorney representing a party, to provide due process complaint notice in accordance with subsection (c)(2) (which shall remain confidential)-

(i) to the other party, in the complaint filed under paragraph (6), and forward a copy of such notice to the State educational agency; and

(ii) that shall include-

(I) the name of the child, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending;

(II) in the case of a homeless child or youth (within the meaning of section 11434a(2) of title 42), available contact information for the child and the name of the school the child is attending;

(III) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

(IV) a proposed resolution of the problem to the extent known and available to the party at the time.

(B) A requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of subparagraph (A)(ii).

(8) Procedures that require the State educational agency to develop a model form to assist parents in filing a complaint and due process complaint notice in accordance with paragraphs (6) and (7), respectively.

(c) Notification requirements

(1) Content of prior written notice

The notice required by subsection (b)(3) shall include-

(A) a description of the action proposed or refused by the agency;

(B) an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;

(C) a statement that the parents of a child with a disability have protection under the procedural safeguards of this subchapter and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(D) sources for parents to contact to obtain assistance in understanding the provisions of this subchapter;

(E) a description of other options considered by the IEP Team and the reason why those options were rejected; and

(F) a description of the factors that are relevant to the agency's proposal or refusal.

(2) Due process complaint notice

(A) Complaint

The due process complaint notice required under subsection (b)(7)(A) shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the requirements of subsection (b)(7)(A).

(B) Response to complaint

(i) Local educational agency response

(I) In general

If the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent's due process complaint notice, such local educational agency shall, within 10 days of receiving the complaint, send to the parent a response that shall include-

(aa) an explanation of why the agency proposed or refused to take the action raised in the complaint;

(bb) a description of other options that the IEP Team considered and the reasons why those options were rejected;

(cc) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

(dd) a description of the factors that are relevant to the agency's proposal or refusal.

(II) Sufficiency

A response filed by a local educational agency pursuant to subclause (I) shall not be construed to preclude such local educational agency from asserting that the parent's due process complaint notice was insufficient where appropriate.

(ii) Other party response

Except as provided in clause (i), the non-complaining party shall, within 10 days of receiving the complaint, send to the complaint a response that specifically addresses the issues raised in the complaint.

(C) Timing

The party providing a hearing officer notification under subparagraph (A) shall provide the notification within 15 days of receiving the complaint.

(D) Determination

Within 5 days of receipt of the notification provided under subparagraph (C), the hearing officer shall make a determination on the face of the notice of whether the notification meets the requirements of subsection (b)(7)(A), and shall immediately notify the parties in writing of such determination.

(E) Amended complaint notice

(i) In general

A party may amend its due process complaint notice only if-

(I) the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting held pursuant to subsection (f)(1)(B); or

(II) the hearing officer grants permission, except that the hearing officer may only grant such permission at any time not later than 5 days before a due process hearing occurs.

(ii) Applicable timeline

The applicable timeline for a due process hearing under this subchapter shall recommence at the time the party files an amended notice, including the timeline under subsection (f)(1)(B).

(d) Procedural safeguards notice

(1) In general

(A) Copy to parents

A copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents only 1 time a year, except that a copy also shall be given to the parents-

(i) upon initial referral or parental request for evaluation;

(ii) upon the first occurrence of the filing of a complaint under subsection (b)(6); and

(iii) upon request by a parent.

(B) Internet website

A local educational agency may place a current copy of the procedural safeguards notice on its Internet website if such website exists.

(2) Contents

The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents (unless it clearly is not feasible to do so) and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to-

(A) independent educational evaluation;

(B) prior written notice;

(C) parental consent;

(D) access to educational records;

(E) the opportunity to present and resolve complaints, including-

(i) the time period in which to make a complaint;

(ii) the opportunity for the agency to resolve the complaint; and

(iii) the availability of mediation;

(F) the child's placement during pendency of due process proceedings;

(G) procedures for students who are subject to placement in an interim alternative educational setting;

(H) requirements for unilateral placement by parents of children in private schools at public expense;

(I) due process hearings, including requirements for disclosure of evaluation results and recommendations;

(J) State-level appeals (if applicable in that State);

(K) civil actions, including the time period in which to file such actions; and

(L) attorneys' fees.

(e) Mediation

(1) In general

Any State educational agency or local educational agency that receives assistance under this subchapter shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint pursuant to subsection (b)(6), to resolve such disputes through a mediation process.

(2) Requirements

Such procedures shall meet the following requirements:

(A) The procedures shall ensure that the mediation process-

(i) is voluntary on the part of the parties;

(ii) is not used to deny or delay a parent's right to a due process hearing under subsection (f), or to deny any other rights afforded under this subchapter; and

(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(B) Opportunity to meet with a disinterested party.-A local educational agency or a State agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with-

(i) a parent training and information center or community parent resource center in the State established under section 1471 or 1472 of this title; or

(ii) an appropriate alternative dispute resolution entity,

to encourage the use, and explain the benefits, of the mediation process to the parents.

(C) List of qualified mediators.-The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

(D) Costs.-The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).

(E) Scheduling and location.-Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.

(F) Written agreement.-In the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that-

(i) states that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding;

(ii) is signed by both the parent and a representative of the agency who has the authority to bind such agency; and

(iii) is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(G) Mediation discussions.-Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.

(f) Impartial due process hearing

(1) In general

(A) Hearing

Whenever a complaint has been received under subsection (b)(6) or (k), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency.

(B) Resolution session

(i) Preliminary meeting

Prior to the opportunity for an impartial due process hearing under subparagraph (A), the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint-

(I) within 15 days of receiving notice of the parents' complaint;

(II) which shall include a representative of the agency who has decisionmaking authority on behalf of such agency;

(III) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and

(IV) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint,

unless the parents and the local educational agency agree in writing to waive such meeting, or agree to use the mediation process described in subsection (e).

(ii) Hearing

If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this subchapter shall commence.

(iii) Written settlement agreement

In the case that a resolution is reached to resolve the complaint at a meeting described in clause (i), the parties shall execute a legally binding agreement that is-

(I) signed by both the parent and a representative of the agency who has the authority to bind such agency; and

(II) enforceable in any State court of competent jurisdiction or in a district court of the United States.

(iv) Review period

If the parties execute an agreement pursuant to clause (iii), a party may void such agreement within 3 business days of the agreement's execution.

(2) Disclosure of evaluations and recommendations

(A) In general

Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.

(B) Failure to disclose

A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(3) Limitations on hearing

(A) Person conducting hearing

A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum-

(i) not be-

(I) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or

(II) a person having a personal or professional interest that conflicts with the person's objectivity in the hearing;

(ii) possess knowledge of, and the ability to understand, the provisions of this chapter, Federal and State regulations pertaining to this chapter, and legal interpretations of this chapter by Federal and State courts;

(iii) possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(B) Subject matter of hearing

The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.

(C) Timeline for requesting hearing

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

(D) Exceptions to the timeline

The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to-

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent.

(E) Decision of hearing officer

(i) In general

Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.

(ii) Procedural issues

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-

(I) impeded the child's right to a free appropriate public education;

(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or

(III) caused a deprivation of educational benefits.

(iii) Rule of construction

Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section.

(F) Rule of construction

Nothing in this paragraph shall be construed to affect the right of a parent to file a complaint with the State educational agency.

(g) Appeal

(1) In general

If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.

(2) Impartial review and independent decision

The State educational agency shall conduct an impartial review of the findings and decision appealed under paragraph (1). The officer conducting such review shall make an independent decision upon completion of such review.

(h) Safeguards

Any party to a hearing conducted pursuant to subsection (f) or (k), or an appeal conducted pursuant to subsection (g), shall be accorded-

(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and

(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions, which findings and decisions-

(A) shall be made available to the public consistent with the requirements of section 1417(b) of this title (relating to the confidentiality of data, information, and records); and

(B) shall be transmitted to the advisory panel established pursuant to section 1412(a)(21) of this title.

(i) Administrative procedures

(1) In general

(A) Decision made in hearing

A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2).

(B) Decision made at appeal

A decision made under subsection (g) shall be final, except that any party may bring an action under paragraph (2).

(2) Right to bring civil action

(A) In general

Any party aggrieved by the findings and decision made under subsection (f) or (k) who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.

(B) Limitation

The party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this subchapter, in such time as the State law allows.

(C) Additional requirements

In any action brought under this paragraph, the court-

(i) shall receive the records of the administrative proceedings;

(ii) shall hear additional evidence at the request of a party; and

(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

(3) Jurisdiction of district courts; attorneys' fees

(A) In general

The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy.

(B) Award of attorneys' fees

(i) In general

In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs-

(I) to a prevailing party who is the parent of a child with a disability;

(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

(ii) Rule of construction

Nothing in this subparagraph shall be construed to affect section 327 of the District of Columbia Appropriations Act, 2005.

(C) Determination of amount of attorneys' fees

Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection.

(D) Prohibition of attorneys' fees and related costs for certain services

(i) In general

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if-

(I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;

(II) the offer is not accepted within 10 days; and

(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(ii) IEP Team meetings

Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e).

(iii) Opportunity to resolve complaints

A meeting conducted pursuant to subsection (f)(1)(B)(i) shall not be considered-

(I) a meeting convened as a result of an administrative hearing or judicial action; or

(II) an administrative hearing or judicial action for purposes of this paragraph.

(E) Exception to prohibition on attorneys' fees and related costs

Notwithstanding subparagraph (D), an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

(F) Reduction in amount of attorneys' fees

Except as provided in subparagraph (G), whenever the court finds that-

(i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;

(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(iv) the attorney representing the parent did not provide to the local educational agency the appropriate information in the notice of the complaint described in subsection (b)(7)(A),

the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this section.

(G) Exception to reduction in amount of attorneys' fees

The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.

(j) Maintenance of current educational placement

Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

(k) Placement in alternative educational setting

(1) Authority of school personnel

(A) Case-by-case determination

School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.

(B) Authority

School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).

(C) Additional authority

If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 1412(a)(1) of this title although it may be provided in an interim alternative educational setting.

(D) Services

A child with a disability who is removed from the child's current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the child's disability) or subparagraph (C) shall-

(i) continue to receive educational services, as provided in section 1412(a)(1) of this title, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and

(ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

(E) Manifestation determination

(i) In general

Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine-

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.

(ii) Manifestation

If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child's disability.

(F) Determination that behavior was a manifestation

If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team shall-

(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);

(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(iii) except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.

(G) Special circumstances

School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, in cases where a child-

(i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;

(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or

(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.

(H) Notification

Not later than the date on which the decision to take disciplinary action is made, the local educational agency shall notify the parents of that decision, and of all procedural safeguards accorded under this section.

(2) Determination of setting

The interim alternative educational setting in subparagraphs (C) and (G) of paragraph (1) shall be determined by the IEP Team.

(3) Appeal

(A) In general

The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing.

(B) Authority of hearing officer

(i) In general

A hearing officer shall hear, and make a determination regarding, an appeal requested under subparagraph (A).

(ii) Change of placement order

In making the determination under clause (i), the hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may-

(I) return a child with a disability to the placement from which the child was removed; or

(II) order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.

(4) Placement during appeals

When an appeal under paragraph (3) has been requested by either the parent or the local educational agency-

(A) the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(C), whichever occurs first, unless the parent and the State or local educational agency agree otherwise; and

(B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing.

(5) Protections for children not yet eligible for special education and related services

(A) In general

A child who has not been determined to be eligible for special education and related services under this subchapter and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this subchapter if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

(B) Basis of knowledge

A local educational agency shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred-

(i) the parent of the child has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;

(ii) the parent of the child has requested an evaluation of the child pursuant to section 1414(a)(1)(B) of this title; or

(iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency.

(C) Exception

A local educational agency shall not be deemed to have knowledge that the child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to section 1414 of this title or has refused services under this subchapter or the child has been evaluated and it was determined that the child was not a child with a disability under this subchapter.

(D) Conditions that apply if no basis of knowledge

(i) In general

If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B) or (C)) prior to taking disciplinary measures against the child, the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).

(ii) Limitations

If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this subsection, the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with this subchapter, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities.

(6) Referral to and action by law enforcement and judicial authorities

(A) Rule of construction

Nothing in this subchapter shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

(B) Transmittal of records

An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

(7) Definitions

In this subsection:

(A) Controlled substance

The term "controlled substance" means a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act ( 21 U.S.C. 812(c)).

(B) Illegal drug

The term "illegal drug" means a controlled substance but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act [ 21 U.S.C. 801 et seq.] or under any other provision of Federal law.

(C) Weapon

The term "weapon" has the meaning given the term "dangerous weapon" under section 930(g)(2) of title 18.

(D) Serious bodily injury

The term "serious bodily injury" has the meaning given the term "serious bodily injury" under paragraph (3) of subsection (h) of section 1365 of title 18.

(l) Rule of construction

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [ 42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [ 29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

(m) Transfer of parental rights at age of majority

(1) In general

A State that receives amounts from a grant under this subchapter may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)-

(A) the agency shall provide any notice required by this section to both the individual and the parents;

(B) all other rights accorded to parents under this subchapter transfer to the child;

(C) the agency shall notify the individual and the parents of the transfer of rights; and

(D) all rights accorded to parents under this subchapter transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.

(2) Special rule

If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this subchapter.

(n) Electronic mail

A parent of a child with a disability may elect to receive notices required under this section by an electronic mail (e-mail) communication, if the agency makes such option available.

(o) Separate complaint

Nothing in this section shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (i)(3)(D)(i)(I), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Prior Provisions

§1416. Monitoring, technical assistance, and enforcement

(a) Federal and State monitoring

(1) In general

The Secretary shall-

(A) monitor implementation of this subchapter through-

(i) oversight of the exercise of general supervision by the States, as required in section 1412(a)(11) of this title; and

(ii) the State performance plans, described in subsection (b);

(B) enforce this subchapter in accordance with subsection (e); and

(C) require States to-

(i) monitor implementation of this subchapter by local educational agencies; and

(ii) enforce this subchapter in accordance with paragraph (3) and subsection (e).

(2) Focused monitoring

The primary focus of Federal and State monitoring activities described in paragraph (1) shall be on-

(A) improving educational results and functional outcomes for all children with disabilities; and

(B) ensuring that States meet the program requirements under this subchapter, with a particular emphasis on those requirements that are most closely related to improving educational results for children with disabilities.

(3) Monitoring priorities

The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (except the State exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using such qualitative indicators as are needed to adequately measure performance in the following priority areas:

(A) Provision of a free appropriate public education in the least restrictive environment.

(B) State exercise of general supervisory authority, including child find, effective monitoring, the use of resolution sessions, mediation, voluntary binding arbitration, and a system of transition services as defined in sections 1401(34) and 1437(a)(9) of this title.

(C) Disproportionate representation of racial and ethnic groups in special education and related services, to the extent the representation is the result of inappropriate identification.

(4) Permissive areas of review

The Secretary shall consider other relevant information and data, including data provided by States under section 1418 of this title.

(b) State performance plans

(1) Plan

(A) In general

Not later than 1 year after December 3, 2004, each State shall have in place a performance plan that evaluates that State's efforts to implement the requirements and purposes of this subchapter and describes how the State will improve such implementation.

(B) Submission for approval

Each State shall submit the State's performance plan to the Secretary for approval in accordance with the approval process described in subsection (c).

(C) Review

Each State shall review its State performance plan at least once every 6 years and submit any amendments to the Secretary.

(2) Targets

(A) In general

As a part of the State performance plan described under paragraph (1), each State shall establish measurable and rigorous targets for the indicators established under the priority areas described in subsection (a)(3).

(B) Data collection

(i) In general

Each State shall collect valid and reliable information as needed to report annually to the Secretary on the priority areas described in subsection (a)(3).

(ii) Rule of construction

Nothing in this chapter shall be construed to authorize the development of a nationwide database of personally identifiable information on individuals involved in studies or other collections of data under this subchapter.

(C) Public reporting and privacy

(i) In general

The State shall use the targets established in the plan and priority areas described in subsection (a)(3) to analyze the performance of each local educational agency in the State in implementing this subchapter.

(ii) Report

(I) Public report

The State shall report annually to the public on the performance of each local educational agency located in the State on the targets in the State's performance plan. The State shall make the State's performance plan available through public means, including by posting on the website of the State educational agency, distribution to the media, and distribution through public agencies.

(II) State performance report

The State shall report annually to the Secretary on the performance of the State under the State's performance plan.

(iii) Privacy

The State shall not report to the public or the Secretary any information on performance that would result in the disclosure of personally identifiable information about individual children or where the available data is insufficient to yield statistically reliable information.

(c) Approval process

(1) Deemed approval

The Secretary shall review (including the specific provisions described in subsection (b)) each performance plan submitted by a State pursuant to subsection (b)(1)(B) and the plan shall be deemed to be approved by the Secretary unless the Secretary makes a written determination, prior to the expiration of the 120-day period beginning on the date on which the Secretary received the plan, that the plan does not meet the requirements of this section, including the specific provisions described in subsection (b).

(2) Disapproval

The Secretary shall not finally disapprove a performance plan, except after giving the State notice and an opportunity for a hearing.

(3) Notification

If the Secretary finds that the plan does not meet the requirements, in whole or in part, of this section, the Secretary shall-

(A) give the State notice and an opportunity for a hearing; and

(B) notify the State of the finding, and in such notification shall-

(i) cite the specific provisions in the plan that do not meet the requirements; and

(ii) request additional information, only as to the provisions not meeting the requirements, needed for the plan to meet the requirements of this section.

(4) Response

If the State responds to the Secretary's notification described in paragraph (3)(B) during the 30-day period beginning on the date on which the State received the notification, and resubmits the plan with the requested information described in paragraph (3)(B)(ii), the Secretary shall approve or disapprove such plan prior to the later of-

(A) the expiration of the 30-day period beginning on the date on which the plan is resubmitted; or

(B) the expiration of the 120-day period described in paragraph (1).

(5) Failure to respond

If the State does not respond to the Secretary's notification described in paragraph (3)(B) during the 30-day period beginning on the date on which the State received the notification, such plan shall be deemed to be disapproved.

(d) Secretary's review and determination

(1) Review

The Secretary shall annually review the State performance report submitted pursuant to subsection (b)(2)(C)(ii)(II) in accordance with this section.

(2) Determination

(A) In general

Based on the information provided by the State in the State performance report, information obtained through monitoring visits, and any other public information made available, the Secretary shall determine if the State-

(i) meets the requirements and purposes of this subchapter;

(ii) needs assistance in implementing the requirements of this subchapter;

(iii) needs intervention in implementing the requirements of this subchapter; or

(iv) needs substantial intervention in implementing the requirements of this subchapter.

(B) Notice and opportunity for a hearing

For determinations made under clause (iii) or (iv) of subparagraph (A), the Secretary shall provide reasonable notice and an opportunity for a hearing on such determination.

(e) Enforcement

(1) Needs assistance

If the Secretary determines, for 2 consecutive years, that a State needs assistance under subsection (d)(2)(A)(ii) in implementing the requirements of this subchapter, the Secretary shall take 1 or more of the following actions:

(A) Advise the State of available sources of technical assistance that may help the State address the areas in which the State needs assistance, which may include assistance from the Office of Special Education Programs, other offices of the Department of Education, other Federal agencies, technical assistance providers approved by the Secretary, and other federally funded nonprofit agencies, and require the State to work with appropriate entities. Such technical assistance may include-

(i) the provision of advice by experts to address the areas in which the State needs assistance, including explicit plans for addressing the area for concern within a specified period of time;

(ii) assistance in identifying and implementing professional development, instructional strategies, and methods of instruction that are based on scientifically based research;

(iii) designating and using distinguished superintendents, principals, special education administrators, special education teachers, and other teachers to provide advice, technical assistance, and support; and

(iv) devising additional approaches to providing technical assistance, such as collaborating with institutions of higher education, educational service agencies, national centers of technical assistance supported under subchapter IV, and private providers of scientifically based technical assistance.

(B) Direct the use of State-level funds under section 1411(e) of this title on the area or areas in which the State needs assistance.

(C) Identify the State as a high-risk grantee and impose special conditions on the State's grant under this subchapter.

(2) Needs intervention

If the Secretary determines, for 3 or more consecutive years, that a State needs intervention under subsection (d)(2)(A)(iii) in implementing the requirements of this subchapter, the following shall apply:

(A) The Secretary may take any of the actions described in paragraph (1).

(B) The Secretary shall take 1 or more of the following actions:

(i) Require the State to prepare a corrective action plan or improvement plan if the Secretary determines that the State should be able to correct the problem within 1 year.

(ii) Require the State to enter into a compliance agreement under section 457 of the General Education Provisions Act [ 20 U.S.C. 1234f], if the Secretary has reason to believe that the State cannot correct the problem within 1 year.

(iii) For each year of the determination, withhold not less than 20 percent and not more than 50 percent of the State's funds under section 1411(e) of this title, until the Secretary determines the State has sufficiently addressed the areas in which the State needs intervention.

(iv) Seek to recover funds under section 452 of the General Education Provisions Act [ 20 U.S.C. 1234a].

(v) Withhold, in whole or in part, any further payments to the State under this subchapter pursuant to paragraph (5).

(vi) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.

(3) Needs substantial intervention

Notwithstanding paragraph (1) or (2), at any time that the Secretary determines that a State needs substantial intervention in implementing the requirements of this subchapter or that there is a substantial failure to comply with any condition of a State educational agency's or local educational agency's eligibility under this subchapter, the Secretary shall take 1 or more of the following actions:

(A) Recover funds under section 452 of the General Education Provisions Act [ 20 U.S.C. 1234a].

(B) Withhold, in whole or in part, any further payments to the State under this subchapter.

(C) Refer the case to the Office of the Inspector General at the Department of Education.

(D) Refer the matter for appropriate enforcement action, which may include referral to the Department of Justice.

(4) Opportunity for hearing

(A) Withholding funds

Prior to withholding any funds under this section, the Secretary shall provide reasonable notice and an opportunity for a hearing to the State educational agency involved.

(B) Suspension

Pending the outcome of any hearing to withhold payments under subsection (b), the Secretary may suspend payments to a recipient, suspend the authority of the recipient to obligate funds under this subchapter, or both, after such recipient has been given reasonable notice and an opportunity to show cause why future payments or authority to obligate funds under this subchapter should not be suspended.

(5) Report to Congress

The Secretary shall report to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate within 30 days of taking enforcement action pursuant to paragraph (1), (2), or (3), on the specific action taken and the reasons why enforcement action was taken.

(6) Nature of withholding

(A) Limitation

If the Secretary withholds further payments pursuant to paragraph (2) or (3), the Secretary may determine-

(i) that such withholding will be limited to programs or projects, or portions of programs or projects, that affected the Secretary's determination under subsection (d)(2); or

(ii) that the State educational agency shall not make further payments under this subchapter to specified State agencies or local educational agencies that caused or were involved in the Secretary's determination under subsection (d)(2).

(B) Withholding until rectified

Until the Secretary is satisfied that the condition that caused the initial withholding has been substantially rectified-

(i) payments to the State under this subchapter shall be withheld in whole or in part; and

(ii) payments by the State educational agency under this subchapter shall be limited to State agencies and local educational agencies whose actions did not cause or were not involved in the Secretary's determination under subsection (d)(2), as the case may be.

(7) Public attention

Any State that has received notice under subsection (d)(2) shall, by means of a public notice, take such measures as may be necessary to bring the pendency of an action pursuant to this subsection to the attention of the public within the State.

(8) Judicial review

(A) In general

If any State is dissatisfied with the Secretary's action with respect to the eligibility of the State under section 1412 of this title, such State may, not later than 60 days after notice of such action, file with the United States court of appeals for the circuit in which such State is located a petition for review of that action. A copy of the petition shall be transmitted by the clerk of the court to the Secretary. The Secretary thereupon shall file in the court the record of the proceedings upon which the Secretary's action was based, as provided in section 2112 of title 28.

(B) Jurisdiction; review by United States Supreme Court

Upon the filing of such petition, the court shall have jurisdiction to affirm the action of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28.

(C) Standard of review

The findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Secretary to take further evidence, and the Secretary may thereupon make new or modified findings of fact and may modify the Secretary's previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall be conclusive if supported by substantial evidence.

(f) State enforcement

If a State educational agency determines that a local educational agency is not meeting the requirements of this subchapter, including the targets in the State's performance plan, the State educational agency shall prohibit the local educational agency from reducing the local educational agency's maintenance of effort under section 1413(a)(2)(C) of this title for any fiscal year.

(g) Rule of construction

Nothing in this section shall be construed to restrict the Secretary from utilizing any authority under the General Education Provisions Act [ 20 U.S.C. 1221 et seq.] to monitor and enforce the requirements of this chapter.

(h) Divided State agency responsibility

For purposes of this section, where responsibility for ensuring that the requirements of this subchapter are met with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons is assigned to a public agency other than the State educational agency pursuant to section 1412(a)(11)(C) of this title, the Secretary, in instances where the Secretary finds that the failure to comply substantially with the provisions of this subchapter are related to a failure by the public agency, shall take appropriate corrective action to ensure compliance with this subchapter, except that-

(1) any reduction or withholding of payments to the State shall be proportionate to the total funds allotted under section 1411 of this title to the State as the number of eligible children with disabilities in adult prisons under the supervision of the other public agency is proportionate to the number of eligible individuals with disabilities in the State under the supervision of the State educational agency; and

(2) any withholding of funds under paragraph (1) shall be limited to the specific agency responsible for the failure to comply with this subchapter.

(i) Data capacity and technical assistance review

The Secretary shall-

(1) review the data collection and analysis capacity of States to ensure that data and information determined necessary for implementation of this section is collected, analyzed, and accurately reported to the Secretary; and

(2) provide technical assistance (from funds reserved under section 1411(c) of this title), where needed, to improve the capacity of States to meet the data collection requirements.

References in Text

Prior Provisions

Another prior section 1416, Pub. L. 91-230, title VI, §616, as added Pub. L. 94-142, §5(a), Nov. 29, 1975, 89 Stat. 789; amended Pub. L. 98-199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100-630, title I, §102(f), Nov. 7, 1988, 102 Stat. 3294; Pub. L. 101-476, title IX, §901(b)(76), Oct. 30, 1990, 104 Stat. 1145; Pub. L. 102-119, §25(b), Oct. 7, 1991, 105 Stat. 607, related to withholding of payments, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

Change of Name

Committee on Education and the Workforce of House of Representatives changed to Committee on Education and Labor of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

§1417. Administration

(a) Responsibilities of Secretary

The Secretary shall-

(1) cooperate with, and (directly or by grant or contract) furnish technical assistance necessary to, a State in matters relating to-

(A) the education of children with disabilities; and

(B) carrying out this subchapter; and

(2) provide short-term training programs and institutes.

(b) Prohibition against Federal mandates, direction, or control

Nothing in this chapter shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school's specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction.

(c) Confidentiality

The Secretary shall take appropriate action, in accordance with section 1232g of this title, to ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by State educational agencies and local educational agencies pursuant to this subchapter.

(d) Personnel

The Secretary is authorized to hire qualified personnel necessary to carry out the Secretary's duties under subsection (a), under section 1418 of this title, and under part D of subchapter IV, without regard to the provisions of title 5 relating to appointments in the competitive service and without regard to chapter 51 and subchapter III of chapter 53 of such title relating to classification and general schedule pay rates, except that no more than 20 such personnel shall be employed at any time.

(e) Model forms

Not later than the date that the Secretary publishes final regulations under this chapter, to implement amendments made by the Individuals with Disabilities Education Improvement Act of 2004, the Secretary shall publish and disseminate widely to States, local educational agencies, and parent and community training and information centers-

(1) a model IEP form;

(2) a model individualized family service plan (IFSP) form;

(3) a model form of the notice of procedural safeguards described in section 1415(d) of this title; and

(4) a model form of the prior written notice described in subsections (b)(3) and (c)(1) of section 1415 of this title that is consistent with the requirements of this subchapter and is sufficient to meet such requirements.

References in Text

The provisions of title 5 relating to appointments in the competitive service, referred to in subsec. (d), are classified generally to section 3301 et seq. of Title 5, Government Organization and Employees.

The Individuals with Disabilities Education Improvement Act of 2004, referred to in subsec. (e), is Pub. L. 108-446, Dec. 3, 2004, 118 Stat. 2647. For complete classification of this Act to the Code, see Short Title of 2004 Amendment note set out under section 1400 of this title and Tables.

Prior Provisions

Another prior section 1417, Pub. L. 91-230, title VI, §617, as added Pub. L. 94-142, §5(a), Nov. 29, 1975, 89 Stat. 791; amended Pub. L. 98-199, §3(b), Dec. 2, 1983, 97 Stat. 1358; Pub. L. 100-630, title I, §102(g), Nov. 7, 1988, 102 Stat. 3295; Pub. L. 101-476, title IX, §901(b)(77), (78), Oct. 30, 1990, 104 Stat. 1145; Pub. L. 102-119, §25(a)(7), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to Secretary's administrative duties, prior to the general amendment of subchapters I to IV of this chapter by Pub. L. 105-17.

§1418. Program information

(a) In general

Each State that receives assistance under this subchapter, and the Secretary of the Interior, shall provide data each year to the Secretary of Education and the public on the following:

(1)(A) The number and percentage of children with disabilities, by race, ethnicity, limited English proficiency status, gender, and disability category, who are in each of the following separate categories:

(i) Receiving a free appropriate public education.

(ii) Participating in regular education.

(iii) In separate classes, separate schools or facilities, or public or private residential facilities.

(iv) For each year of age from age 14 through 21, stopped receiving special education and related services because of program completion (including graduation with a regular secondary school diploma), or other reasons, and the reasons why those children stopped receiving special education and related services.

(v)(I) Removed to an interim alternative educational setting under section 1415(k)(1) of this title.

(II) The acts or items precipitating those removals.

(III) The number of children with disabilities who are subject to long-term suspensions or expulsions.

(B) The number and percentage of children with disabilities, by race, gender, and ethnicity, who are receiving early intervention services.

(C) The number and percentage of children with disabilities, by race, gender, and ethnicity, who, from birth through age 2, stopped receiving early intervention services because of program completion or for other reasons.

(D) The incidence and duration of disciplinary actions by race, ethnicity, limited English proficiency status, gender, and disability category, of children with disabilities, including suspensions of 1 day or more.

(E) The number and percentage of children with disabilities who are removed to alternative educational settings or expelled as compared to children without disabilities who are removed to alternative educational settings or expelled.

(F) The number of due process complaints filed under section 1415 of this title and the number of hearings conducted.

(G) The number of hearings requested under section 1415(k) of this title and the number of changes in placements ordered as a result of those hearings.

(H) The number of mediations held and the number of settlement agreements reached through such mediations.

(2) The number and percentage of infants and toddlers, by race, and ethnicity, who are at risk of having substantial developmental delays (as defined in section 1432 of this title), and who are receiving early intervention services under subchapter III.

(3) Any other information that may be required by the Secretary.

(b) Data reporting

(1) Protection of identifiable data

The data described in subsection (a) shall be publicly reported by each State in a manner that does not result in the disclosure of data identifiable to individual children.

(2) Sampling

The Secretary may permit States and the Secretary of the Interior to obtain the data described in subsection (a) through sampling.

(c) Technical assistance

The Secretary may provide technical assistance to States to ensure compliance with the data collection and reporting requirements under this chapter.

(d) Disproportionality

(1) In general

Each State that receives assistance under this subchapter, and the Secretary of the Interior, shall provide for the collection and examination of data to determine if significant disproportionality based on race and ethnicity is occurring in the State and the local educational agencies of the State with respect to-

(A) the identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in section 1401(3) of this title;

(B) the placement in particular educational settings of such children; and

(C) the incidence, duration, and type of disciplinary actions, including suspensions and expulsions.

(2) Review and revision of policies, practices, and procedures

In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of such children, in accordance with paragraph (1), the State or the Secretary of the Interior, as the case may be, shall-

(A) provide for the review and, if appropriate, revision of the policies, procedures, and practices used in such identification or placement to ensure that such policies, procedures, and practices comply with the requirements of this chapter;

(B) require any local educational agency identified under paragraph (1) to reserve the maximum amount of funds under section 1413(f) of this title to provide comprehensive coordinated early intervening services to serve children in the local educational agency, particularly children in those groups that were significantly overidentified under paragraph (1); and

(C) require the local educational agency to publicly report on the revision of policies, practices, and procedures described under subparagraph (A).

Prior Provisions

§1419. Preschool grants

(a) In general

The Secretary shall provide grants under this section to assist States to provide special education and related services, in accordance with this subchapter-

(1) to children with disabilities aged 3 through 5, inclusive; and

(2) at the State's discretion, to 2-year-old children with disabilities who will turn 3 during the school year.

(b) Eligibility

A State shall be eligible for a grant under this section if such State-

(1) is eligible under section 1412 of this title to receive a grant under this subchapter; and

(2) makes a free appropriate public education available to all children with disabilities, aged 3 through 5, residing in the State.

(c) Allocations to States

(1) In general

The Secretary shall allocate the amount made available to carry out this section for a fiscal year among the States in accordance with paragraph (2) or (3), as the case may be.

(2) Increase in funds

If the amount available for allocations to States under paragraph (1) for a fiscal year is equal to or greater than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:

(A) Allocation

(i) In general

Except as provided in subparagraph (B), the Secretary shall-

(I) allocate to each State the amount the State received under this section for fiscal year 1997;

(II) allocate 85 percent of any remaining funds to States on the basis of the States' relative populations of children aged 3 through 5; and

(III) allocate 15 percent of those remaining funds to States on the basis of the States' relative populations of all children aged 3 through 5 who are living in poverty.

(ii) Data

For the purpose of making grants under this paragraph, the Secretary shall use the most recent population data, including data on children living in poverty, that are available and satisfactory to the Secretary.

(B) Limitations

Notwithstanding subparagraph (A), allocations under this paragraph shall be subject to the following:

(i) Preceding years

No State's allocation shall be less than its allocation under this section for the preceding fiscal year.

(ii) Minimum

No State's allocation shall be less than the greatest of-

(I) the sum of-

(aa) the amount the State received under this section for fiscal year 1997; and

(bb) 1/3 of 1 percent of the amount by which the amount appropriated under subsection (j) for the fiscal year exceeds the amount appropriated for this section for fiscal year 1997;

(II) the sum of-

(aa) the amount the State received under this section for the preceding fiscal year; and

(bb) that amount multiplied by the percentage by which the increase in the funds appropriated under this section from the preceding fiscal year exceeds 1.5 percent; or

(III) the sum of-

(aa) the amount the State received under this section for the preceding fiscal year; and

(bb) that amount multiplied by 90 percent of the percentage increase in the amount appropriated under this section from the preceding fiscal year.

(iii) Maximum

Notwithstanding clause (ii), no State's allocation under this paragraph shall exceed the sum of-

(I) the amount the State received under this section for the preceding fiscal year; and

(II) that amount multiplied by the sum of 1.5 percent and the percentage increase in the amount appropriated under this section from the preceding fiscal year.

(C) Ratable reductions

If the amount available for allocations under this paragraph is insufficient to pay those allocations in full, those allocations shall be ratably reduced, subject to subparagraph (B)(i).

(3) Decrease in funds

If the amount available for allocations to States under paragraph (1) for a fiscal year is less than the amount allocated to the States under this section for the preceding fiscal year, those allocations shall be calculated as follows:

(A) Allocations

If the amount available for allocations is greater than the amount allocated to the States for fiscal year 1997, each State shall be allocated the sum of-

(i) the amount the State received under this section for fiscal year 1997; and

(ii) an amount that bears the same relation to any remaining funds as the increase the State received under this section for the preceding fiscal year over fiscal year 1997 bears to the total of all such increases for all States.

(B) Ratable reductions

If the amount available for allocations is equal to or less than the amount allocated to the States for fiscal year 1997, each State shall be allocated the amount the State received for fiscal year 1997, ratably reduced, if necessary.

(d) Reservation for State activities

(1) In general

Each State may reserve not more than the amount described in paragraph (2) for administration and other State-level activities in accordance with subsections (e) and (f).

(2) Amount described

For each fiscal year, the Secretary shall determine and report to the State educational agency an amount that is 25 percent of the amount the State received under this section for fiscal year 1997, cumulatively adjusted by the Secretary for each succeeding fiscal year by the lesser of-

(A) the percentage increase, if any, from the preceding fiscal year in the State's allocation under this section; or

(B) the percentage increase, if any, from the preceding fiscal year in the Consumer Price Index For All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor.

(e) State administration

(1) In general

For the purpose of administering this section (including the coordination of activities under this subchapter with, and providing technical assistance to, other programs that provide services to children with disabilities) a State may use not more than 20 percent of the maximum amount the State may reserve under subsection (d) for any fiscal year.

(2) Administration of subchapter III

Funds described in paragraph (1) may also be used for the administration of subchapter III.

(f) Other State-level activities

Each State shall use any funds the State reserves under subsection (d) and does not use for administration under subsection (e)-

(1) for support services (including establishing and implementing the mediation process required by section 1415(e) of this title), which may benefit children with disabilities younger than 3 or older than 5 as long as those services also benefit children with disabilities aged 3 through 5;

(2) for direct services for children eligible for services under this section;

(3) for activities at the State and local levels to meet the performance goals established by the State under section 1412(a)(15) of this title;

(4) to supplement other funds used to develop and implement a statewide coordinated services system designed to improve results for children and families, including children with disabilities and their families, but not more than 1 percent of the amount received by the State under this section for a fiscal year;

(5) to provide early intervention services (which shall include an educational component that promotes school readiness and incorporates preliteracy, language, and numeracy skills) in accordance with subchapter III to children with disabilities who are eligible for services under this section and who previously received services under subchapter III until such children enter, or are eligible under State law to enter, kindergarten; or

(6) at the State's discretion, to continue service coordination or case management for families who receive services under subchapter III.

(g) Subgrants to local educational agencies

(1) Subgrants required

Each State that receives a grant under this section for any fiscal year shall distribute all of the grant funds that the State does not reserve under subsection (d) to local educational agencies in the State that have established their eligibility under section 1413 of this title, as follows:

(A) Base payments

The State shall first award each local educational agency described in paragraph (1) the amount that agency would have received under this section for fiscal year 1997 if the State had distributed 75 percent of its grant for that year under section 1419(c)(3) of this title, as such section was then in effect.

(B) Allocation of remaining funds

After making allocations under subparagraph (A), the State shall-

(i) allocate 85 percent of any remaining funds to those local educational agencies on the basis of the relative numbers of children enrolled in public and private elementary schools and secondary schools within the local educational agency's jurisdiction; and

(ii) allocate 15 percent of those remaining funds to those local educational agencies in accordance with their relative numbers of children living in poverty, as determined by the State educational agency.

(2) Reallocation of funds

If a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all children with disabilities aged 3 through 5 residing in the area served by the local educational agency with State and local funds, the State educational agency may reallocate any portion of the funds under this section that are not needed by that local educational agency to provide a free appropriate public education to other local educational agencies in the State that are not adequately providing special education and related services to all children with disabilities aged 3 through 5 residing in the areas the other local educational agencies serve.

(h) Subchapter III inapplicable

Subchapter III does not apply to any child with a disability receiving a free appropriate public education, in accordance with this subchapter, with funds received under this section.

(i) State defined

In this section, the term "State" means each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.

(j) Authorization of appropriations

There are authorized to be appropriated to carry out this section such sums as may be necessary.

Prior Provisions

Section 1425, Pub. L. 91-230, title VI, §626, formerly §625, Apr. 13, 1970, 84 Stat. 183, renumbered §626, Pub. L. 93-380, title VI, §616, Aug. 21, 1974, 88 Stat. 584; amended Pub. L. 98-199, §§3(b), 10, Dec. 2, 1983, 97 Stat. 1358, 1367; Pub. L. 99-457, title III, §306, Oct. 8, 1986, 100 Stat. 1163; Pub. L. 100-630, title I, §103(g), Nov. 7, 1988, 102 Stat. 3298; Pub. L. 101-476, title III, §306, title IX, §901(b)(119)-(127), Oct. 30, 1990, 104 Stat. 1124, 1147, 1148; Pub. L. 102-119, §25(a)(11), (b), Oct. 7, 1991, 105 Stat. 606, 607, related to secondary education and transitional services for youth with disabilities.

Section 1427, Pub. L. 91-230, title VI, §628, as added Pub. L. 98-199, §10, Dec. 2, 1983, 97 Stat. 1368; amended Pub. L. 99-457, title III, §307, Oct. 8, 1986, 100 Stat. 1165; Pub. L. 101-476, title III, §308, Oct. 30, 1990, 104 Stat. 1128, authorized appropriations.

Preschool Grants

Pub. L. 100-630, title I, §110, Nov. 7, 1988, 102 Stat. 3303, as amended by Pub. L. 101-476, title IX, §901(a)(3), Oct. 30, 1990, 104 Stat. 1142, provided that: "The provisions of section 300.300(b)(3) of title 34, Code of Federal Regulations, shall not apply with respect to children aged 3 through 5, inclusive, in any State for any fiscal year for which the State receives a grant under section 619(a)(1) of the Individuals with Disabilities Education Act [ 20 U.S.C. 1419(a)(1)]."

SUBCHAPTER III-INFANTS AND TODDLERS WITH DISABILITIES

§1431. Findings and policy

(a) Findings

Congress finds that there is an urgent and substantial need-

(1) to enhance the development of infants and toddlers with disabilities, to minimize their potential for developmental delay, and to recognize the significant brain development that occurs during a child's first 3 years of life;

(2) to reduce the educational costs to our society, including our Nation's schools, by minimizing the need for special education and related services after infants and toddlers with disabilities reach school age;

(3) to maximize the potential for individuals with disabilities to live independently in society;

(4) to enhance the capacity of families to meet the special needs of their infants and toddlers with disabilities; and

(5) to enhance the capacity of State and local agencies and service providers to identify, evaluate, and meet the needs of all children, particularly minority, low-income, inner city, and rural children, and infants and toddlers in foster care.

(b) Policy

It is the policy of the United States to provide financial assistance to States-

(1) to develop and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system that provides early intervention services for infants and toddlers with disabilities and their families;

(2) to facilitate the coordination of payment for early intervention services from Federal, State, local, and private sources (including public and private insurance coverage);

(3) to enhance State capacity to provide quality early intervention services and expand and improve existing early intervention services being provided to infants and toddlers with disabilities and their families; and

(4) to encourage States to expand opportunities for children under 3 years of age who would be at risk of having substantial developmental delay if they did not receive early intervention services.

Prior Provisions

Effective Date

Subchapter effective July 1, 2005, see section 302(a) of Pub. L. 108-446, set out as a note under section 1400 of this title.

§1432. Definitions

In this subchapter:

(1) At-risk infant or toddler

The term "at-risk infant or toddler" means an individual under 3 years of age who would be at risk of experiencing a substantial developmental delay if early intervention services were not provided to the individual.

(2) Council

The term "council" means a State interagency coordinating council established under section 1441 of this title.

(3) Developmental delay

The term "developmental delay", when used with respect to an individual residing in a State, has the meaning given such term by the State under section 1435(a)(1) of this title.

(4) Early intervention services

The term "early intervention services" means developmental services that-

(A) are provided under public supervision;

(B) are provided at no cost except where Federal or State law provides for a system of payments by families, including a schedule of sliding fees;

(C) are designed to meet the developmental needs of an infant or toddler with a disability, as identified by the individualized family service plan team, in any 1 or more of the following areas:

(i) physical development;

(ii) cognitive development;

(iii) communication development;

(iv) social or emotional development; or

(v) adaptive development;

(D) meet the standards of the State in which the services are provided, including the requirements of this subchapter;

(E) include-

(i) family training, counseling, and home visits;

(ii) special instruction;

(iii) speech-language pathology and audiology services, and sign language and cued language services;

(iv) occupational therapy;

(v) physical therapy;

(vi) psychological services;

(vii) service coordination services;

(viii) medical services only for diagnostic or evaluation purposes;

(ix) early identification, screening, and assessment services;

(x) health services necessary to enable the infant or toddler to benefit from the other early intervention services;

(xi) social work services;

(xii) vision services;

(xiii) assistive technology devices and assistive technology services; and

(xiv) transportation and related costs that are necessary to enable an infant or toddler and the infant's or toddler's family to receive another service described in this paragraph;

(F) are provided by qualified personnel, including-

(i) special educators;

(ii) speech-language pathologists and audiologists;

(iii) occupational therapists;

(iv) physical therapists;

(v) psychologists;

(vi) social workers;

(vii) nurses;

(viii) registered dietitians;

(ix) family therapists;

(x) vision specialists, including ophthalmologists and optometrists;

(xi) orientation and mobility specialists; and

(xii) pediatricians and other physicians;

(G) to the maximum extent appropriate, are provided in natural environments, including the home, and community settings in which children without disabilities participate; and

(H) are provided in conformity with an individualized family service plan adopted in accordance with section 1436 of this title.

(5) Infant or toddler with a disability

The term "infant or toddler with a disability"-

(A) means an individual under 3 years of age who needs early intervention services because the individual-

(i) is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in 1 or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive development; or

(ii) has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; and

(B) may also include, at a State's discretion-

(i) at-risk infants and toddlers; and

(ii) children with disabilities who are eligible for services under section 1419 of this title and who previously received services under this subchapter until such children enter, or are eligible under State law to enter, kindergarten or elementary school, as appropriate, provided that any programs under this subchapter serving such children shall include-

(I) an educational component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills; and

(II) a written notification to parents of their rights and responsibilities in determining whether their child will continue to receive services under this subchapter or participate in preschool programs under section 1419 of this title.

Prior Provisions

§1433. General authority

The Secretary shall, in accordance with this subchapter, make grants to States (from their allotments under section 1443 of this title) to assist each State to maintain and implement a statewide, comprehensive, coordinated, multidisciplinary, interagency system to provide early intervention services for infants and toddlers with disabilities and their families.

Prior Provisions

§1434. Eligibility

In order to be eligible for a grant under section 1433 of this title, a State shall provide assurances to the Secretary that the State-

(1) has adopted a policy that appropriate early intervention services are available to all infants and toddlers with disabilities in the State and their families, including Indian infants and toddlers with disabilities and their families residing on a reservation geographically located in the State, infants and toddlers with disabilities who are homeless children and their families, and infants and toddlers with disabilities who are wards of the State; and

(2) has in effect a statewide system that meets the requirements of

# data[].attributes.attachment_link.title
[USC02] 20 USC Ch. 33: EDUCATION OF INDIVIDUALS WITH DISABILITIES

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SUBCHAPTER I-GENERAL PROVISIONS SUBCHAPTER II-ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH DISABILITIES SUBCHAPTER III-INFANTS AND TODDLERS WITH DISABILITIES SUBCHAPTER IV-NATIONAL ACTIVITIES TO IMPROVE EDUCATION OF CHILDREN WITH DISABILITIES Part A-State Personnel Development Grants Part B-Personnel Preparation, Technical Assistance, Model Demonstration Projects, and Dissemination of Information Part C-Supports To Improve Results for Children With Disabilities Part D-General Provisions Codification (a) Short title This chapter may be cited as the "Individuals with Disabilities Education Act".

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Slide #7 Original Sources of Law: State Statutory Law

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Slide #7 Original Sources of Law: State Statutory Law

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Texas Education Code – Special Education Programs
Citation: Tex. Educ. Code § 29.00

Statewide plan to ensure funding and the quality of special education in Texas public schools

Ensures state compliance with federal disability law

Ensures personnel are appropriately trained

Ensures that an individualized education program for each student with a disability is properly developed, implemented, and maintained

Ensures specific eligibility criteria

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EDUCATION CODE



TITLE 2. PUBLIC EDUCATION



SUBTITLE F. CURRICULUM, PROGRAMS, AND SERVICES



CHAPTER 29. EDUCATIONAL PROGRAMS



SUBCHAPTER A. SPECIAL EDUCATION PROGRAM



Sec. 29.001. STATEWIDE PLAN. The agency shall develop, and modify as necessary, a statewide design, consistent with federal law, for the delivery of services to children with disabilities in this state that includes rules for the administration and funding of the special education program so that a free appropriate public education is available to all of those children between the ages of three and 21. The statewide design shall include the provision of services primarily through school districts and shared services arrangements, supplemented by regional education service centers. The agency shall also develop and implement a statewide plan with programmatic content that includes procedures designed to:


(1) ensure state compliance with requirements for supplemental federal funding for all state-administered programs involving the delivery of instructional or related services to students with disabilities;


(2) facilitate interagency coordination when other state agencies are involved in the delivery of instructional or related services to students with disabilities;


(3) periodically assess statewide personnel needs in all areas of specialization related to special education and pursue strategies to meet those needs through a consortium of representatives from regional education service centers, local education agencies, and institutions of higher education and through other available alternatives;


(4) ensure that regional education service centers throughout the state maintain a regional support function, which may include direct service delivery and a component designed to facilitate the placement of students with disabilities who cannot be appropriately served in their resident districts;


(5) allow the agency to effectively monitor and periodically conduct site visits of all school districts to ensure that rules adopted under this section are applied in a consistent and uniform manner, to ensure that districts are complying with those rules, and to ensure that annual statistical reports filed by the districts and not otherwise available through the Public Education Information Management System under Sections 48.008 and 48.009 are accurate and complete;


(6) ensure that appropriately trained personnel are involved in the diagnostic and evaluative procedures operating in all districts and that those personnel routinely serve on district admissions, review, and dismissal committees;


(7) ensure that an individualized education program for each student with a disability is properly developed, implemented, and maintained in the least restrictive environment that is appropriate to meet the student's educational needs;


(8) ensure that, when appropriate, each student with a disability is provided an opportunity to participate in career and technology and physical education classes, in addition to participating in regular or special classes;


(9) ensure that each student with a disability is provided necessary related services;


(10) ensure that an individual assigned to act as a surrogate parent for a child with a disability, as provided by 20 U.S.C. Section 1415(b), is required to:


(A) complete a training program that complies with minimum standards established by agency rule;


(B) visit the child and the child's school;


(C) consult with persons involved in the child's education, including teachers, caseworkers, court-appointed volunteers, guardians ad litem, attorneys ad litem, foster parents, and caretakers;


(D) review the child's educational records;


(E) attend meetings of the child's admission, review, and dismissal committee;


(F) exercise independent judgment in pursuing the child's interests; and


(G) exercise the child's due process rights under applicable state and federal law; and


(11) ensure that each district develops a process to be used by a teacher who instructs a student with a disability in a regular classroom setting:


(A) to request a review of the student's individualized education program;


(B) to provide input in the development of the student's individualized education program;


(C) that provides for a timely district response to the teacher's request; and


(D) that provides for notification to the student's parent or legal guardian of that response.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 430, Sec. 1, eff. Sept. 1, 1999.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 1283 (H.B. 1335), Sec. 1, eff. June 17, 2011.


Acts 2015, 84th Leg., R.S., Ch. 1192 (S.B. 1259), Sec. 1, eff. June 19, 2015.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.023, eff. September 1, 2019.


Sec. 29.0011. PROHIBITED PERFORMANCE INDICATOR. (a) Notwithstanding Section 29.001(5), Section 29.010, or any other provision of this code, the commissioner or agency may not adopt or implement a performance indicator in any agency monitoring system, including the performance-based monitoring analysis system, that solely measures a school district's or open-enrollment charter school's aggregated number or percentage of enrolled students who receive special education services.


(b) Subsection (a) does not prohibit or limit the commissioner or agency from meeting requirements under:


(1) 20 U.S.C. Section 1418(d) and its implementing regulations to collect and examine data to determine whether significant disproportionality based on race or ethnicity is occurring in the state and in the school districts and open-enrollment charter schools in the state with respect to the:


(A) identification of children as children with disabilities, including the identification of children as children with particular impairments;


(B) placement of children with disabilities in particular educational settings; and


(C) incidence, duration, and type of disciplinary actions taken against children with disabilities, including suspensions and expulsions; or


(2) 20 U.S.C. Section 1416(a)(3)(C) and its implementing regulations to address in the statewide plan the percentage of school districts and open-enrollment charter schools with disproportionate representation of racial and ethnic groups in special education and related services and in specific disability categories that results from inappropriate identification.


Added by Acts 2017, 85th Leg., R.S., Ch. 59 (S.B. 160), Sec. 1, eff. May 22, 2017.


Sec. 29.002. DEFINITION. In this subchapter, "special services" means:


(1) special education instruction, which may be provided by professional and supported by paraprofessional personnel in the regular classroom or in an instructional arrangement described by Section 48.102; and


(2) related services, which are developmental, corrective, supportive, or evaluative services, not instructional in nature, that may be required for the student to benefit from special education instruction and for implementation of a student's individualized education program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 767, Sec. 1, eff. June 13, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.024, eff. September 1, 2019.


Sec. 29.003. ELIGIBILITY CRITERIA. (a) The agency shall develop specific eligibility criteria based on the general classifications established by this section with reference to contemporary diagnostic or evaluative terminologies and techniques. Eligible students with disabilities shall enjoy the right to a free appropriate public education, which may include instruction in the regular classroom, instruction through special teaching, or instruction through contracts approved under this subchapter. Instruction shall be supplemented by the provision of related services when appropriate.


(b) A student is eligible to participate in a school district's special education program if the student:


(1) is not more than 21 years of age and has a visual or auditory impairment that prevents the student from being adequately or safely educated in public school without the provision of special services; or


(2) is at least three but not more than 21 years of age and has one or more of the following disabilities that prevents the student from being adequately or safely educated in public school without the provision of special services:


(A) physical disability;


(B) intellectual or developmental disability;


(C) emotional disturbance;


(D) learning disability;


(E) autism;


(F) speech disability; or


(G) traumatic brain injury.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 2, eff. September 1, 2019.


Sec. 29.004. FULL INDIVIDUAL AND INITIAL EVALUATION. (a) A written report of a full individual and initial evaluation of a student for purposes of special education services shall be completed as follows, except as otherwise provided by this section:


(1) not later than the 45th school day following the date on which the school district, in accordance with 20 U.S.C. Section 1414(a), as amended, receives written consent for the evaluation, signed by the student's parent or legal guardian, except that if a student has been absent from school during that period on three or more days, that period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent; or


(2) for students under five years of age by September 1 of the school year and not enrolled in public school and for students enrolled in a private or home school setting, not later than the 45th school day following the date on which the school district receives written consent for the evaluation, signed by a student's parent or legal guardian.


(a-1) If a school district receives written consent signed by a student's parent or legal guardian for a full individual and initial evaluation of a student at least 35 but less than 45 school days before the last instructional day of the school year, the evaluation must be completed and the written report of the evaluation must be provided to the parent or legal guardian not later than June 30 of that year. The student's admission, review, and dismissal committee shall meet not later than the 15th school day of the following school year to consider the evaluation. If a district receives written consent signed by a student's parent or legal guardian less than 35 school days before the last instructional day of the school year or if the district receives the written consent at least 35 but less than 45 school days before the last instructional day of the school year but the student is absent from school during that period on three or more days, Subsection (a)(1) applies to the date the written report of the full individual and initial evaluation is required.


(a-2) For purposes of this section, "school day" does not include a day that falls after the last instructional day of the spring school term and before the first instructional day of the subsequent fall school term. The commissioner by rule may determine days during which year-round schools are recessed that, consistent with this subsection, are not considered to be school days for purposes of this section.


(a-3) Subsection (a) does not impair any rights of an infant or toddler with a disability who is receiving early intervention services in accordance with 20 U.S.C. Section 1431.


(b) The evaluation shall be conducted using procedures that are appropriate for the student's most proficient method of communication.


(c) If a parent or legal guardian makes a written request to a school district's director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the district shall, not later than the 15th school day after the date the district receives the request:


(1) provide an opportunity for the parent or legal guardian to give written consent for the evaluation; or


(2) refuse to provide the evaluation and provide the parent or legal guardian with notice of procedural safeguards under 20 U.S.C. Section 1415(b).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 767, Sec. 2, eff. June 13, 2001; Acts 2003, 78th Leg., ch. 539, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 757 (S.B. 816), Sec. 1, eff. September 1, 2013.


Sec. 29.0041. INFORMATION AND CONSENT FOR CERTAIN PSYCHOLOGICAL EXAMINATIONS OR TESTS. (a) On request of a child's parent, before obtaining the parent's consent under 20 U.S.C. Section 1414 for the administration of any psychological examination or test to the child that is included as part of the evaluation of the child's need for special education, a school district shall provide to the child's parent:


(1) the name and type of the examination or test; and


(2) an explanation of how the examination or test will be used to develop an appropriate individualized education program for the child.


(b) If the district determines that an additional examination or test is required for the evaluation of a child's need for special education after obtaining consent from the child's parent under Subsection (a), the district shall provide the information described by Subsections (a)(1) and (2) to the child's parent regarding the additional examination or test and shall obtain additional consent for the examination or test.


(c) The time required for the district to provide information and seek consent under Subsection (b) may not be counted toward the 60 calendar days for completion of an evaluation under Section 29.004. If a parent does not give consent under Subsection (b) within 20 calendar days after the date the district provided to the parent the information required by that subsection, the parent's consent is considered denied.


Added by Acts 2003, 78th Leg., ch. 1008, Sec. 2, eff. June 20, 2003.


Sec. 29.005. INDIVIDUALIZED EDUCATION PROGRAM. (a) Before a child is enrolled in a special education program of a school district, the district shall establish a committee composed of the persons required under 20 U.S.C. Section 1414(d) to develop the child's individualized education program. If a committee is required to include a regular education teacher, the regular education teacher included must, to the extent practicable, be a teacher who is responsible for implementing a portion of the child's individualized education program.


(b) The committee shall develop the individualized education program by agreement of the committee members or, if those persons cannot agree, by an alternate method provided by the agency. Majority vote may not be used to determine the individualized education program.


(b-1) The written statement of the individualized education program must document the decisions of the committee with respect to issues discussed at each committee meeting. The written statement must include:


(1) the date of the meeting;


(2) the name, position, and signature of each member participating in the meeting; and


(3) an indication of whether the child's parents, the adult student, if applicable, and the administrator agreed or disagreed with the decisions of the committee.


(c) If the individualized education program is not developed by agreement, the written statement of the program required under 20 U.S.C. Section 1414(d) must include the basis of the disagreement. Each member of the committee who disagrees with the individualized education program developed by the committee is entitled to include a statement of disagreement in the written statement of the program.


(d) If the child's parent is unable to speak English, the district shall:


(1) provide the parent with a written or audiotaped copy of the child's individualized education program translated into Spanish if Spanish is the parent's native language; or


(2) if the parent's native language is a language other than Spanish, make a good faith effort to provide the parent with a written or audiotaped copy of the child's individualized education program translated into the parent's native language.


(e) The commissioner by rule may require a school district to include in the individualized education program of a student with autism or another pervasive developmental disorder any information or requirement determined necessary to ensure the student receives a free appropriate public education as required under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.).


(f) The written statement of a student's individualized education program may be required to include only information included in the model form developed under Section 29.0051(a).


(g) The committee may determine that a behavior improvement plan or a behavioral intervention plan is appropriate for a student for whom the committee has developed an individualized education program. If the committee makes that determination, the behavior improvement plan or the behavioral intervention plan shall be included as part of the student's individualized education program and provided to each teacher with responsibility for educating the student.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 1372, Sec. 1, eff. June 19, 1999; Acts 2001, 77th Leg., ch. 767, Sec. 3, eff. June 13, 2001.


Amended by:


Acts 2005, 79th Leg., Ch. 838 (S.B. 882), Sec. 12, eff. September 1, 2005.


Acts 2011, 82nd Leg., R.S., Ch. 1250 (S.B. 1788), Sec. 1, eff. June 17, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 458 (S.B. 914), Sec. 1, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 1192 (S.B. 1259), Sec. 2, eff. June 19, 2015.


Sec. 29.0051. MODEL FORM. (a) The agency shall develop a model form for use in developing an individualized education program under Section 29.005(b). The form must be clear, concise, well organized, and understandable to parents and educators and may include only:


(1) the information included in the model form developed under 20 U.S.C. Section 1417(e)(1);


(2) a state-imposed requirement relevant to an individualized education program not required under federal law; and


(3) the requirements identified under 20 U.S.C. Section 1407(a)(2).


(b) The agency shall post on the agency's Internet website the form developed under Subsection (a).


(c) A school district may use the form developed under Subsection (a) to comply with the requirements for an individualized education program under 20 U.S.C. Section 1414(d).


Added by Acts 2011, 82nd Leg., R.S., Ch. 1250 (S.B. 1788), Sec. 2, eff. June 17, 2011.


Sec. 29.006. CONTINUING ADVISORY COMMITTEE. (a) The governor shall appoint a continuing advisory committee, composed of 17 members, under 20 U.S.C. Section 1412(a)(21). At least one member appointed under this subsection must be a director of special education programs for a school district.


(b) The appointments are not subject to confirmation by the senate.


(c) Members of the committee are appointed for staggered terms of four years with the terms of eight or nine members expiring on February 1 of each odd-numbered year.


(d) Committee meetings must be conducted in compliance with Chapter 551, Government Code.


(e) The committee shall provide a procedure for members of the public to speak at committee meetings. The procedure may not require a member of the public to register to speak earlier than the day of the meeting.


(f) The agency must post on the agency's Internet website:


(1) contact information for the committee, including an e-mail address;


(2) notice of each open meeting of the committee;


(3) minutes of each open meeting of the committee; and


(4) guidance concerning how to submit public comments to the committee.


(g) The committee shall develop a policy to encourage public participation with the committee.


(h) Not later than January 1 of each odd-numbered year, the committee shall submit a report to the legislature with recommended changes to state law and agency rules relating to special education. The committee shall include the committee's current policy on encouraging public participation, as required by Subsection (g), in the report.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 767, Sec. 4, eff. June 13, 2001.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 44 (H.B. 861), Sec. 1, eff. May 12, 2011.


Acts 2017, 85th Leg., R.S., Ch. 547 (S.B. 436), Sec. 1, eff. September 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 1.02, eff. June 4, 2019.


Sec. 29.008. CONTRACTS FOR SERVICES; RESIDENTIAL PLACEMENT. (a) A school district, shared services arrangement unit, or regional education service center may contract with a public or private facility, institution, or agency inside or outside of this state for the provision of services to students with disabilities. Each contract for residential placement must be approved by the commissioner. The commissioner may approve a residential placement contract only after at least a programmatic evaluation of personnel qualifications, adequacy of physical plant and equipment, and curriculum content. The commissioner may approve either the whole or a part of a facility or program.


(b) Except as provided by Subsection (c), costs of an approved contract for residential placement may be paid from a combination of federal, state, and local funds. The local share of the total contract cost for each student is that portion of the local tax effort that exceeds the district's local fund assignment under Section 48.256, divided by the average daily attendance in the district. If the contract involves a private facility, the state share of the total contract cost is that amount remaining after subtracting the local share. If the contract involves a public facility, the state share is that amount remaining after subtracting the local share from the portion of the contract that involves the costs of instructional and related services. For purposes of this subsection, "local tax effort" means the total amount of money generated by taxes imposed for debt service and maintenance and operation less any amounts paid into a tax increment fund under Chapter 311, Tax Code.


(c) When a student, including one for whom the state is managing conservator, is placed primarily for care or treatment reasons in a private residential facility that operates its own private education program, none of the costs may be paid from public education funds. If a residential placement primarily for care or treatment reasons involves a private residential facility in which the education program is provided by the school district, the portion of the costs that includes appropriate education services, as determined by the school district's admission, review, and dismissal committee, shall be paid from state and federal education funds.


(d) A district that contracts for the provision of education services rather than providing the services itself shall oversee the implementation of the student's individualized education program and shall annually reevaluate the appropriateness of the arrangement. An approved facility, institution, or agency with whom the district contracts shall periodically report to the district on the services the student has received or will receive in accordance with the contract as well as diagnostic or other evaluative information that the district requires in order to fulfill its obligations under this subchapter.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1071, Sec. 3, eff. Sept. 1, 1997.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.025, eff. September 1, 2019.


Sec. 29.009. PUBLIC NOTICE CONCERNING PRESCHOOL PROGRAMS FOR STUDENTS WITH DISABILITIES. Each school district shall develop a system to notify the population in the district with children who are at least three years of age but younger than six years of age and who are eligible for enrollment in a special education program of the availability of the program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.010. COMPLIANCE. (a) The agency shall adopt and implement a comprehensive system for monitoring school district compliance with federal and state laws relating to special education. The monitoring system must provide for ongoing analysis of district special education data and of complaints filed with the agency concerning special education services and for inspections of school districts at district facilities. The agency shall use the information obtained through analysis of district data and from the complaints management system to determine the appropriate schedule for and extent of the inspection.


(b) To complete the inspection, the agency must obtain information from parents and teachers of students in special education programs in the district.


(c) The agency shall develop and implement a system of sanctions for school districts whose most recent monitoring visit shows a failure to comply with major requirements of the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.), federal regulations, state statutes, or agency requirements necessary to carry out federal law or regulations or state law relating to special education.


(d) For districts that remain in noncompliance for more than one year, the first stage of sanctions shall begin with annual or more frequent monitoring visits. Subsequent sanctions may range in severity up to the withholding of funds. If funds are withheld, the agency may use the funds to provide, through alternative arrangements, services to students and staff members in the district from which the funds are withheld.


(e) The agency's complaint management division shall develop a system for expedited investigation and resolution of complaints concerning a district's failure to provide special education or related services to a student eligible to participate in the district's special education program.


(f) This section does not create an obligation for or impose a requirement on a school district or open-enrollment charter school that is not also created or imposed under another state law or a federal law.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 1417, Sec. 1, eff. June 19, 1999.


Sec. 29.011. TRANSITION PLANNING. (a) The commissioner shall by rule adopt procedures for compliance with federal requirements relating to transition services for students who are enrolled in special education programs under this subchapter. The procedures must specify the manner in which a student's admission, review, and dismissal committee must consider, and if appropriate, address the following issues in the student's individualized education program:


(1) appropriate student involvement in the student's transition to life outside the public school system;


(2) if the student is younger than 18 years of age, appropriate involvement in the student's transition by the student's parents and other persons invited to participate by:


(A) the student's parents; or


(B) the school district in which the student is enrolled;


(3) if the student is at least 18 years of age, involvement in the student's transition and future by the student's parents and other persons, if the parent or other person:


(A) is invited to participate by the student or the school district in which the student is enrolled; or


(B) has the student's consent to participate pursuant to a supported decision-making agreement under Chapter 1357, Estates Code;


(4) appropriate postsecondary education options, including preparation for postsecondary-level coursework;


(5) an appropriate functional vocational evaluation;


(6) appropriate employment goals and objectives;


(7) if the student is at least 18 years of age, the availability of age-appropriate instructional environments, including community settings or environments that prepare the student for postsecondary education or training, competitive integrated employment, or independent living, in coordination with the student's transition goals and objectives;


(8) appropriate independent living goals and objectives;


(9) appropriate circumstances for facilitating a referral of a student or the student's parents to a governmental agency for services or public benefits, including a referral to a governmental agency to place the student on a waiting list for public benefits available to the student, such as a waiver program established under Section 1915(c), Social Security Act (42 U.S.C. Section 1396n(c)); and


(10) the use and availability of appropriate:


(A) supplementary aids, services, curricula, and other opportunities to assist the student in developing decision-making skills; and


(B) supports and services to foster the student's independence and self-determination, including a supported decision-making agreement under Chapter 1357, Estates Code.


(a-1) A student's admission, review, and dismissal committee shall annually review the issues described by Subsection (a) and, if necessary, update the portions of the student's individualized education program that address those issues.


(a-2) The commissioner shall develop and post on the agency's Internet website a list of services and public benefits for which referral may be appropriate under Subsection (a)(9).


(b) The commissioner shall require each school district or shared services arrangement to designate at least one employee to serve as the district's or shared services arrangement's designee on transition and employment services for students enrolled in special education programs under this subchapter. The commissioner shall develop minimum training guidelines for a district's or shared services arrangement's designee. An individual designated under this subsection must provide information and resources about effective transition planning and services, including each issue described by Subsection (a), and interagency coordination to ensure that local school staff communicate and collaborate with:


(1) students enrolled in special education programs under this subchapter and the parents of those students; and


(2) as appropriate, local and regional staff of the:


(A) Health and Human Services Commission;


(B) Texas Workforce Commission;


(C) Department of State Health Services; and


(D) Department of Family and Protective Services.


(c) The commissioner shall review and, if necessary, update the minimum training guidelines developed under Subsection (b) at least once every four years. In reviewing and updating the guidelines, the commissioner shall solicit input from stakeholders.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 704, Sec. 1, 2, eff. June 20, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 257 (H.B. 617), Sec. 2, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 574 (S.B. 748), Sec. 1, eff. June 9, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 2, eff. June 15, 2017.


Sec. 29.0111. BEGINNING OF TRANSITION PLANNING. Appropriate state transition planning under the procedure adopted under Section 29.011 must begin for a student not later than when the student reaches 14 years of age.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1250 (S.B. 1788), Sec. 3, eff. June 17, 2011.


Sec. 29.0112. TRANSITION AND EMPLOYMENT GUIDE. (a) The agency, with assistance from the Health and Human Services Commission, shall develop a transition and employment guide for students enrolled in special education programs and their parents to provide information on statewide services and programs that assist in the transition to life outside the public school system. The agency may contract with a private entity to prepare the guide.


(b) The transition and employment guide must be written in plain language and contain information specific to this state regarding:


(1) transition services;


(2) employment and supported employment services;


(3) social security programs;


(4) community and long-term services and support, including the option to place the student on a waiting list with a governmental agency for public benefits available to the student, such as a waiver program established under Section 1915(c), Social Security Act (42 U.S.C. Section 1396n(c));


(5) postsecondary educational programs and services, including the inventory maintained by the Texas Higher Education Coordinating Board under Section 61.0663;


(6) information sharing with health and human services agencies and providers;


(7) guardianship and alternatives to guardianship, including a supported decision-making agreement under Chapter 1357, Estates Code;


(8) self-advocacy, person-directed planning, and self-determination; and


(9) contact information for all relevant state agencies.


(c) The transition and employment guide must be produced in an electronic format and posted on the agency's website in a manner that permits the guide to be easily identified and accessed.


(d) The agency must update the transition and employment guide posted on the agency's website at least once every two years.


(e) A school district shall:


(1) post the transition and employment guide on the district's website if the district maintains a website;


(2) provide written information and, if necessary, assistance to a student or parent regarding how to access the electronic version of the guide at:


(A) the first meeting of the student's admission, review, and dismissal committee at which transition is discussed; and


(B) the first committee meeting at which transition is discussed that occurs after the date on which the guide is updated; and


(3) on request, provide a printed copy of the guide to a student or parent.


Added by Acts 2013, 83rd Leg., R.S., Ch. 257 (H.B. 617), Sec. 3, eff. September 1, 2013.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 747 (H.B. 1807), Sec. 2, eff. June 17, 2015.


Acts 2017, 85th Leg., R.S., Ch. 574 (S.B. 748), Sec. 2, eff. June 9, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 3, eff. June 15, 2017.


See note following this section.



Sec. 29.012. RESIDENTIAL FACILITIES. (a) Except as provided by Subsection (b)(2), not later than the third day after the date a person 22 years of age or younger is placed in a residential facility, the residential facility shall:


(1) if the person is three years of age or older, notify the school district in which the facility is located, unless the facility is an open-enrollment charter school; or


(2) if the person is younger than three years of age, notify a local early intervention program in the area in which the facility is located.


(b) An agency or political subdivision that funds, licenses, certifies, contracts with, or regulates a residential facility must:


(1) require the facility to comply with Subsection (a) as a condition of the funding, licensing, certification, or contracting; or


(2) if the agency or political subdivision places a person in a residential facility, provide the notice under Subsection (a) for that person.


(c) For purposes of enrollment in a school, a person who resides in a residential facility is considered a resident of the school district or geographical area served by the open-enrollment charter school in which the facility is located.


(c-1) The commissioner by rule shall require each school district and open-enrollment charter school to include in the district's or school's Public Education Information Management System (PEIMS) report the number of children with disabilities residing in a residential facility who:


(1) are required to be tracked by the Residential Facility Monitoring (RFM) System; and


(2) receive educational services from the district or school.


(d) The Texas Education Agency, the Health and Human Services Commission, the Department of Family and Protective Services, and the Texas Juvenile Justice Department by a cooperative effort shall develop and by rule adopt a memorandum of understanding. The memorandum must:


(1) establish the respective responsibilities of school districts and of residential facilities for the provision of a free, appropriate public education, as required by the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) and its subsequent amendments, including each requirement for children with disabilities who reside in those facilities;


(2) coordinate regulatory and planning functions of the parties to the memorandum;


(3) establish criteria for determining when a public school will provide educational services;


(4) provide for appropriate educational space when education services will be provided at the residential facility;


(5) establish measures designed to ensure the safety of students and teachers; and


(6) provide for binding arbitration consistent with Chapter 2009, Government Code, and Section 154.027, Civil Practice and Remedies Code.


(e) This section does not apply to a residential treatment facility for juveniles established under Section 221.056, Human Resources Code.


(f) Except as provided by Subsection (g), a residential facility shall provide to a school district or open-enrollment charter school that provides educational services to a student placed in the facility any information retained by the facility relating to:


(1) the student's school records, including records regarding:


(A) special education eligibility or services;


(B) behavioral intervention plans;


(C) school-related disciplinary actions; and


(D) other documents related to the student's educational needs;


(2) any other behavioral history information regarding the student that is not confidential under another provision of law; and


(3) the student's record of convictions or the student's probation, community supervision, or parole status, as provided to the facility by a law enforcement agency, local juvenile probation department or juvenile parole office, community supervision and corrections department, or parole office, if the information is needed to provide educational services to the student.


(g) Subsection (f) does not apply to a:


(1) juvenile pre-adjudication secure detention facility; or


(2) juvenile post-adjudication secure correctional facility.


Text of Subsection (c-1) effective on June 12, 2017, but only if a specific appropriation is provided as described by Acts 2017, 85th Leg., R.S., Ch. 764 (S.B. 2080), Sec. 3, which states: This Act takes effect only if a specific appropriation for the implementation of the Act is provided in a general appropriations act of the 85th Legislature.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 2.13, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 767, Sec. 5, eff. June 13, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1187 (H.B. 3689), Sec. 4.002, eff. June 19, 2009.


Acts 2011, 82nd Leg., R.S., Ch. 85 (S.B. 653), Sec. 3.003, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 22, eff. September 1, 2015.


Acts 2017, 85th Leg., R.S., Ch. 764 (S.B. 2080), Sec. 1, eff. June 12, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1026 (H.B. 1569), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 3, eff. September 1, 2019.


Sec. 29.013. NONEDUCATIONAL COMMUNITY-BASED SUPPORT SERVICES FOR CERTAIN STUDENTS WITH DISABILITIES. (a) The agency shall establish procedures and criteria for the allocation of funds appropriated under this section to school districts for the provision of noneducational community-based support services to certain students with disabilities and their families so that those students may receive an appropriate free public education in the least restrictive environment.


(b) The funds may be used only for eligible students with disabilities who would remain or would have to be placed in residential facilities primarily for educational reasons without the provision of noneducational community-based support services.


(c) The support services may include in-home family support, respite care, and case management for families with a student who otherwise would have been placed by a district in a private residential facility.


(d) The provision of services under this section does not supersede or limit the responsibility of other agencies to provide or pay for costs of noneducational community-based support services to enable any student with disabilities to receive a free appropriate public education in the least restrictive environment. Specifically, services provided under this section may not be used for a student with disabilities who is currently placed or who needs to be placed in a residential facility primarily for noneducational reasons.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.014. SCHOOL DISTRICTS THAT PROVIDE EDUCATION SOLELY TO STUDENTS CONFINED TO OR EDUCATED IN HOSPITALS. (a) This section applies only to a school district that provides education and related services only to students who are confined in or receive educational services in a hospital.


(b) A school district to which this section applies may operate an extended year program for a period not to exceed 45 days. The district's average daily attendance shall be computed for the regular school year plus the extended year.


(c) Notwithstanding any other provision of this code, a student whose appropriate education program is a regular education program may receive services and be counted for attendance purposes for the number of hours per week appropriate for the student's condition if the student:


(1) is temporarily classified as eligible for participation in a special education program because of the student's confinement in a hospital; and


(2) the student's education is provided by a district to which this section applies.


(d) The basic allotment for a student enrolled in a district to which this section applies is adjusted by the weight for a homebound student under Section 48.102(a).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.026, eff. September 1, 2019.


Sec. 29.015. SPECIAL EDUCATION DECISION-MAKING FOR CHILDREN IN FOSTER CARE. (a) A foster parent may act as a parent of a child with a disability, as authorized under 20 U.S.C. Section 1415(b) and its subsequent amendments, if:


(1) the Department of Family and Protective Services is appointed as the temporary or permanent managing conservator of the child;


(2) the rights and duties of the department to make decisions regarding education provided to the child under Section 153.371, Family Code, have not been limited by court order; and


(3) the foster parent agrees to:


(A) participate in making special education decisions on the child's behalf; and


(B) complete a training program that complies with minimum standards established by agency rule.


(b) A foster parent who will act as a parent of a child with a disability as provided by Subsection (a) must complete a training program before the next scheduled admission, review, and dismissal committee meeting for the child but not later than the 90th day after the date the foster parent begins acting as the parent for the purpose of making special education decisions.


(b-1) A school district may not require a foster parent to retake a training program to continue serving as a child's parent or to serve as the surrogate parent for another child if the foster parent has completed a training program to act as a parent of a child with a disability provided by:


(1) the Department of Family and Protective Services;


(2) a school district;


(3) an education service center; or


(4) any other entity that receives federal funds to provide special education training to parents.


(c) A foster parent who is denied the right to act as a parent under this section by a school district may file a complaint with the agency in accordance with federal law and regulations.


(d) Not later than the fifth day after the date a child with a disability is enrolled in a school, the Department of Family and Protective Services must inform the appropriate school district if the child's foster parent is unwilling or unable to serve as a parent for the purposes of this subchapter.


Added by Acts 1999, 76th Leg., ch. 430, Sec. 2, eff. Sept. 1, 1999.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 1025 (H.B. 1556), Sec. 1, eff. September 1, 2017.


Sec. 29.0151. APPOINTMENT OF SURROGATE PARENT FOR CERTAIN CHILDREN. (a) This section applies to a child with a disability for whom:


(1) the Department of Family and Protective Services is appointed as the temporary or permanent managing conservator of the child; and


(2) the rights and duties of the department to make decisions regarding the child's education under Section 153.371, Family Code, have not been limited by court order.


(b) Except as provided by Section 263.0025, Family Code, a school district must appoint an individual to serve as the surrogate parent for a child if:


(1) the district is unable to identify or locate a parent for a child with a disability; or


(2) the foster parent of a child is unwilling or unable to serve as a parent for the purposes of this subchapter.


(c) A surrogate parent appointed by a school district may not:


(1) be an employee of the agency, the school district, or any other agency involved in the education or care of the child; or


(2) have any interest that conflicts with the interests of the child.


(d) A surrogate parent appointed by a district must:


(1) be willing to serve in that capacity;


(2) exercise independent judgment in pursuing the child's interests;


(3) ensure that the child's due process rights under applicable state and federal laws are not violated;


(4) complete a training program that complies with minimum standards established by agency rule within the time specified in Section 29.015(b);


(5) visit the child and the school where the child is enrolled;


(6) review the child's educational records;


(7) consult with any person involved in the child's education, including the child's:


(A) teachers;


(B) caseworkers;


(C) court-appointed volunteers;


(D) guardian ad litem;


(E) attorney ad litem;


(F) foster parent; and


(G) caregiver; and


(8) attend meetings of the child's admission, review, and dismissal committee.


(e) The district may appoint a person who has been appointed to serve as a child's guardian ad litem or as a court-certified volunteer advocate, as provided under Section 107.031(c), Family Code, as the child's surrogate parent.


(e-1) As soon as practicable after appointing a surrogate parent under this section, a school district shall provide written notice of the appointment to the child's educational decision-maker and caseworker as required under Section 25.007(b)(10)(H).


(f) If a court appoints a surrogate parent for a child with a disability under Section 263.0025, Family Code, and the school district determines that the surrogate parent is not properly performing the duties listed under Subsection (d), the district shall consult with the Department of Family and Protective Services regarding whether another person should be appointed to serve as the surrogate parent for the child.


(g) On receiving notice from a school district under Subsection (f), if the Department of Family and Protective Services agrees with the district that the appointed surrogate parent is unable or unwilling to properly perform the duties required under this section:


(1) the department shall promptly notify the court of the agreement; and


(2) as soon as practicable after receiving notice under Subdivision (1), the court shall:


(A) review the appointment; and


(B) enter any orders necessary to ensure the child has a surrogate parent who performs the duties required under this section.


Added by Acts 2017, 85th Leg., R.S., Ch. 1025 (H.B. 1556), Sec. 2, eff. September 1, 2017.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 781 (H.B. 1709), Sec. 2, eff. June 10, 2019.


Sec. 29.016. EVALUATION CONDUCTED PURSUANT TO A SPECIAL EDUCATION DUE PROCESS HEARING. A special education hearing officer in an impartial due process hearing brought under 20 U.S.C. Section 1415 may issue an order or decision that authorizes one or more evaluations of a student who is eligible for, or who is suspected as being eligible for, special education services. Such an order or decision authorizes the evaluation of the student without parental consent as if it were a court order for purposes of any state or federal law providing for consent by order of a court.


Added by Acts 2001, 77th Leg., ch. 767, Sec. 8, eff. June 13, 2001.


Sec. 29.0161. CONTRACT WITH STATE OFFICE OF ADMINISTRATIVE HEARINGS FOR SPECIAL EDUCATION DUE PROCESS HEARINGS. Not later than December 1, 2003, the agency and the State Office of Administrative Hearings shall jointly determine whether it would be cost-effective for the agency to enter an interagency contract with the office under which the office would conduct all or part of the agency's special education due process hearings under 20 U.S.C. Section 1415 and its subsequent amendments.


Added by Acts 2003, 78th Leg., ch. 201, Sec. 18, eff. Sept. 1, 2003.


Sec. 29.0162. REPRESENTATION IN SPECIAL EDUCATION DUE PROCESS HEARING. (a) A person in an impartial due process hearing brought under 20 U.S.C. Section 1415 may be represented by:


(1) an attorney who is licensed in this state; or


(2) an individual who is not an attorney licensed in this state but who has special knowledge or training with respect to problems of children with disabilities and who satisfies qualifications under Subsection (b).


(b) The commissioner by rule shall adopt additional qualifications and requirements for a representative for purposes of Subsection (a)(2). The rules must:


(1) prohibit an individual from being a representative under Subsection (a)(2) opposing a school district if:


(A) the individual has prior employment experience with the district; and


(B) the district raises an objection to the individual serving as a representative;


(2) include requirements that the representative have knowledge of:


(A) special education due process rules, hearings, and procedure; and


(B) federal and state special education laws;


(3) require, if the representative receives monetary compensation from a person for representation in an impartial due process hearing, that the representative agree to abide by a voluntary code of ethics and professional conduct during the period of representation; and


(4) require, if the representative receives monetary compensation from a person for representation in an impartial due process hearing, that the representative enter into a written agreement for representation with the person who is the subject of the special education due process hearing that includes a process for resolving any disputes between the representative and the person.


(c) A special education due process hearing officer shall determine whether an individual satisfies qualifications under Subsections (a)(2) and (b).


(d) The agency is not required to license or in any way other than as provided by Subsection (b) regulate representatives described by Subsection (a)(2) in a special education impartial due process hearing.


(e) The written agreement for representation required under Subsection (b)(4) is considered confidential and may not be disclosed.


Added by Acts 2013, 83rd Leg., R.S., Ch. 1333 (S.B. 709), Sec. 1, eff. June 14, 2013.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 767 (S.B. 2141), Sec. 1, eff. June 12, 2017.


Sec. 29.0163. PROTECTION OF THE RIGHTS OF MILITARY FAMILIES WITH CHILDREN WITH DISABILITIES. (a) In this section, "servicemember" means a member of:


(1) the armed forces;


(2) the Commissioned Corps of the National Oceanic and Atmospheric Administration; or


(3) the Commissioned Corps of the United States Public Health Service.


(b) The agency must include in the notice of procedural safeguards that the statute of limitations for the parent of a student to request an impartial due process hearing under 20 U.S.C. Section 1415(b) may be tolled if the parent is an active-duty servicemember and 50 U.S.C. Section 3936 applies to the parent.


(c) The commissioner shall adopt rules to implement this section.


Added by Acts 2017, 85th Leg., R.S., Ch. 1089 (H.B. 3632), Sec. 1, eff. June 15, 2017.


Sec. 29.017. TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY. (a) A student with a disability who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Chapter 31, Family Code, shall have the same right to make educational decisions as a student without a disability, except that the school district shall provide any notice required by this subchapter or 20 U.S.C. Section 1415 to both the student and the parents. All other rights accorded to parents under this subchapter or 20 U.S.C. Section 1415 transfer to the student.


(b) All rights accorded to parents under this subchapter or 20 U.S.C. Section 1415 transfer to students who are incarcerated in an adult or juvenile, state or local correctional institution.


(c) Not later than one year before the 18th birthday of a student with a disability, the school district at which the student is enrolled shall:


(1) provide to the student and the student's parents:


(A) written notice regarding the transfer of rights under this section; and


(B) information and resources regarding guardianship, alternatives to guardianship, including a supported decision-making agreement under Chapter 1357, Estates Code, and other supports and services that may enable the student to live independently; and


(2) ensure that the student's individualized education program includes a statement that the district provided the notice, information, and resources required under Subdivision (1).


(c-1) In accordance with 34 C.F.R. Section 300.520, the school district shall provide written notice to the student and the student's parents of the transfer of rights under this section. The notice must include the information and resources provided under Subsection (c)(1)(B).


(c-2) If a student with a disability or the student's parent requests information regarding guardianship or alternatives to guardianship from the school district at which the student is enrolled, the school district shall provide to the student or parent information and resources on supported decision-making agreements under Chapter 1357, Estates Code.


(c-3) The commissioner shall develop and post on the agency's Internet website a model form for use by school districts in notifying students and parents as required by Subsections (c) and (c-1). The form must include the information and resources described by Subsection (c). The commissioner shall review and update the form, including the information and resources, as necessary.


(d) The commissioner shall develop and post on the agency's Internet website the information and resources described by Subsections (c), (c-1), and (c-2).


(e) Nothing in this section prohibits a student from entering into a supported decision-making agreement under Chapter 1357, Estates Code, after the transfer of rights under this section.


(f) The commissioner shall adopt rules implementing the provisions of 34 C.F.R. Section 300.520(b).


Added by Acts 2001, 77th Leg., ch. 767, Sec. 8, eff. June 13, 2001.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 574 (S.B. 748), Sec. 3, eff. June 9, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1044 (H.B. 1886), Sec. 4, eff. June 15, 2017.


Sec. 29.018. SPECIAL EDUCATION GRANT. (a) From funds appropriated for the purposes of this section, federal funds, or any other funds available, the commissioner shall make grants available to school districts to assist districts in covering the cost of educating students with disabilities.


(b) A school district is eligible to apply for a grant under this section if:


(1) the district does not receive sufficient funds, including state funds provided under Section 48.102 and federal funds, for a student with disabilities to pay for the special education services provided to the student; or


(2) the district does not receive sufficient funds, including state funds provided under Section 48.102 and federal funds, for all students with disabilities in the district to pay for the special education services provided to the students.


(c) A school district that applies for a grant under this section must provide the commissioner with a report comparing the state and federal funds received by the district for students with disabilities and the expenses incurred by the district in providing special education services to students with disabilities.


(d) Expenses that may be included by a school district in applying for a grant under this section include the cost of training personnel to provide special education services to a student with disabilities.


(e) A school district that receives a grant under this section must educate students with disabilities in the least restrictive environment that is appropriate to meet the student's educational needs.


(f) The commissioner shall adopt rules as necessary to administer this section.


Added by Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 16, eff. September 1, 2009.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.027, eff. September 1, 2019.


Sec. 29.019. INDIVIDUALIZED EDUCATION PROGRAM FACILITATION. (a) The agency shall provide information to parents regarding individualized education program facilitation as an alternative dispute resolution method that may be used to avoid a potential dispute between a school district and a parent of a student with a disability. A district that chooses to use individualized education program facilitation shall provide information to parents regarding individualized education program facilitation. The information:


(1) must be included with other information provided to the parent of a student with a disability, although it may be provided as a separate document; and


(2) may be provided in a written or electronic format.


(b) Information provided by the agency under this section must indicate that individualized education program facilitation is an alternative dispute resolution method that some districts may choose to provide.


(c) If a school district chooses to offer individualized education program facilitation as an alternative dispute resolution method:


(1) the district may determine whether to use independent contractors, district employees, or other qualified individuals as facilitators;


(2) the information provided by the district under this section must include a description of any applicable procedures for requesting the facilitation; and


(3) the facilitation must be provided at no cost to a parent.


(d) The use of any alternative dispute resolution method, including individualized education program facilitation, must be voluntary on the part of the participants, and the use or availability of any such method may not in any manner be used to deny or delay the right to pursue a special education complaint, mediation, or due process hearing in accordance with federal law.


(e) Nothing in this section prohibits a school district from using individualized education program facilitation as the district's preferred method of conducting initial and annual admission, review, and dismissal committee meetings.


(f) The commissioner shall adopt rules necessary to implement this section.


Added by Acts 2013, 83rd Leg., R.S., Ch. 539 (S.B. 542), Sec. 1, eff. June 14, 2013.


Sec. 29.020. INDIVIDUALIZED EDUCATION PROGRAM FACILITATION PROJECT. (a) The agency shall develop rules in accordance with this section applicable to the administration of a state individualized education program facilitation project. The program shall include the provision of an independent individualized education program facilitator to facilitate an admission, review, and dismissal committee meeting with parties who are in a dispute about decisions relating to the provision of a free appropriate public education to a student with a disability. Facilitation implemented under the project must comply with rules developed under this subsection.


(b) The rules must include:


(1) a definition of independent individualized education program facilitation;


(2) forms and procedures for requesting, conducting, and evaluating independent individualized education program facilitation;


(3) training, knowledge, experience, and performance requirements for independent facilitators; and


(4) conditions required to be met in order for the agency to provide individualized education program facilitation at no cost to the parties.


(c) If the commissioner determines that adequate funding is available, the commissioner may authorize the use of federal funds to implement the individualized education program facilitation project in accordance with this section.


(d) The commissioner shall adopt rules necessary to implement this section.


Added by Acts 2013, 83rd Leg., R.S., Ch. 539 (S.B. 542), Sec. 1, eff. June 14, 2013.


Sec. 29.022. VIDEO SURVEILLANCE OF SPECIAL EDUCATION SETTINGS. (a) In order to promote student safety, on receipt of a written request authorized under Subsection (a-1), a school district or open-enrollment charter school shall provide equipment, including a video camera, to the school or schools in the district or the charter school campus or campuses specified in the request. A school or campus that receives equipment as provided by this subsection shall place, operate, and maintain one or more video cameras in self-contained classrooms and other special education settings in which a majority of the students in regular attendance are provided special education and related services and are assigned to one or more self-contained classrooms or other special education settings for at least 50 percent of the instructional day, provided that:


(1) a school or campus that receives equipment as a result of the request by a parent or staff member is required to place equipment only in classrooms or settings in which the parent's child is in regular attendance or to which the staff member is assigned, as applicable; and


(2) a school or campus that receives equipment as a result of the request by a board of trustees, governing body, principal, or assistant principal is required to place equipment only in classrooms or settings identified by the requestor, if the requestor limits the request to specific classrooms or settings subject to this subsection.


(a-1) For purposes of Subsection (a):


(1) a parent of a child who receives special education services in one or more self-contained classrooms or other special education settings may request in writing that equipment be provided to the school or campus at which the child receives those services;


(2) a board of trustees or governing body may request in writing that equipment be provided to one or more specified schools or campuses at which one or more children receive special education services in self-contained classrooms or other special education settings;


(3) the principal or assistant principal of a school or campus at which one or more children receive special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the principal's or assistant principal's school or campus; and


(4) a staff member assigned to work with one or more children receiving special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the school or campus at which the staff member works.


(a-2) Each school district or open-enrollment charter school shall designate an administrator at the primary administrative office of the district or school with responsibility for coordinating the provision of equipment to schools and campuses in compliance with this section.


(a-3) A written request must be submitted and acted on as follows:


(1) a parent, staff member, or assistant principal must submit a request to the principal or the principal's designee of the school or campus addressed in the request, and the principal or designee must provide a copy of the request to the administrator designated under Subsection (a-2);


(2) a principal must submit a request by the principal to the administrator designated under Subsection (a-2); and


(3) a board of trustees or governing body must submit a request to the administrator designated under Subsection (a-2), and the administrator must provide a copy of the request to the principal or the principal's designee of the school or campus addressed in the request.


(b) A school or campus that places a video camera in a classroom or other special education setting in accordance with Subsection (a) shall operate and maintain the video camera in the classroom or setting, as long as the classroom or setting continues to satisfy the requirements under Subsection (a), for the remainder of the school year in which the school or campus received the request, unless the requestor withdraws the request in writing. If for any reason a school or campus will discontinue operation of a video camera during a school year, not later than the fifth school day before the date the operation of the video camera will be discontinued, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue unless requested by a person eligible to make a request under Subsection (a-1). Not later than the 10th school day before the end of each school year, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue during the following school year unless a person eligible to make a request for the next school year under Subsection (a-1) submits a new request.


(c) Except as provided by Subsection (c-1), video cameras placed under this section must be capable of:


(1) covering all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out; and


(2) recording audio from all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out.


(c-1) The inside of a bathroom or any area in the classroom or other special education setting in which a student's clothes are changed may not be visually monitored, except for incidental coverage of a minor portion of a bathroom or changing area because of the layout of the classroom or setting.


(d) Before a school or campus activates a video camera in a classroom or other special education setting under this section, the school or campus shall provide written notice of the placement to all school or campus staff and to the parents of each student attending class or engaging in school activities in the classroom or setting.


(e) Except as provided by Subsection (e-1), a school district or open-enrollment charter school shall retain video recorded from a video camera placed under this section for at least three months after the date the video was recorded.


(e-1) If a person described by Subsection (i) requests to view a video recording from a video camera placed under this section, a school district or open-enrollment charter school must retain the recording from the date of receipt of the request until the person has viewed the recording and a determination has been made as to whether the recording documents an alleged incident. If the recording documents an alleged incident, the district or school shall retain the recording until the alleged incident has been resolved, including the exhaustion of all appeals.


(f) A school district or open-enrollment charter school may solicit and accept gifts, grants, and donations from any person for use in placing video cameras in classrooms or other special education settings under this section.


(g) This section does not:


(1) waive any immunity from liability of a school district or open-enrollment charter school, or of district or school officers or employees; or


(2) create any liability for a cause of action against a school district or open-enrollment charter school or against district or school officers or employees.


(h) A school district or open-enrollment charter school may not:


(1) allow regular or continual monitoring of video recorded under this section; or


(2) use video recorded under this section for teacher evaluation or for any other purpose other than the promotion of safety of students receiving special education services in a self-contained classroom or other special education setting.


(i) A video recording of a student made according to this section is confidential and may not be released or viewed except as provided by this subsection or Subsection (i-1) or (j). A school district or open-enrollment charter school shall release a recording for viewing by:


(1) an employee who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the employee;


(2) a parent of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent;


(3) appropriate Department of Family and Protective Services personnel as part of an investigation under Section 261.406, Family Code;


(4) a peace officer, a school nurse, a district or school administrator trained in de-escalation and restraint techniques as provided by commissioner rule, or a human resources staff member designated by the board of trustees of the school district or the governing body of the open-enrollment charter school in response to a report of an alleged incident or an investigation of district or school personnel or a report of alleged abuse committed by a student; or


(5) appropriate agency or State Board for Educator Certification personnel or agents as part of an investigation.


(i-1) A contractor or employee performing job duties relating to the installation, operation, or maintenance of video equipment or the retention of video recordings who incidentally views a video recording is not in violation of Subsection (i).


(k) The commissioner may adopt rules to implement and administer this section, including rules regarding the special education settings to which this section applies.


(l) A school district or open-enrollment charter school policy relating to the placement, operation, or maintenance of video cameras under this section must:


(1) include information on how a person may appeal an action by the district or school that the person believes to be in violation of this section or a policy adopted in accordance with this section, including the appeals process under Section 7.057;


(2) require that the district or school provide a response to a request made under this section not later than the seventh school business day after receipt of the request by the person to whom it must be submitted under Subsection (a-3) that authorizes the request or states the reason for denying the request;


(3) except as provided by Subdivision (5), require that a school or a campus begin operation of a video camera in compliance with this section not later than the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the request is authorized unless the agency grants an extension of time;


(4) permit the parent of a student whose admission, review, and dismissal committee has determined that the student's placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed under this section to make a request for the video camera by the later of:


(A) the date on which the current school year ends; or


(B) the 10th school business day after the date of the placement determination by the admission, review, and dismissal committee; and


(5) if a request is made by a parent in compliance with Subdivision (4), unless the agency grants an extension of time, require that a school or campus begin operation of a video camera in compliance with this section not later than the later of:


(A) the 10th school day of the fall semester; or


(B) the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the date the request is made.


(m) A school district, parent, staff member, or administrator may request an expedited review by the agency of the district's:


(1) denial of a request made under this section;


(2) request for an extension of time to begin operation of a video camera under Subsection (l)(3) or (5); or


(3) determination to not release a video recording to a person described by Subsection (i).


(n) If a school district, parent, staff member, or administrator requests an expedited review under Subsection (m), the agency shall notify all other interested parties of the request.


(o) If an expedited review has been requested under Subsection (m), the agency shall issue a preliminary judgment as to whether the district is likely to prevail on the issue under a full review by the agency. If the agency determines that the district is not likely to prevail, the district must fully comply with this section notwithstanding an appeal of the agency's decision. The agency shall notify the requestor and the district, if the district is not the requestor, of the agency's determination.


(p) The commissioner:


(1) shall adopt rules relating to the expedited review process under Subsections (m), (n), and (o), including standards for making a determination under Subsection (o); and


(2) may adopt rules relating to an expedited review process under Subsections (m), (n), and (o) for an open-enrollment charter school.


(q) The agency shall collect data relating to requests made under this section and actions taken by a school district or open-enrollment charter school in response to a request, including the number of requests made, authorized, and denied.


(r) A video recording under this section is a governmental record only for purposes of Section 37.10, Penal Code.


(s) This section applies to the placement, operation, and maintenance of a video camera in a self-contained classroom or other special education setting during the regular school year and extended school year services.


(t) A video camera placed under this section is not required to be in operation for the time during which students are not present in the classroom or other special education setting.


(u) In this section:


(1) "Parent" includes a guardian or other person standing in parental relation to a student.


(2) "School business day" means a day that campus or school district administrative offices are open.


(3) "Self-contained classroom" does not include a classroom that is a resource room instructional arrangement under Section 48.102.


(4) "Staff member" means a teacher, related service provider, paraprofessional, counselor, or educational aide assigned to work in a self-contained classroom or other special education setting.


(5) "Time-out" has the meaning assigned by Section 37.0021.


Added by Acts 2015, 84th Leg., R.S., Ch. 1147 (S.B. 507), Sec. 2, eff. June 19, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 751 (S.B. 1398), Sec. 1, eff. June 12, 2017.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.028, eff. September 1, 2019.


For expiration of this section, see Subsection (f).



Sec. 29.023. NOTICE OF RIGHTS. (a) The agency shall develop a notice for distribution as provided by Subsection (c) and posting on the agency's Internet website that indicates:


(1) the change made from 2016 to 2017 in reporting requirements for school districts and open-enrollment charter schools regarding the special education representation indicator adopted in the Performance-Based Monitoring Analysis System Manual; and


(2) in plain language, the rights of a child under both federal and state law and the general process available to initiate a referral of a child for a full individual and initial evaluation under Section 29.004 to determine the child's eligibility for special education services.


(b) A school district or open-enrollment charter school shall include in the notice developed by the agency under Subsection (a) information indicating where the local processes and procedures for initiating a referral for special education services eligibility evaluation may be found.


(c) By a date established by the commissioner, each school district or open-enrollment charter school shall provide the notice to the parent of each child who attends school in the district or at the school at any time during the 2019-2020 school year. A school district or open-enrollment charter school shall also make the notice available on request to any person. The notice must be available in English and Spanish, and a school district or open-enrollment charter school shall make a good faith effort to provide the notice in the parent's native language if the parent's native language is a language other than English or Spanish.


(d) The notice is in addition to requirements imposed by Section 26.0081.


(e) The commissioner may adopt rules necessary to implement this section.


(f) This section expires September 1, 2023.


Added by Acts 2019, 86th Leg., R.S., Ch. 954 (S.B. 139), Sec. 1, eff. June 14, 2019.


For expiration of this section, see Subsection (o).



Sec. 29.026. GRANT PROGRAM PROVIDING SERVICES TO STUDENTS WITH AUTISM. (a) The commissioner shall establish a program to award grants to school districts and open-enrollment charter schools that provide innovative services to students with autism.


(c) A program is eligible for a grant under this section if:


(1) the program operates as an independent campus or a separate program from the campus in which the program is located, with a separate budget;


(2) the program incorporates:


(A) evidence-based and research-based design;


(B) the use of empirical data on student achievement and improvement;


(C) parental support and collaboration;


(D) the use of technology;


(E) meaningful inclusion; and


(F) the ability to replicate the program for students statewide;


(3) the program gives priority for enrollment to students with autism;


(4) the program limits enrollment and services to students who are:


(A) at least three years of age; and


(B) younger than nine years of age or are enrolled in the third grade or a lower grade level; and


(5) the program allows a student who turns nine years of age or older during a school year to remain in the program until the end of that school year.


(d) A school district or open-enrollment charter school may not:


(1) charge a fee for the program, other than those authorized by law for students in public schools;


(2) require a parent to enroll a child in the program;


(3) allow an admission, review, and dismissal committee to place a student in the program without the written consent of the student's parent or guardian; or


(4) continue the placement of a student in the program after the student's parent or guardian revokes consent, in writing, to the student's placement in the program.


(e) A program under this section may:


(1) alter the length of the school day or school year or the number of minutes of instruction received by students;


(2) coordinate services with private or community-based providers;


(3) allow the enrollment of students without disabilities or with other disabilities, if approved by the commissioner; and


(4) adopt staff qualifications and staff to student ratios that differ from the applicable requirements of this title.


(f) The commissioner shall adopt rules creating an application and selection process for grants awarded under this section.


(g) The commissioner shall create an external panel of stakeholders, including parents of students with disabilities, to provide assistance in the selection of applications for the award of grants under this section.


(h) The commissioner shall award grants to fund not more than 10 programs that meet the eligibility criteria under Subsection (c). In selecting programs, the commissioner shall prioritize programs that are collaborations between multiple school districts, multiple charter schools, or school districts and charter schools. The selected programs must reflect the diversity of this state.


(i) The commissioner shall select programs and award grant funds to those programs beginning in the 2018-2019 school year. The selected programs are to be funded for two years.


(j) A grant awarded to a school district or open-enrollment charter school under this section is in addition to the Foundation School Program funds that the district or charter school is otherwise entitled to receive. A grant awarded under this section may not come out of Foundation School Program funds.


(k) The commissioner shall set aside an amount not to exceed $20 million from the total amount of funds appropriated for the 2018-2019 fiscal biennium to fund grants under this section. The commissioner shall use $10 million for the purposes of this section for each school year in the state fiscal biennium. A grant recipient may not receive more than $1 million for the 2018-2019 fiscal biennium. The commissioner shall reduce each district's and charter school's allotment proportionally to account for funds allocated under this section.


(l) The commissioner and any program selected under this section may accept gifts, grants, and donations from any public or private source, person, or group to implement and administer the program. The commissioner and any program selected under this section may not require any financial contribution from parents to implement and administer the program.


(m) The commissioner may consider a student with autism who is enrolled in a program funded under this section as funded in a mainstream placement, regardless of the amount of time the student receives services in a regular classroom setting.


(n) Not later than December 31, 2020, the commissioner shall publish a report on the grant program established under this section. The report must include:


(1) recommendations for statutory or funding changes necessary to implement successful innovations in the education of students with autism; and


(2) data on the academic and functional achievements of students enrolled in a program that received a grant under this section.


(o) This section expires September 1, 2021.


Added by Acts 2017, 85th Leg., 1st C.S., Ch. 8 (H.B. 21), Sec. 3, eff. November 14, 2017.


For expiration of this section, see Subsection (o).



Sec. 29.027. GRANT PROGRAM PROVIDING SERVICES TO STUDENTS WITH DYSLEXIA. (a) The commissioner shall establish a program to award grants to school districts and open-enrollment charter schools that provide innovative services to students with dyslexia.


(c) A program is eligible for a grant under this section if:


(1) the program operates as an independent campus or a separate program from the campus in which the program is located, with a separate budget;


(2) the program incorporates:


(A) evidence-based and research-based design;


(B) the use of empirical data on student achievement and improvement;


(C) parental support and collaboration;


(D) the use of technology;


(E) meaningful inclusion; and


(F) the ability to replicate the program for students statewide;


(3) the program gives priority for enrollment to students with dyslexia;


(4) the program limits enrollment and services to students who are:


(A) at least three years of age; and


(B) younger than nine years of age or are enrolled in the third grade or a lower grade level; and


(5) the program allows a student who turns nine years of age or older during a school year to remain in the program until the end of that school year.


(d) A school district or open-enrollment charter school may not:


(1) charge a fee for the program, other than those authorized by law for students in public schools;


(2) require a parent to enroll a child in the program;


(3) allow an admission, review, and dismissal committee to place a student in the program without the written consent of the student's parent or guardian; or


(4) continue the placement of a student in the program after the student's parent or guardian revokes consent, in writing, to the student's placement in the program.


(e) A program under this section may:


(1) alter the length of the school day or school year or the number of minutes of instruction received by students;


(2) coordinate services with private or community-based providers;


(3) allow the enrollment of students without disabilities or with other disabilities, if approved by the commissioner; and


(4) adopt staff qualifications and staff to student ratios that differ from the applicable requirements of this title.


(f) The commissioner shall adopt rules creating an application and selection process for grants awarded under this section.


(g) The commissioner shall create an external panel of stakeholders, including parents of students with disabilities, to provide assistance in the selection of applications for the award of grants under this section.


(h) The commissioner shall award grants to fund not more than 10 programs that meet the eligibility criteria under Subsection (c). In selecting programs, the commissioner shall prioritize programs that are collaborations between multiple school districts, multiple charter schools, or school districts and charter schools. The selected programs must reflect the diversity of this state.


(i) The commissioner shall select programs and award grant funds to those programs beginning in the 2018-2019 school year. The selected programs are to be funded for two years.


(j) A grant awarded to a school district or open-enrollment charter school under this section is in addition to the Foundation School Program funds that the district or charter school is otherwise entitled to receive. A grant awarded under this section may not come out of Foundation School Program funds.


(k) The commissioner shall set aside an amount not to exceed $20 million from the total amount of funds appropriated for the 2018-2019 fiscal biennium to fund grants under this section. The commissioner shall use $10 million for the purposes of this section for each school year in the state fiscal biennium. A grant recipient may not receive more than $1 million for the 2018-2019 fiscal biennium. The commissioner shall reduce each district's and charter school's allotment proportionally to account for funds allocated under this section.


(l) The commissioner and any program selected under this section may accept gifts, grants, and donations from any public or private source, person, or group to implement and administer the program. The commissioner and any program selected under this section may not require any financial contribution from parents to implement and administer the program.


(m) The commissioner may consider a student with dyslexia who is enrolled in a program funded under this section as funded in a mainstream placement, regardless of the amount of time the student receives services in a regular classroom setting.


(n) Not later than December 31, 2020, the commissioner shall publish a report on the grant program established under this section. The report must include:


(1) recommendations for statutory or funding changes necessary to implement successful innovations in the education of students with dyslexia; and


(2) data on the academic and functional achievements of students enrolled in a program that received a grant under this section.


(o) This section expires September 1, 2021.


Added by Acts 2017, 85th Leg., 1st C.S., Ch. 8 (H.B. 21), Sec. 3, eff. November 14, 2017.


SUBCHAPTER B. BILINGUAL EDUCATION AND SPECIAL LANGUAGE PROGRAMS



Sec. 29.051. STATE POLICY. English is the basic language of this state. Public schools are responsible for providing a full opportunity for all students to become competent in speaking, reading, writing, and comprehending the English language. Large numbers of students in the state come from environments in which the primary language is other than English. Experience has shown that public school classes in which instruction is given only in English are often inadequate for the education of those students. The mastery of basic English language skills is a prerequisite for effective participation in the state's educational program. Bilingual education and special language programs can meet the needs of those students and facilitate their integration into the regular school curriculum. Therefore, in accordance with the policy of the state to ensure equal educational opportunity to every student, and in recognition of the educational needs of students of limited English proficiency, this subchapter provides for the establishment of bilingual education and special language programs in the public schools and provides supplemental financial assistance to help school districts meet the extra costs of the programs.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.052. DEFINITIONS. In this subchapter:


(1) "Student of limited English proficiency" means a student whose primary language is other than English and whose English language skills are such that the student has difficulty performing ordinary classwork in English.


(2) "Parent" includes a legal guardian of a student.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.053. ESTABLISHMENT OF BILINGUAL EDUCATION AND SPECIAL LANGUAGE PROGRAMS. (a) The agency shall establish a procedure for identifying school districts that are required to offer bilingual education and special language programs in accordance with this subchapter.


(b) Within the first four weeks following the first day of school, the language proficiency assessment committee established under Section 29.063 shall determine and report to the board of trustees of the district the number of students of limited English proficiency on each campus and shall classify each student according to the language in which the student possesses primary proficiency. The board shall report that information to the agency before November 1 each year.


(c) Each district with an enrollment of 20 or more students of limited English proficiency in any language classification in the same grade level shall offer a bilingual education or special language program.


(d) Each district that is required to offer bilingual education and special language programs under this section shall offer the following for students of limited English proficiency:


(1) bilingual education in kindergarten through the elementary grades;


(2) bilingual education, instruction in English as a second language, or other transitional language instruction approved by the agency in post-elementary grades through grade 8; and


(3) instruction in English as a second language in grades 9 through 12.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.054. EXCEPTION. (a) If a program other than bilingual education must be used in kindergarten through the elementary grades, documentation for the exception must be filed with and approved by the agency.


(b) An application for an exception may be filed with the agency when a district is unable to hire a sufficient number of teachers with teaching certificates appropriate for bilingual education instruction to staff the required program. The application must be accompanied by:


(1) documentation showing that the district has taken all reasonable affirmative steps to secure teachers with teaching certificates appropriate for bilingual education instruction and has failed;


(2) documentation showing that the district has affirmative hiring policies and procedures consistent with the need to serve limited English proficiency students;


(3) documentation showing that, on the basis of district records, no teacher having a teaching certificate appropriate for bilingual instruction or emergency credentials has been unjustifiably denied employment by the district within the past 12 months; and


(4) a plan detailing specific measures to be used by the district to eliminate the conditions that created the need for an exception.


(c) An exception shall be granted under this section on an individual district basis and is valid for only one year. Application for an exception for a second or succeeding year must be accompanied by the documentation prescribed by Subsection (b).


(d) During the period for which a district is granted an exception under this section, the district must use alternative methods approved by the agency to meet the needs of its students of limited English proficiency, including hiring teaching personnel under a bilingual emergency permit.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.055. PROGRAM CONTENT; METHOD OF INSTRUCTION. (a) A bilingual education program established by a school district shall be a full-time program of dual-language instruction that provides for learning basic skills in the primary language of the students enrolled in the program and for carefully structured and sequenced mastery of English language skills. A program of instruction in English as a second language established by a school district shall be a program of intensive instruction in English from teachers trained in recognizing and dealing with language differences.


(b) A program of bilingual education or of instruction in English as a second language shall be designed to consider the students' learning experiences and shall incorporate the cultural aspects of the students' backgrounds.


(c) In subjects such as art, music, and physical education, students of limited English proficiency shall participate fully with English-speaking students in regular classes provided in the subjects.


(d) Elective courses included in the curriculum may be taught in a language other than English.


(e) Each school district shall provide students enrolled in the program a meaningful opportunity to participate fully with other students in all extracurricular activities.


(f) If money is appropriated for the purpose, the agency shall establish a limited number of pilot programs for the purpose of examining alternative methods of instruction in bilingual education and special language programs.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.056. ENROLLMENT OF STUDENTS IN PROGRAM. (a) The agency shall establish standardized criteria for the identification, assessment, and classification of students of limited English proficiency eligible for entry into the program or exit from the program. The student's parent must approve a student's entry into the program, exit from the program, or placement in the program. The school district or parent may appeal the decision under Section 29.064. The criteria for identification, assessment, and classification may include:


(1) results of a home language survey conducted within four weeks of each student's enrollment to determine the language normally used in the home and the language normally used by the student, conducted in English and the home language, signed by the student's parents if the student is in kindergarten through grade 8 or by the student if the student is in grades 9 through 12, and kept in the student's permanent folder by the language proficiency assessment committee;


(2) the results of an agency-approved English language proficiency test administered to all students identified through the home survey as normally speaking a language other than English to determine the level of English language proficiency, with students in kindergarten or grade 1 being administered an oral English proficiency test and students in grades 2 through 12 being administered an oral and written English proficiency test; and


(3) the results of an agency-approved proficiency test in the primary language administered to all students identified under Subdivision (2) as being of limited English proficiency to determine the level of primary language proficiency, with students in kindergarten or grade 1 being administered an oral primary language proficiency test and students in grades 2 through 12 being administered an oral and written primary language proficiency test.


(b) Tests under Subsection (a) shall be administered by professionals or paraprofessionals with the appropriate English and primary language skills and the training required by the test publisher.


(c) The language proficiency assessment committee may classify a student as limited English proficiency if:


(1) the student's ability in English is so limited or the student's disabilities are so severe that assessment procedures cannot be administered;


(2) the student's score or relative degree of achievement on the agency-approved English proficiency test is below the levels established by the agency as indicative of reasonable proficiency;


(3) the student's primary language proficiency score as measured by an agency-approved test is greater than the student's proficiency in English; or


(4) the language proficiency assessment committee determines, based on other information, including a teacher evaluation, parental viewpoint, or student interview, that the student's primary language proficiency is greater than the student's proficiency in English or that the student is not reasonably proficient in English.


(d) Not later than the 10th day after the date of the student's classification as a student of limited English proficiency, the language proficiency assessment committee shall give written notice of the classification to the student's parent. The notice must be in English and the parent's primary language. The parents of students eligible to participate in the required bilingual education program shall be informed of the benefits of the bilingual education or special language program and that it is an integral part of the school program.


(e) The language proficiency assessment committee may retain, for documentation purposes, all records obtained under this section.


(f) The district may not refuse to provide instruction in a language other than English to a student solely because the student has a disability.


(g) A district may transfer a student of limited English proficiency out of a bilingual education or special language program for the first time or a subsequent time if the student is able to participate equally in a regular all-English instructional program as determined by:


(1) agency-approved tests administered at the end of each school year to determine the extent to which the student has developed oral and written language proficiency and specific language skills in English;


(2) satisfactory performance on the reading assessment instrument under Section 39.023(a) or an English language arts assessment instrument under Section 39.023(c), as applicable, with the assessment instrument administered in English, or, if the student is enrolled in the first or second grade, an achievement score at or above the 40th percentile in the reading and language arts sections of an English standardized test approved by the agency; and


(3) agency-approved criterion-referenced tests and the results of a subjective teacher evaluation.


(h) If later evidence suggests that a student who has been transferred out of a bilingual education or special language program has inadequate English proficiency and achievement, the language proficiency assessment committee may reenroll the student in the program. Classification of students for reenrollment must be based on the criteria required by this section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 3.06, eff. May 31, 2006.


Sec. 29.0561. EVALUATION OF TRANSFERRED STUDENTS; REENROLLMENT. (a) The language proficiency assessment committee shall reevaluate a student who is transferred out of a bilingual education or special language program under Section 29.056(g) if the student earns a failing grade in a subject in the foundation curriculum under Section 28.002(a)(1) during any grading period in the first two school years after the student is transferred to determine whether the student should be reenrolled in a bilingual education or special language program.


(b) During the first two school years after a student is transferred out of a bilingual education or special language program under Section 29.056(g), the language proficiency assessment committee shall review the student's performance and consider:


(1) the total amount of time the student was enrolled in a bilingual education or special language program;


(2) the student's grades each grading period in each subject in the foundation curriculum under Section 28.002(a)(1);


(3) the student's performance on each assessment instrument administered under Section 39.023(a) or (c);


(4) the number of credits the student has earned toward high school graduation, if applicable; and


(5) any disciplinary actions taken against the student under Subchapter A, Chapter 37.


(c) After an evaluation under this section, the language proficiency assessment committee may require intensive instruction for the student or reenroll the student in a bilingual education or special language program.


Added by Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 3.07, eff. May 31, 2006.


Sec. 29.057. FACILITIES; CLASSES. (a) Bilingual education and special language programs must be located in the regular public schools of the district rather than in separate facilities.


(b) Students enrolled in bilingual education or a special language program shall be placed in classes with other students of approximately the same age and level of educational attainment. The school district shall ensure that the instruction given each student is appropriate to the student's level of educational attainment, and the district shall keep adequate records of the educational level and progress of each student enrolled in the program.


(c) The maximum student-teacher ratio shall be set by the agency and shall reflect the special educational needs of students enrolled in the programs.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.058. ENROLLMENT OF STUDENTS WHO DO NOT HAVE LIMITED ENGLISH PROFICIENCY. With the approval of the school district and a student's parents, a student who does not have limited English proficiency may also participate in a bilingual education program. The number of participating students who do not have limited English proficiency may not exceed 40 percent of the number of students enrolled in the program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.059. COOPERATION AMONG DISTRICTS. (a) A school district may join with one or more other districts to provide the bilingual education and special language programs required by this subchapter. The availability of the programs shall be publicized throughout the districts involved.


(b) A school district may allow a nonresident student of limited English proficiency to enroll in or attend its bilingual education or special language programs if the student's district of residence does not provide an appropriate program. The tuition for the student shall be paid by the district in which the student resides.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.060. PRESCHOOL, SUMMER SCHOOL, AND EXTENDED TIME PROGRAMS. (a) Each school district that is required to offer a bilingual education or special language program shall offer a voluntary program for children of limited English proficiency who will be eligible for admission to kindergarten or the first grade at the beginning of the next school year. A school that operates on a system permitted by this code other than a semester system shall offer 120 hours of instruction on a schedule the board of trustees of the district establishes. A school that operates on a semester system shall offer the program:


(1) during the period school is recessed for the summer; and


(2) for one-half day for eight weeks or on a similar schedule approved by the board of trustees.


(b) Enrollment of a child in the program is optional with the parent of the child.


(c) The program must be an intensive bilingual education or special language program that meets standards established by the agency. The student/teacher ratio for the program may not exceed 18/1.


(d) A school district may establish on a full- or part-time basis other summer school, extended day, or extended week bilingual education or special language programs for students of limited English proficiency and may join with other districts in establishing the programs.


(e) The programs required or authorized by this section may not be a substitute for programs required to be provided during the regular school year.


(f) The legislature may appropriate money from the foundation school fund for support of a program under Subsection (a).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.061. BILINGUAL EDUCATION AND SPECIAL LANGUAGE PROGRAM TEACHERS. (a) The State Board for Educator Certification shall provide for the issuance of teaching certificates appropriate for bilingual education instruction to teachers who possess a speaking, reading, and writing ability in a language other than English in which bilingual education programs are offered and who meet the general requirements of Chapter 21. The board shall also provide for the issuance of teaching certificates appropriate for teaching English as a second language. The board may issue emergency endorsements in bilingual education and in teaching English as a second language.


(b) A teacher assigned to a bilingual education program using one of the following program models must be appropriately certified for bilingual education by the board:


(1) transitional bilingual/early exit program model; or


(2) transitional bilingual/late exit program model.


(b-1) A teacher assigned to a bilingual education program using a dual language immersion/one-way or two-way program model must be appropriately certified by the board for:


(1) bilingual education for the component of the program provided in a language other than English; and


(2) bilingual education or English as a second language for the component of the program provided in English.


(b-2) A school district that provides a bilingual education program using a dual language immersion/one-way or two-way program model may assign a teacher certified under Subsection (b-1)(1) for the language other than English component of the program and a different teacher certified under Subsection (b-1)(2) for the English language component.


(c) A teacher assigned to an English as a second language program must be appropriately certified for English as a second language by the board.


(d) A school district may compensate a bilingual education or special language teacher for participating in a continuing education program that is in addition to the teacher's regular contract. The continuing education program must be designed to provide advanced bilingual education or special language program endorsement or skills.


(e) The State Board for Educator Certification and the Texas Higher Education Coordinating Board shall develop a comprehensive plan for meeting the teacher supply needs created by the programs outlined in this subchapter.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 453 (H.B. 218), Sec. 1, eff. June 15, 2015.


Sec. 29.062. COMPLIANCE. (a) The legislature recognizes that compliance with this subchapter is an imperative public necessity. Therefore, in accordance with the policy of the state, the agency shall evaluate the effectiveness of programs under this subchapter based on the achievement indicators adopted under Section 39.053(c), including the results of assessment instruments. The agency may combine evaluations under this section with federal accountability measures concerning students of limited English proficiency.


(b) The areas to be monitored shall include:


(1) program content and design;


(2) program coverage;


(3) identification procedures;


(4) classification procedures;


(5) staffing;


(6) learning materials;


(7) testing materials;


(8) reclassification of students for either entry into regular classes conducted exclusively in English or reentry into a bilingual education or special education program; and


(9) activities of the language proficiency assessment committees.


(c) Not later than the 30th day after the date of an on-site monitoring inspection, the agency shall report its findings to the school district or open-enrollment charter school and to the division of accreditation.


(d) The agency shall notify a school district or open-enrollment charter school found in noncompliance in writing, not later than the 30th day after the date of the on-site monitoring. The district or open-enrollment charter school shall take immediate corrective action.


(e) If a school district or open-enrollment charter school fails to satisfy appropriate standards adopted by the commissioner for purposes of Subsection (a), the agency shall apply sanctions, which may include the removal of accreditation, loss of foundation school funds, or both.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 201, Sec. 19, eff. Sept. 1, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 33, eff. June 19, 2009.


Acts 2015, 84th Leg., R.S., Ch. 1094 (H.B. 2804), Sec. 12, eff. June 19, 2015.


Acts 2017, 85th Leg., R.S., Ch. 807 (H.B. 22), Sec. 4, eff. June 15, 2017.


Sec. 29.063. LANGUAGE PROFICIENCY ASSESSMENT COMMITTEES. (a) Each school district that is required to offer bilingual education and special language programs shall establish a language proficiency assessment committee.


(b) Each committee shall include a professional bilingual educator, a professional transitional language educator, a parent of a limited English proficiency student, and a campus administrator.


(c) The language proficiency assessment committee shall:


(1) review all pertinent information on limited English proficiency students, including the home language survey, the language proficiency tests in English and the primary language, each student's achievement in content areas, and each student's emotional and social attainment;


(2) make recommendations concerning the most appropriate placement for the educational advancement of the limited English proficiency student after the elementary grades;


(3) review each limited English proficiency student's progress at the end of the school year in order to determine future appropriate placement;


(4) monitor the progress of students formerly classified as limited English proficiency who have transferred out of the bilingual education or special language program and, based on the information, designate the most appropriate placement for such students; and


(5) determine the appropriateness of a program that extends beyond the regular school year based on the needs of each limited English proficiency student.


(d) The agency may prescribe additional duties for language proficiency assessment committees.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.064. APPEALS. A parent of a student enrolled in a school district offering bilingual education or special language programs may appeal to the commissioner if the district fails to comply with the requirements established by law or by the agency as authorized by this subchapter. If the parent disagrees with the placement of the student in the program, the parent may appeal that decision to the board of trustees. Appeals shall be conducted in accordance with procedures adopted by the commissioner.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.065. ASSISTANCE BY AGENCY. The agency shall develop tools to assist school districts and open-enrollment charter schools in implementing bilingual education and special language programs under this chapter.


Added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.016, eff. June 12, 2019.


Sec. 29.066. PEIMS REPORTING REQUIREMENTS. (a) A school district that is required to offer bilingual education or special language programs shall include the following information in the district's Public Education Information Management System (PEIMS) report:


(1) demographic information, as determined by the commissioner, on students enrolled in district bilingual education or special language programs;


(2) the number and percentage of students enrolled in each instructional model of a bilingual education or special language program offered by the district; and


(3) the number and percentage of students identified as students of limited English proficiency who do not receive specialized instruction.


(b) For purposes of this section, the commissioner shall adopt rules to classify programs under this section as follows:


(1) if the program is a bilingual education program, the program must be classified under the Public Education Information Management System (PEIMS) report as:


(A) transitional bilingual/early exit: a bilingual program that serves students identified as students of limited English proficiency in both English and Spanish and transfers a student to English-only instruction not earlier than two or later than five years after the student enrolls in school;


(B) transitional bilingual/late exit: a bilingual program that serves students identified as students of limited English proficiency in both English and Spanish and transfers a student to English-only instruction not earlier than six or later than seven years after the student enrolls in school;


(C) dual language immersion/two-way: a biliteracy program that integrates students proficient in English and students identified as students of limited English proficiency in both English and Spanish and transfers a student identified as a student of limited English proficiency to English-only instruction not earlier than six or later than seven years after the student enrolls in school; or


(D) dual language immersion/one-way: a biliteracy program that serves only students identified as students of limited English proficiency in both English and Spanish and transfers a student to English-only instruction not earlier than six or later than seven years after the student enrolls in school; and


(2) if the program is a special language program, the program must be classified under the Public Education Information Management System (PEIMS) report as:


(A) English as a second language/content-based: an English program that serves students identified as students of limited English proficiency in English only by providing a full-time teacher certified under Section 29.061(c) to provide supplementary instruction for all content area instruction; or


(B) English as a second language/pull-out: an English program that serves students identified as students of limited English proficiency in English only by providing a part-time teacher certified under Section 29.061(c) to provide English language arts instruction exclusively, while the student remains in a mainstream instructional arrangement in the remaining content areas.


(c) If the school district has received a waiver and is not required to offer a bilingual education or special language program in a student's native language or if the student's parents have refused to approve the student's entry into a program as provided by Section 29.056, the program must be classified under the Public Education Information Management System (PEIMS) report as: no bilingual education or special language services provided.


Added by Acts 2007, 80th Leg., R.S., Ch. 1340 (S.B. 1871), Sec. 2, eff. June 15, 2007.


SUBCHAPTER C. COMPENSATORY EDUCATION PROGRAMS



Sec. 29.081. COMPENSATORY, INTENSIVE, AND ACCELERATED INSTRUCTION. (a) Each school district shall use the student performance data resulting from the basic skills assessment instruments and achievement tests administered under Subchapter B, Chapter 39, to design and implement appropriate compensatory, intensive, or accelerated instructional services for students in the district's schools that enable the students to be performing at grade level at the conclusion of the next regular school term.


(b) Each district shall provide accelerated instruction to a student enrolled in the district who has taken an end-of-course assessment instrument administered under Section 39.023(c) and has not performed satisfactorily on the assessment instrument or who is at risk of dropping out of school.


(b-1) Each school district shall offer before the next scheduled administration of the assessment instrument, without cost to the student, additional accelerated instruction to each student in any subject in which the student failed to perform satisfactorily on an end-of-course assessment instrument required for graduation.


(b-2) A district that is required to provide accelerated instruction under Subsection (b-1) shall separately budget sufficient funds, including funds under Section 48.104, for that purpose.


(b-3) A district shall evaluate the effectiveness of accelerated instruction programs under Subsection (b-1) and annually hold a public hearing to consider the results.


(c) Each school district shall evaluate and document the effectiveness of the accelerated instruction in reducing any disparity in performance on assessment instruments administered under Subchapter B, Chapter 39, or disparity in the rates of high school completion between students at risk of dropping out of school and all other district students.


Text of subsection as amended by Acts 2019, 86th Leg., R.S., Ch. 403 (S.B. 1746), Sec. 1



(d) For purposes of this section, "student at risk of dropping out of school" includes each student who is under 26 years of age and who:


(1) was not advanced from one grade level to the next for one or more school years;


(2) if the student is in grade 7, 8, 9, 10, 11, or 12, did not maintain an average equivalent to 70 on a scale of 100 in two or more subjects in the foundation curriculum during a semester in the preceding or current school year or is not maintaining such an average in two or more subjects in the foundation curriculum in the current semester;


(3) did not perform satisfactorily on an assessment instrument administered to the student under Subchapter B, Chapter 39, and who has not in the previous or current school year subsequently performed on that instrument or another appropriate instrument at a level equal to at least 110 percent of the level of satisfactory performance on that instrument;


(4) if the student is in prekindergarten, kindergarten, or grade 1, 2, or 3, did not perform satisfactorily on a readiness test or assessment instrument administered during the current school year;


(5) is pregnant or is a parent;


(6) has been placed in an alternative education program in accordance with Section 37.006 during the preceding or current school year;


(7) has been expelled in accordance with Section 37.007 during the preceding or current school year;


(8) is currently on parole, probation, deferred prosecution, or other conditional release;


(9) was previously reported through the Public Education Information Management System (PEIMS) to have dropped out of school;


(10) is a student of limited English proficiency, as defined by Section 29.052;


(11) is in the custody or care of the Department of Family and Protective Services or has, during the current school year, been referred to the department by a school official, officer of the juvenile court, or law enforcement official;


(12) is homeless, as defined by 42 U.S.C. Section 11302, and its subsequent amendments;


(13) resided in the preceding school year or resides in the current school year in a residential placement facility in the district, including a detention facility, substance abuse treatment facility, emergency shelter, psychiatric hospital, halfway house, cottage home operation, specialized child-care home, or general residential operation; or


(14) has been incarcerated or has a parent or guardian who has been incarcerated, within the lifetime of the student, in a penal institution as defined by Section 1.07, Penal Code.


Text of subsection as amended by Acts 2019, 86th Leg., R.S., Ch. 1060 (H.B. 1051), Sec. 2, and Ch. 597 (S.B. 668), Sec. 1.06



(d) For purposes of this section, "student at risk of dropping out of school" includes each student who:


(1) is under 26 years of age and who:


(A) was not advanced from one grade level to the next for one or more school years;


(B) if the student is in grade 7, 8, 9, 10, 11, or 12, did not maintain an average equivalent to 70 on a scale of 100 in two or more subjects in the foundation curriculum during a semester in the preceding or current school year or is not maintaining such an average in two or more subjects in the foundation curriculum in the current semester;


(C) did not perform satisfactorily on an assessment instrument administered to the student under Subchapter B, Chapter 39, and who has not in the previous or current school year subsequently performed on that instrument or another appropriate instrument at a level equal to at least 110 percent of the level of satisfactory performance on that instrument;


(D) if the student is in prekindergarten, kindergarten, or grade 1, 2, or 3, did not perform satisfactorily on a readiness test or assessment instrument administered during the current school year;


(E) is pregnant or is a parent;


(F) has been placed in an alternative education program in accordance with Section 37.006 during the preceding or current school year;


(G) has been expelled in accordance with Section 37.007 during the preceding or current school year;


(H) is currently on parole, probation, deferred prosecution, or other conditional release;


(I) was previously reported through the Public Education Information Management System (PEIMS) to have dropped out of school;


(J) is a student of limited English proficiency, as defined by Section 29.052;


(K) is in the custody or care of the Department of Family and Protective Services or has, during the current school year, been referred to the department by a school official, officer of the juvenile court, or law enforcement official;


(L) is homeless; or


(M) resided in the preceding school year or resides in the current school year in a residential placement facility in the district, including a detention facility, substance abuse treatment facility, emergency shelter, psychiatric hospital, halfway house, cottage home operation, specialized child-care home, or general residential operation; or


(2) regardless of the student's age, participates in an adult education program provided under a high school diploma and industry certification charter school program under Section 29.259.


(d-1) Notwithstanding Subsection (d)(1)(A), a student is not considered a student at risk of dropping out of school if the student did not advance from prekindergarten or kindergarten to the next grade level only as the result of the request of the student's parent.


(e) A school district may use a private or public community-based dropout recovery education program to provide alternative education programs for students at risk of dropping out of school. The program may be offered:


(1) at a campus; or


(2) through the use of an Internet online program that leads to a high school diploma and prepares the student to enter the workforce.


(e-1) A campus-based dropout recovery education program must:


(1) provide not less than four hours of instructional time per day;


(2) employ as faculty and administrators persons with baccalaureate or advanced degrees;


(3) provide at least one instructor for each 28 students;


(4) perform satisfactorily according to performance indicators and accountability standards adopted for alternative education programs by the commissioner; and


(5) comply with this title and rules adopted under this title except as otherwise provided by this subsection.


(e-2) An Internet online dropout recovery education program must:


(1) include as a part of its curriculum credentials, certifications, or other course offerings that relate directly to employment opportunities in the state;


(2) employ as faculty and administrators persons with baccalaureate or advanced degrees;


(3) provide an academic coach and local advocate for each student;


(4) use an individual learning plan to monitor each student's progress;


(5) establish satisfactory requirements for the monthly progress of students according to standards set by the commissioner;


(6) provide a monthly report to the student's school district regarding the student's progress;


(7) perform satisfactorily according to performance indicators and accountability standards adopted for alternative education programs by the commissioner; and


(8) comply with this title and rules adopted under this title except as otherwise provided by this subsection.


(f) The commissioner shall include students in attendance in a program under Subsection (e) in the computation of the district's average daily attendance for funding purposes.


(g) In addition to students described by Subsection (d), a student who satisfies local eligibility criteria adopted by the board of trustees of a school district may receive instructional services under this section. The number of students receiving services under this subsection during a school year may not exceed 10 percent of the number of students described by Subsection (d) who received services from the district during the preceding school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 1588, Sec. 1, eff. Aug. 30, 1999; Acts 2001, 77th Leg., ch. 725, Sec. 1, 2, eff. June 13, 2001.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1312 (S.B. 1031), Sec. 4, eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 690 (H.B. 2703), Sec. 1, eff. June 19, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 20, eff. June 10, 2013.


Acts 2017, 85th Leg., R.S., Ch. 317 (H.B. 7), Sec. 2, eff. September 1, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1094 (H.B. 3706), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 403 (S.B. 1746), Sec. 1, eff. June 2, 2019.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.06, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.029, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 1060 (H.B. 1051), Sec. 2, eff. June 14, 2019.


Sec. 29.082. OPTIONAL EXTENDED YEAR PROGRAM. (a) A school district may set aside an amount from the district's allotment under Section 48.104 or may apply to the agency for funding of an extended year program for a period not to exceed 30 instructional days for students in:


(1) kindergarten through grade 11 who are identified as likely not to be promoted to the next grade level for the succeeding school year; or


(2) grade 12 who are identified as likely not to graduate from high school before the beginning of the succeeding school year.


(b) The commissioner may adopt rules for the administration of programs provided under this section.


(c) A school district may not enroll more than 16 students in a class provided under this section.


(d) Each class provided under this section shall be taught by a teacher who has completed successfully a program that provides training to teach a class under this section and that satisfies standards the commissioner establishes.


(e) A student who attends at least 90 percent of the program days of a program under this section and who satisfies the requirements for promotion prescribed by Section 28.021 shall be promoted to the next grade level at the beginning of the next school year unless a parent of the student presents a written request to the school principal that the student not be promoted to the next grade level. As soon as practicable after receiving the request from a parent, the principal shall hold a formal meeting with the student's parent, extended year program teacher, and school counselor. During the meeting, the principal, teacher, or school counselor shall explain the longitudinal statistics on the academic performance of students who are not promoted to the next grade level and provide information on the effect of retention on a student's self-esteem and on the likelihood of a student dropping out of school. After the meeting, the parent may withdraw the request that the student not be promoted to the next grade level. If the parent of a student eligible for promotion under this subsection withdraws the request, the student shall be promoted. If a student is promoted under this subsection, the school district shall continue to use innovative practices to ensure that the student is successful in school in succeeding years.


(f) A school district that provides a program under this section shall adopt a policy designed to lead to immediate reduction and ultimate elimination of student retention.


(g) A school district shall provide transportation to each student who is required to attend a program under this section and who is eligible for regular transportation services.


(h) The commissioner shall give priority to applications for extended year programs to districts with high concentrations of educationally disadvantaged students.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 738, Sec. 1, eff. June 17, 1997; Acts 2003, 78th Leg., ch. 1212, Sec. 8, eff. June 20, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 17, eff. September 1, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 22, eff. June 14, 2013.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.030, eff. September 1, 2019.


Sec. 29.0821. OPTIONAL FLEXIBLE YEAR PROGRAM. (a) A school district may provide a flexible year program for students who did not or are likely not to perform successfully on an assessment instrument administered under Section 39.023 or who would not otherwise be promoted to the next grade level.


(b) To enable a school district to provide additional instructional days for a program under this section, with the approval of the commissioner, a school district may:


(1) provide a number of days of instruction during the regular school year that is not more than 10 days fewer than the number required under Section 25.081(a); and


(2) use for instructional purposes not more than five days that would otherwise be used for staff development or teacher preparation.


(c) Notwithstanding any reduction in the number of instructional days in the regular school year or in the number of staff development days, each educator employed under a 10-month contract must provide the minimum days of service required under Section 21.401.


(d) A school district may require educational support personnel to provide service as necessary for an optional flexible year program.


(e) The commissioner may adopt rules for the administration of programs provided under this section.


Added by Acts 2003, 78th Leg., ch. 824, Sec. 1, eff. June 20, 2003.


Sec. 29.0822. OPTIONAL FLEXIBLE SCHOOL DAY PROGRAM. (a) Notwithstanding Section 25.081 or 25.082, a school district may apply to the commissioner to provide a flexible school day program for students who:


(1) have dropped out of school or are at risk of dropping out of school as defined by Section 29.081;


(2) attend a campus that is implementing an innovative redesign of the campus or an early college high school under a plan approved by the commissioner; or


(3) as a result of attendance requirements under Section 25.092, will be denied credit for one or more classes in which the students have been enrolled.


(b) To enable a school district to provide a program under this section that meets the needs of students described by Subsection (a), a school district that meets application requirements may:


(1) provide flexibility in the number of hours each day a student attends;


(2) provide flexibility in the number of days each week a student attends;


(3) allow a student to enroll in less than or more than a full course load; or


(4) allow a student to enroll in a dropout recovery program in which courses are conducted online.


(c) Except in the case of a course designed for a student described by Subsection (a)(3) or enrolled in a course described by Subsection (b)(4), a course offered in a program under this section must provide for at least the same number of instructional hours as required for a course offered in a program that meets the required minimum number of minutes of operation under Section 25.081.


(d) The commissioner may adopt rules for the administration of this section, including rules establishing application requirements. Subject to Subsection (d-1), the commissioner shall calculate average daily attendance for students served under this section. The commissioner shall allow accumulations of hours of instruction for students whose schedule would not otherwise allow full state funding. Funding under this subsection shall be determined based on the number of instructional days in the school district calendar and a seven-hour school day, but attendance may be cumulated over a school year, including any summer or vacation session. The attendance of students who accumulate less than the number of attendance hours required under this subsection shall be proportionately reduced for funding purposes. The commissioner may:


(1) set maximum funding amounts for an individual course under this section; and


(2) limit funding for the attendance of a student described by Subsection (a)(3) in a course under this section to funding only for the attendance necessary for the student to earn class credit that, as a result of attendance requirements under Section 25.092, the student would not otherwise be able to receive without retaking the class.


(d-1) In calculating average daily attendance for students served under this section, the commissioner shall ensure that funding for attendance in a course in a program under this section is based on the same instructional hour requirements of the regular program rather than a full-time equivalent student basis that requires six hours of student contact time to qualify for a full day of attendance.


(e) A student described by Subsection (a)(3) may enroll in a course in a program under this section offered during the school year or during the period in which school is recessed for the summer to enable the student to earn class credit that, as a result of attendance requirements under Section 25.092, the student would not otherwise be able to receive without retaking the class.


Added by Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 5.03, eff. May 31, 2006.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 364 (H.B. 1297), Sec. 1, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 18, eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 791 (H.B. 2660), Sec. 1, eff. June 17, 2015.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 3, eff. June 15, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1094 (H.B. 3706), Sec. 2, eff. June 15, 2017.


Sec. 29.083. STUDENT RETENTION INFORMATION. The agency shall collect data from school districts through the Public Education Information Management System (PEIMS) relating to grade level retention of students.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.084. TUTORIAL SERVICES. (a) Each school district may provide tutorial services at the district's schools.


(b) A district that provides tutorial services shall require a student whose grade in a subject for a grade reporting period is lower than the equivalent of 70 on a scale of 100 to attend tutorials.


(c) A district may provide transportation for a student who is required to attend tutorial services and who is eligible for regular transportation services.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.085. LIFE SKILLS PROGRAM FOR STUDENT PARENTS. (a) A school district may provide an integrated program of educational and support services for students who are pregnant or who are parents.


(b) The program shall include:


(1) individual counseling, peer counseling, and self-help programs;


(2) career counseling and job readiness training;


(3) day care for the students' children on the campus or at a day-care facility in close proximity to the campus;


(4) transportation for children of students to and from the campus or day-care facility;


(5) transportation for students, as appropriate, to and from the campus or day-care facility;


(6) instruction related to knowledge and skills in child development, parenting, and home and family living; and


(7) assistance to students in the program in obtaining available services from government agencies or community service organizations, including prenatal and postnatal health and nutrition programs.


(c) The district shall solicit recommendations for obtaining community support for the students and their children from organizations for parents of students in the district and from other community organizations.


(d) School districts may operate shared services arrangement programs under this section.


(e) From funds appropriated for the purpose, the commissioner shall distribute funds for programs under this section. In distributing those funds, the commissioner shall give preference to school districts that received funds for a program under this section for the preceding school year and then to the districts that have the highest concentration of students who are pregnant or who are parents. To receive funds for a program under this section, a school district must apply to the commissioner. A program established under this section is required only in school districts in which the program is financed by funds distributed under this subsection and any other funds available for the program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 19, eff. September 1, 2009.


Sec. 29.086. BASIC SKILLS PROGRAMS FOR HIGH SCHOOL STUDENTS. (a) A school district may apply to the commissioner for funding of special programs for students in grade nine who are at risk of not earning sufficient credit or who have not earned sufficient credit to advance to grade 10 and who fail to meet minimum skills levels established by the commissioner. A school district may, with the consent of a student's parent or guardian, assign a student to a program under this section. A program under this section may not exceed 210 instructional days.


(b) A program under this section must emphasize basic skills in areas of the required curriculum under Section 28.002 and must offer students the opportunity to increase credits required for high school graduation under state or school district policy. A program under this section may be provided by a school district or an entity contracting with a school district to provide the program.


(c) The commissioner shall award funds to districts in accordance with a competitive grant process developed by the commissioner. A grant may be made to a consortium of school districts. The criteria by which the commissioner awards a grant must include the quality of the proposed program and the school district's demonstrated need for the program. An approved program must include criteria that permit measurement of student progress, and the district shall:


(1) annually evaluate the progress of students in the program; and


(2) submit the results of the evaluation to the commissioner at the end of the school year.


(d) The commissioner shall establish minimum levels of student enrollment and standards of student progress required for continued funding of a program under this section. The commissioner may eliminate funding for a program in a subsequent school year if the program fails to achieve sufficient levels of student progress.


(e) The amount of a grant under this section must take into account funds distributed to the school district under Chapter 48.


(f) The commissioner may adopt rules for the administration of programs under this section.


Added by Acts 1999, 76th Leg., ch. 396, Sec. 2.02, eff. Sept. 1, 1999.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.031, eff. September 1, 2019.


Sec. 29.087. HIGH SCHOOL EQUIVALENCY PROGRAMS. (a) The agency shall develop a process by which a school district or open-enrollment charter school may apply to the commissioner for authority to operate a program to prepare eligible students to take a high school equivalency examination.


(b) Any school district or open-enrollment charter school may apply for authorization to operate a program under this section. As part of the application process, the commissioner shall require a district or school to provide information regarding the operation of any similar program during the preceding five years.


(b-1) A school district or open-enrollment charter school authorized by the commissioner on or before August 31, 2003, to operate a program under this section may continue to operate that program in accordance with this section.


(c) A school district or open-enrollment charter school may not increase enrollment of students in a program authorized by this section by more than five percent of the number of students enrolled in the similar program operated by the district or school during the 2000-2001 school year.


(d) A student is eligible to participate in a program authorized by this section if:


(1) the student has been ordered by a court under Section 65.103, Family Code, or by the Texas Juvenile Justice Department to:


(A) participate in a preparatory class for the high school equivalency examination; or


(B) take the high school equivalency examination administered under Section 7.111; or


(2) the following conditions are satisfied:


(A) the student is at least 16 years of age at the beginning of the school year or semester;


(B) the student is a student at risk of dropping out of school, as defined by Section 29.081;


(C) the student and the student's parent or guardian agree in writing to the student's participation;


(D) at least two school years have elapsed since the student first enrolled in ninth grade and the student has accumulated less than one third of the credits required to graduate under the minimum graduation requirements of the district or school; and


(E) any other conditions specified by the commissioner.


(e) A school district or open-enrollment charter school shall inform each student who has completed a program authorized by this section of the time and place at which the student may take the high school equivalency examination. Notwithstanding any provision of this section, a student may not take the high school equivalency examination except as authorized by Section 7.111.


(f) A student participating in a program authorized by this section, other than a student ordered to participate under Subsection (d)(1), must have taken the appropriate end-of-course assessment instruments specified by Section 39.023(c) before entering the program and must take each appropriate end-of-course assessment instrument administered during the period in which the student is enrolled in the program. Except for a student ordered to participate under Subsection (d)(1), a student participating in the program may not take the high school equivalency examination unless the student has taken the assessment instruments required by this subsection.


(g) A student enrolled in a program authorized by this section may not participate in a competition or other activity sanctioned or conducted by the University Interscholastic League.


(h) A student who has received a high school equivalency certificate is entitled to enroll in a public school as authorized by Section 25.001 and is entitled to the benefits of the Foundation School Program under Section 48.003 in the same manner as any other student who has not received a high school diploma.


(i) The agency shall request permission from the General Educational Development Testing Service to administer the service's high school equivalency examination to students enrolled in high school who participate in a program authorized by this section. From funds appropriated to the agency that may be used for the purpose, the agency may pay a fee imposed by the service for granting permission to the agency necessary to allow operation of programs authorized by this section.


(j) For purposes of funding under Chapters 46, 48, and 49, a student attending a program authorized by this section may be counted in attendance only for the actual number of hours each school day the student attends the program, in accordance with Section 25.081.


(k) The board of trustees of a school district or the governing board of an open-enrollment charter school shall:


(1) hold a public hearing concerning the proposed application of the district or school before applying to operate a program authorized by this section; and


(2) subsequently hold a public hearing annually to review the performance of the program.


(l) The commissioner may revoke a school district's or open-enrollment charter school's authorization under this section after consideration of relevant factors, including performance of students participating in the district's or school's program on assessment instruments required under Chapter 39, the percentage of students participating in the district's or school's program who complete the program and perform successfully on the high school equivalency examination, and other criteria adopted by the commissioner. A decision by the commissioner under this subsection is final and may not be appealed.


(m) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1083, Sec. 25(9), eff. June 17, 2011.


(n) The commissioner may adopt rules to implement this section.


(o) Repealed by Acts 2003, 78th Leg., ch. 373, Sec. 2, eff. June 18, 2003.


Added by Acts 2001, 77th Leg., ch. 1514, Sec. 7, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 283, Sec. 41, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 373, Sec. 1, 2, eff. June 18, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1312 (S.B. 1031), Sec. 5, eff. September 1, 2007.


Acts 2011, 82nd Leg., R.S., Ch. 1083 (S.B. 1179), Sec. 25(9), eff. June 17, 2011.


Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 23, eff. September 1, 2015.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 15, eff. September 1, 2015.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 4, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.032, eff. September 1, 2019.


Sec. 29.088. AFTER-SCHOOL AND SUMMER INTENSIVE MATHEMATICS INSTRUCTION PROGRAMS. (a) A school district may provide an intensive after-school program or an intensive program during the period that school is recessed for the summer to provide mathematics instruction to:


(1) students who are not performing at grade level in mathematics to assist those students in performing at grade level;


(2) students who are not performing successfully in a mathematics course to assist those students in successfully completing the course; or


(3) students other than those described by Subdivision (1) or (2), as determined by the district.


(b) Before providing a program under this section, the board of trustees of a school district must adopt a policy for:


(1) determining student eligibility for participating in the program that:


(A) prescribes the grade level or course a student must be enrolled in to be eligible; and


(B) provides for considering teacher recommendations in determining eligibility;


(2) ensuring that parents of or persons standing in parental relation to eligible students are provided notice of the program;


(3) ensuring that eligible students are encouraged to attend the program;


(4) ensuring that the program is offered at one or more locations in the district that are easily accessible to eligible students; and


(5) measuring student progress on completion of the program.


(c) The commissioner by rule shall:


(1) prescribe a procedure that a school district must follow to apply for and receive funding for a program under this section;


(2) adopt guidelines for determining which districts receive funding if there is not sufficient funding for each district that applies;


(3) require each district providing a program to report student performance results to the commissioner within the period and in the manner prescribed by the rule; and


(4) based on district reports under Subdivision (3) and any required analysis and verification of those reports, disseminate to each district in this state information concerning instructional methods that have proved successful in improving student performance in mathematics.


(d) A program provided under this section shall be paid for with funds appropriated for that purpose.


Added by Acts 2001, 77th Leg., ch. 834, Sec. 8, eff. Sept. 1, 2001. Renumbered from Education Code Sec. 29.087 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(15), eff. Sept. 1, 2003.


Sec. 29.089. MENTORING SERVICES PROGRAM. (a) Each school district may provide a mentoring services program to students at risk of dropping out of school, as defined by Section 29.081.


(b) The commissioner, in consultation with the governor, lieutenant governor, and speaker of the house of representatives, by rule shall determine accountability standards under this section for a school district providing a mentoring services program using funds allocated under Section 48.104.


(c) The board of trustees of the district shall obtain the consent of a student's parent or guardian before allowing the student to participate in the program.


(d) The board of trustees of the district may arrange for any public or nonprofit community-based organization to come to the district's schools and implement the program.


Added by Acts 2003, 78th Leg., ch. 783, Sec. 1, eff. Sept. 1, 2003.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.033, eff. September 1, 2019.


Sec. 29.090. AFTER-SCHOOL AND SUMMER INTENSIVE SCIENCE INSTRUCTION PROGRAMS. (a) A school district may provide an intensive after-school program or an intensive program during the period that school is recessed for the summer to provide science instruction to:


(1) students who are not performing at grade level in science to assist those students in performing at grade level;


(2) students who are not performing successfully in a science course to assist those students in successfully completing the course; or


(3) students other than those described by Subdivision (1) or (2), as determined by the district.


(b) Before providing a program under this section, the board of trustees of a school district must adopt a policy for:


(1) determining student eligibility for participating in the program that:


(A) prescribes the grade level or course a student must be enrolled in to be eligible; and


(B) provides for considering teacher recommendations in determining eligibility;


(2) ensuring that parents of or persons standing in parental relation to eligible students are provided notice of the program;


(3) ensuring that eligible students are encouraged to attend the program;


(4) ensuring that the program is offered at one or more locations in the district that are easily accessible to eligible students; and


(5) measuring student progress on completion of the program.


(c) The commissioner by rule shall:


(1) prescribe a procedure that a school district must follow to apply for and receive funding for a program under this section;


(2) adopt guidelines for determining which districts receive funding if there is not sufficient funding for each district that applies;


(3) require each district providing a program to report student performance results to the commissioner within the period and in the manner prescribed by the rule; and


(4) based on district reports under Subdivision (3) and any required analysis and verification of those reports, disseminate to each district in this state information concerning instructional methods that have proved successful in improving student performance in science.


(d) A program provided under this section shall be paid for with funds appropriated for that purpose.


Added by Acts 2003, 78th Leg., ch. 430, Sec. 4, eff. Sept. 1, 2003.


Renumbered from Education Code, Section 29.089 by Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 23.001(14-a), eff. September 1, 2005.


Sec. 29.091. GRANT PROGRAM FOR DISTRICTS THAT HAVE HIGH ENROLLMENT OF EDUCATIONALLY DISADVANTAGED STUDENTS AND THAT PROVIDE SUMMER INSTRUCTION. (a) In this section:


(1) "New teacher" means a teacher who:


(A) will be teaching for the first time during the next school year; or


(B) first began teaching:


(i) during the preceding two years; or


(ii) in the school district in which the teacher is currently employed during the preceding year.


(2) "Program" means the grant program for school districts to provide summer instruction primarily for students who are educationally disadvantaged, as established under this section.


(b) The commissioner shall establish and administer a competitive program to provide grants to not more than 10 school districts to use in providing instructional programs to students in prekindergarten through eighth grade during the period in which school is recessed for the summer. The program shall be designed to:


(1) encourage participation in the program by a district's most educationally disadvantaged students;


(2) close the academic achievement gap between students who are educationally disadvantaged and students who are not educationally disadvantaged;


(3) ensure that during the period in which school is recessed for the summer, students participating in the program retain knowledge and skills learned during the school year and continue learning;


(4) provide apprenticeship, mentorship, and other professional development opportunities for new teachers and student teachers; and


(5) add to the compensation of a district's highest performing teachers by providing those teachers with summer employment teaching students, new teachers, and student teachers.


(c) To be eligible to participate in the program, a school district must:


(1) have an enrollment of students who are educationally disadvantaged that is greater than 50 percent of total district enrollment;


(2) apply to the commissioner in the manner and within the time prescribed by commissioner rule; and


(3) provide as part of the application materials a plan that is designed to achieve the purposes described by Subsections (b)(1) through (5).


(d) In selecting from among eligible school districts to participate in the program, the commissioner shall select those districts that provide plans under Subsection (c)(3) that are the most innovative and represent a variety of approaches so that the effectiveness of various plans can be compared and evaluated.


(e) A grant awarded under this section may be funded only with money appropriated for the program and any gifts, grants, or donations made to the agency that may be used for and that the commissioner applies to funding the program. The commissioner, in accordance with commissioner rule and based on the amount available for the program, shall determine the amount of each grant awarded under this section. A school district awarded a grant under this section may use the grant only for implementing and administering a plan as described by Subsection (c)(3), including providing compensation to teachers in accordance with Subsection (b)(5) and commissioner rule.


(f) Each school district participating in the program shall, in the manner and within the time prescribed by commissioner rule, provide to the agency an annual written report that includes:


(1) a detailed description of the district's plan, as implemented;


(2) the number and grade levels of participating students;


(3) demographic information for participating students, including the percentage of students of each applicable race and ethnicity, the percentage of educationally disadvantaged students, the percentage of students of limited English proficiency as defined by Section 29.052, the percentage of students enrolled in a school district special education program under Subchapter A, and the percentage of students enrolled in a district bilingual education program under Subchapter B;


(4) school attendance rates for participating students, before, during, and after program participation, as applicable;


(5) specific information that demonstrates whether the purposes described by Subsections (b)(2) and (3) have been achieved, including the results of assessment instruments administered under Section 39.023 for participating students, before, during, and after program participation, as applicable;


(6) aggregate results of assessment instruments administered under Section 39.023 for students of participating classroom teachers, new teachers, and student teachers, before, during, and after program participation by the students, as applicable;


(7) information regarding the manner in which teachers are selected for participation in the program and the manner in which teachers are compensated for their participation;


(8) statistical information for participating classroom teachers, new teachers, and student teachers, including the number of years employed in the teaching profession, the number of years teaching in the district in which the program is provided, the category and class of educator certification held, the highest level of academic degree earned, race, ethnicity, and gender;


(9) information regarding whether:


(A) the program is provided on a full-day or half-day basis;


(B) the program is voluntary or mandatory for educationally disadvantaged students;


(C) the district has partnered with an outside provider to provide any supplemental service;


(D) the district provides transportation to participating students; and


(E) the district offers the program to students who are not educationally disadvantaged and, if so, under what circumstances;


(10) information on retention in the teaching profession of the participating teachers, including new teachers and student teachers; and


(11) any other information required by commissioner rule.


(g) The agency shall contract with an experienced and recognized third-party program evaluator to determine and prepare a report regarding the effectiveness of the program. The evaluator's report must include the evaluator's best effort to project the cost and academic effects of implementing the best practices of the program in school districts throughout this state and must describe the effectiveness of the program in:


(1) improving academic performance among participating students;


(2) improving the professional development and performance of new teachers; and


(3) rewarding and retaining the highest performing teachers.


(h) Not later than November 1 of each even-numbered year, the agency shall submit to each member of the legislature a report specifically describing the results of the program. The report may be in the form of a summary of the information required under Subsections (f) and (g).


(i) The commissioner shall adopt rules as necessary to administer this section.


Added by Acts 2013, 83rd Leg., R.S., Ch. 1263 (H.B. 742), Sec. 1, eff. September 1, 2013.


Sec. 29.094. INTENSIVE READING OR LANGUAGE INTERVENTION PILOT PROGRAM. (a) In this section, "pilot program" means the intensive reading or language intervention pilot program.


(b) The commissioner by rule shall establish a pilot program in which a participating campus provides intensive reading or language intervention to participating students.


(c) A campus may apply to the commissioner to participate in the pilot program. The commissioner may select for participation in the pilot program only campuses that have failed to improve student performance in reading according to standards established by the commissioner. The standards established by the commissioner for purposes of this subsection must be based on reading performance standards considered for student promotion under Section 28.021.


(d) The commissioner shall adopt minimum criteria that a program must meet to be selected by a participating campus for use in providing intensive reading or language intervention. The criteria must include neuroscience-based, scientifically validated methods, scientifically based reading interventions, or instructional tools that have been proven to accelerate language acquisition and reading proficiency for struggling readers. A participating campus shall submit a summary of the campus's proposed intensive intervention program to the commissioner for approval. The commissioner may approve only a program that follows the minimum criteria adopted under this subsection.


(e) The principal of a participating campus, in consultation with classroom teachers at the campus, shall select students to participate in the pilot program based on assessment data. Benchmark measures shall be administered at the beginning and end of the program.


(f) Not later than December 31, 2008, any vendor of an intensive intervention program approved under Subsection (d), in consultation with the agency and each school district with which the vendor contracts under this section, shall provide the legislature with a report describing student progress under the assessments administered to participating students under Subsection (e).


(g) Notwithstanding any other law, the commissioner shall provide funding for the pilot program using not more than $6 million of funding appropriated for purposes of Section 28.0211.


(h) The commissioner shall adopt rules necessary to implement this section.


(i) The commissioner shall make the pilot program available to participating campuses during the 2007-2008 and 2008-2009 school years.


Added by Acts 2005, 79th Leg., Ch. 1165 (H.B. 3468), Sec. 1, eff. September 1, 2005.


Reenacted and amended by Acts 2007, 80th Leg., R.S., Ch. 1015 (H.B. 1270), Sec. 1, eff. June 15, 2007.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 34, eff. June 19, 2009.


Sec. 29.095. GRANTS FOR STUDENT CLUBS. (a) In this section:


(1) Repealed by Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 4.01(4), eff. June 4, 2019.


(2) "Student at risk of dropping out of school" has the meaning assigned by Section 29.081(d).


(b) The commissioner shall administer a pilot program to provide grants to school districts to fund student club activities for students at risk of dropping out of school. From funds appropriated for purposes of this subchapter, the commissioner shall spend an amount not to exceed $4 million in any state fiscal biennium on the program.


(c) The commissioner may award a grant in an amount not to exceed $5,000 in a school year to a school district on behalf of a student club at a district high school campus that is eligible under the criteria established under Section 39.408. To be eligible for a grant, the student club and the club's sponsor must be sanctioned by the campus and district. A grant awarded under this program must be matched by other federal, state, or local funds, including donations, in an amount equal to the amount of the grant. A district shall seek donations or sponsorships from local businesses or community organizations to raise the matching funds. The commissioner may award a grant on behalf of more than one student club at a campus in the same school year.


(d) The commissioner shall establish application criteria for receipt of a grant under this section. The criteria must require confirmation that the appropriate campus-level planning and decision-making committee established under Subchapter F, Chapter 11, and the school district board of trustees have approved a plan that includes:


(1) a description of the student club;


(2) a statement of the student club's goals, intent, and activities;


(3) a statement of the source of funds to be used to match the grant;


(4) a budget for the student club; and


(5) a statement showing that the student club's finances are sustainable.


(e) The commissioner shall establish the minimum requirements for a local grant agreement, including requiring:


(1) the agreement to be signed by the sponsor of a student club receiving a grant and another authorized school district officer; and


(2) the district and the student club to participate in an evaluation of the club's program and the program's effect on student achievement and dropout rates.


(f) A student club may use funds awarded under this section to support academic or co-curricular club activities, other than athletics, in which at least 50 percent of the participating students have been identified as students at risk of dropping out of school. A student club may use funds for materials, sponsor stipends, and other needs that directly support the club's activities. A student club must use the entire amount of the grant to directly fund the club's activities described in the plan approved as provided by Subsection (d). A student club may not use more than 50 percent of a grant to pay sponsor stipends.


(g) The school district board of trustees shall ensure that funds awarded under this section are expended in compliance with Subsection (f). At the end of the school year, a student club that receives a grant must submit a report to the board of trustees summarizing the club's activities and the extent to which the club met the club's goals and achieved the club's intent. The decision of the board of trustees under this subsection relating to compliance with Subsection (f) is final and may not be appealed.


Added by Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 11, eff. June 15, 2007.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 35, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 36, eff. June 19, 2009.


Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 1.03, eff. June 4, 2019.


Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 4.01(a)(4), eff. June 4, 2019.


Sec. 29.096. COLLABORATIVE DROPOUT REDUCTION PILOT PROGRAM. (a) Repealed by Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 4.01(a)(4), eff. June 4, 2019.


(b) Using funds appropriated for that purpose in an amount not to exceed $4 million each year, the commissioner shall establish a pilot program under which a school district or open-enrollment charter school may receive a grant to implement a local collaborative dropout reduction program.


(c) A school district or open-enrollment charter school is eligible to participate and receive a grant under this section under the eligibility criteria established under Section 39.408.


(d) The commissioner shall establish application criteria for receiving a grant under this section. The criteria must require a school district or open-enrollment charter school that applies for a grant to collaborate with local businesses, other local governments or law enforcement agencies, nonprofit organizations, faith-based organizations, and institutions of higher education to deliver proven, research-based intervention services. The goal of the program is to coordinate services and programs among local entities to:


(1) comprehensively reduce the number of students who drop out of school in that community; and


(2) increase the job skills, employment opportunities, and continuing education opportunities of students who might otherwise have dropped out of school.


(e) The commissioner shall establish minimum standards for a local collaborative agreement, including a requirement that the agreement must be signed by an authorized school district or open-enrollment charter school officer and an authorized representative of each of the other participating entities that is a partner in the collaboration. The program must:


(1) limit participation in the program to students authorized to participate by a parent or other person standing in parental relationship;


(2) have as a primary goal graduation from high school;


(3) provide for local businesses or other employers to offer paid employment or internship opportunities and advanced career and vocational training;


(4) include an outreach component and a lead educational staff member to identify and involve eligible students and public and private entities in participating in the program;


(5) serve a population of students of which at least 50 percent are identified as students at risk of dropping out of school, as described by Section 29.081(d);


(6) allocate not more than 15 percent of grant funds and matching funds, as determined by the commissioner, to administrative expenses; and


(7) include matching funds from any of the participating entities.


(f) A local collaborative agreement under this section may:


(1) be coordinated with other services provided to students or their families by public or private entities;


(2) provide for local businesses to support the program, including:


(A) encouraging employees to engage in mentoring students and other school-related volunteer activities; and


(B) using matching funds to provide paid time off for volunteer activities under Paragraph (A) and other activities related to encouraging school involvement of parents of students enrolled in the program;


(3) allow grant funds to reimburse reasonable costs of participating entities;


(4) provide for electronic course delivery by a school district, an open-enrollment charter school, or an institution of higher education; and


(5) be hosted or housed by a chamber of commerce, local workforce agency, local employer, or other public or private participating entity.


(g) The commissioner may approve innovative instructional techniques for courses in the enrichment curriculum leading to high school graduation under a local collaborative dropout reduction program and shall develop accountability measures appropriate to those programs. From funds appropriated, the commissioner may fund electronic courses that are part of a collaborative program and that are otherwise eligible for state funds. Funding for an electronic course may not exceed the total amount of state and local funding for a student to which the school district or open-enrollment charter school would otherwise be entitled.


(h) Nothing in this section authorizes the award of a high school diploma other than in compliance with Section 28.025.


(i) The commissioner shall adopt rules necessary to administer the pilot program under this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 11, eff. June 15, 2007.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 37, eff. June 19, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 21(a), eff. June 10, 2013.


Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 1.04, eff. June 4, 2019.


Acts 2019, 86th Leg., R.S., Ch. 439 (S.B. 1376), Sec. 4.01(a)(4), eff. June 4, 2019.


Sec. 29.099. INTENSIVE MATHEMATICS AND ALGEBRA INTERVENTION PILOT PROGRAM. (a) In this section, "intervention program" means the intensive mathematics and algebra intervention pilot program.


(b) The commissioner by rule shall establish an intervention pilot program in which a participating district will provide:


(1) intensive mathematics intervention for students who are not performing at grade level in mathematics in grades four through seven; and


(2) algebra readiness intervention for students who are not performing at grade level in mathematics in grade eight.


(c) Districts may implement the intensive mathematics and algebra intervention pilot program at a campus whose population of at-risk students exceeds the state average proportion of at-risk students.


(d) A participating campus shall identify a student who does not perform at grade level on an assessment instrument administered under Section 39.023(a)(1), or an equivalent assessment instrument administered under Section 39.023(l), as a student eligible for participation in the intervention program. During a student's placement in the intervention program, a campus shall use progress monitoring assessments to ensure that a student is making appropriate progress in the program.


(e) The commissioner shall adopt a list of mathematics and algebra intervention programs that may be implemented by a school district and funded under this program. Programs placed on the commissioner's list will be reviewed and recommended by a panel of recognized experts in mathematics education.


(f) The commissioner shall adopt minimum criteria that a program must meet to be included on the list adopted by the commissioner. The criteria must:


(1) include comprehensive course plans and teacher guides that are organized around the essential knowledge and skills curriculum for mathematics;


(2) include technology-based supplementary instruction that can diagnose and address areas in which a student is identified to need improvement;


(3) include at least three cumulative days of training, professional development, and mentoring for teachers;


(4) provide students individual access to technology-based supplementary instruction at least 90 minutes each week;


(5) provide teachers daily access to required technology;


(6) demonstrate significant effectiveness in schools serving students identified as being at risk of dropping out of school, as described by Section 29.081(d); and


(7) be selected in consultation with the teachers at the affected campus from the list adopted pursuant to Subsection (e).


(g) The commissioner shall adopt rules necessary to implement this section.


(h) Program Evaluation. The commissioner of education shall contract for the evaluation of the effectiveness of the intervention program established under this section. The commissioner may consider centers for education research to conduct this evaluation. The evaluation shall describe progress under the assessment instruments administered under Section 39.023(a)(1) or equivalent assessment instruments administered under Section 39.023(l) to students participating in the intervention program.


(i) Report to the Legislature. Not later than December 1 of each even-numbered year, the commissioner shall prepare and deliver a report to the legislature that recommends any statutory changes the commissioner considers appropriate to promote improved mathematics and algebra readiness in Texas schools.


Added by Acts 2007, 80th Leg., R.S., Ch. 893 (H.B. 2504), Sec. 1, eff. June 15, 2007.


Renumbered from Education Code, Section 29.095 by Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(5), eff. September 1, 2009.


SUBCHAPTER D. EDUCATIONAL PROGRAMS FOR GIFTED AND TALENTED STUDENTS



Sec. 29.121. DEFINITION. In this subchapter, "gifted and talented student" means a child or youth who performs at or shows the potential for performing at a remarkably high level of accomplishment when compared to others of the same age, experience, or environment and who:


(1) exhibits high performance capability in an intellectual, creative, or artistic area;


(2) possesses an unusual capacity for leadership; or


(3) excels in a specific academic field.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.122. ESTABLISHMENT. (a) Using criteria established by the State Board of Education, each school district shall adopt a process for identifying and serving gifted and talented students in the district and shall establish a program for those students in each grade level. A district may establish a shared services arrangement program with one or more other districts.


(b) Each school district shall adopt a policy regarding the use of funds to support the district's program for gifted and talented students.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.017, eff. June 12, 2019.


Sec. 29.123. STATE PLAN; ASSISTANCE. The State Board of Education shall develop and periodically update a state plan for the education of gifted and talented students to guide school districts in establishing and improving programs for identified students. The regional education service centers may assist districts in implementing the state plan. In addition to obtaining assistance from a regional education service center, a district may obtain other assistance in implementing the plan. The plan shall be used for accountability purposes to measure the performance of districts in providing services to students identified as gifted and talented.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.124. CERTIFICATION AND REPORTING REQUIRED. (a) Each school district shall annually certify to the commissioner that the district has established a program for gifted and talented students as required by this subchapter and that the program is consistent with the state plan developed under Section 29.123.


(b) If the commissioner determines that a school district has failed to comply with Subsection (a) for a school year, the commissioner shall reduce the total amount of funding to which the district is entitled under Chapter 48 for that school year by an amount equal to the basic allotment multiplied by the product of:


(1) 0.12; and


(2) an amount equal to five percent of the students in average daily attendance in the district.


(c) The commissioner may restore to a school district all or part of the funding withheld from the district's entitlement under Subsection (b) if during the school year the district complies with Subsection (a).


(d) At the same time that a school district makes the certification required under Subsection (a), the district shall report to the commissioner regarding the use of funds on the district's program for gifted and talented students as provided by State Board of Education rule.


(e) Nothing in this section may be construed as limiting the number of students that a school district may identify as gifted and talented or serve under the district's program for gifted and talented students.


Added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.018, eff. June 12, 2019.


SUBCHAPTER E. KINDERGARTEN AND PREKINDERGARTEN PROGRAMS



Sec. 29.151. FREE KINDERGARTEN. The board of trustees of each school district shall establish and maintain one or more kindergartens for the training of children residing in the district who are at least five years of age on September 1 of the school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.152. OPERATION OF KINDERGARTENS ON HALF-DAY OR FULL-DAY BASIS. A public school kindergarten may be operated on a half-day or a full-day basis at the option of the board of trustees of the school district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.153. FREE PREKINDERGARTEN FOR CERTAIN CHILDREN. (a) In this section:


(1) "Child" includes a stepchild.


(2) "Parent" includes a stepparent.


(a-1) A district shall offer prekindergarten classes if the district identifies 15 or more children who are eligible under Subsection (b) and are at least four years of age. A school district may offer prekindergarten classes if the district identifies 15 or more eligible children who are at least three years of age. A district may not charge tuition for a prekindergarten class offered under this section.


(b) A child is eligible for enrollment in a prekindergarten class under this section if the child is at least three years of age and:


(1) is unable to speak and comprehend the English language;


(2) is educationally disadvantaged;


(3) is homeless, regardless of the residence of the child, of either parent of the child, or of the child's guardian or other person having lawful control of the child;


(4) is the child of an active duty member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, who is ordered to active duty by proper authority;


(5) is the child of a member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, who was injured or killed while serving on active duty;


(6) is or ever has been in the conservatorship of the Department of Family and Protective Services following an adversary hearing held as provided by Section 262.201, Family Code; or


(7) is the child of a person eligible for the Star of Texas Award as:


(A) a peace officer under Section 3106.002, Government Code;


(B) a firefighter under Section 3106.003, Government Code; or


(C) an emergency medical first responder under Section 3106.004, Government Code.


(c) A prekindergarten class under this section may be operated on a half-day basis for children under four years of age and shall be operated on a full-day basis for children who are at least four years of age. A district is not required to provide transportation for a prekindergarten class, but transportation, if provided, is included for funding purposes as part of the regular transportation system.


(c-1) A prekindergarten class under this section for children who are least four years of age must comply with the program standards required for high quality prekindergarten programs under Subchapter E-1.


(d) Subject to Subsections (d-1) and (d-2), on application of a district, the commissioner shall exempt a district from the application of all or any part of this section, including all or any part of Subchapter E-1 for a prekindergarten class described by Subsection (c-1), if the commissioner determines that:


(1) the district would be required to construct classroom facilities in order to provide prekindergarten classes; or


(2) implementing any part of this section would result in fewer eligible children being enrolled in a prekindergarten class under this section.


(d-1) A district may not receive an exemption under Subsection (d) unless the district has solicited and considered at a public meeting proposals for partnerships with public or private entities regarding prekindergarten classes required under this section. A decision of the board of trustees regarding a partnership described by this subsection is final.


(d-2) An exemption under Subsection (d) may not be granted for a period longer than three school years and may be renewed only once.


(e) Each school district shall develop a system to notify the population in the district with children who are eligible for enrollment in a prekindergarten class under this section of the availability of the class. The system must include public notices issued in English and Spanish.


(f) A child who is eligible for enrollment in a prekindergarten class under Subsection (b)(4) or (5) remains eligible for enrollment if the child's parent leaves the armed forces, or is no longer on active duty, after the child begins a prekindergarten class.


Text of subsection as added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.019



(g) Before a school district or open-enrollment charter school may construct, repurpose, or lease a classroom facility, or issue bonds for the construction or repurposing of a classroom facility, to provide the prekindergarten classes required under this section, the district or school must solicit and consider proposals for partnerships to provide those classes with community-based child-care providers who:


(1) are a Texas Rising Star Program provider with a three-star certification or higher;


(2) are nationally accredited;


(3) are a Head Start program provider;


(4) are a Texas School Ready! participant; or


(5) meet the requirements under Section 29.1532.


Text of subsection as added by Acts 2019, 86th Leg., R.S., Ch. 443 (S.B. 1679), Sec. 1



(g) A child who is eligible for enrollment in a prekindergarten class under Subsection (b) at the age of three and enrolls in a prekindergarten class at the age of three remains eligible for enrollment in a prekindergarten class for the following school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 4.01, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 596, Sec. 1, eff. June 11, 2001.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 6.01, eff. May 31, 2006.


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 4, eff. June 15, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 1(a), eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 975 (H.B. 3643), Sec. 1, eff. June 19, 2009.


Acts 2017, 85th Leg., R.S., Ch. 1141 (H.B. 357), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 443 (S.B. 1679), Sec. 1, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.07, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.019, eff. June 12, 2019.


Sec. 29.1531. TUITION-SUPPORTED AND DISTRICT-FINANCED PREKINDERGARTEN. (a) A school district may offer on a tuition basis or use district funds to provide:


(1) an additional half-day of prekindergarten classes to children who are eligible for classes under Section 29.153 and are under four years of age; and


(2) half-day and full-day prekindergarten classes to children not eligible for classes under Section 29.153.


(b) A district that offers a prekindergarten program on a tuition basis:


(1) may not adopt a tuition rate for the program that is higher than necessary to cover the added costs of providing the program, including any costs associated with collecting, reporting, and analyzing data under Section 29.1532(c); and


(2) must submit the proposed tuition rate to the commissioner for approval.


Added by Acts 2001, 77th Leg., ch. 596, Sec. 1, eff. June 11, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.020, eff. June 12, 2019.


Sec. 29.1532. PREKINDERGARTEN PROGRAM REQUIREMENTS. (a) A school district's prekindergarten program shall be designed to develop skills necessary for success in the regular public school curriculum, including language, mathematics, and social skills.


(b) If a school district contracts with a private entity for the operation of the district's prekindergarten program, the program must at a minimum comply with the applicable child-care licensing standards adopted by the Department of Protective and Regulatory Services under Section 42.042, Human Resources Code.


(c) A school district that offers prekindergarten classes shall include the following information in the district's Public Education Information Management System (PEIMS) report:


(1) demographic information, as determined by the commissioner, on students enrolled in district and campus prekindergarten classes, including the number of students who are eligible for classes under Section 29.153;


(2) the numbers of half-day and full-day prekindergarten classes offered by the district and campus;


(3) the number of half-day prekindergarten classes for which the district has received an exemption from full-day operation under Section 29.153(d);


(4) the sources of funding for the prekindergarten classes;


(5) the class size and ratio of instructional staff to students for each prekindergarten program class offered by the district and campus;


(6) if the district elects to administer an assessment instrument under Section 29.169 to students enrolled in district and campus prekindergarten program classes, a description and the results of each type of assessment instrument; and


(7) curricula used in the district's prekindergarten program classes.


(d) Information required under this section to be included in a school district's Public Education Information Management System (PEIMS) report may not be used for purposes of determining a district's accreditation or a campus or district performance rating under Subchapter C, Chapter 39.


Added by Acts 2001, 77th Leg., ch. 596, Sec. 1, eff. June 11, 2001.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 4, eff. May 28, 2015.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.021, eff. June 12, 2019.


Sec. 29.1533. ESTABLISHMENT OF NEW PREKINDERGARTEN PROGRAM. Before establishing a new prekindergarten program, a school district shall consider the possibility of sharing use of an existing Head Start or other child-care program site as a prekindergarten site.


Added by Acts 2003, 78th Leg., ch. 790, Sec. 1, eff. Sept. 1, 2003.


Sec. 29.1534. NOTIFICATION OF PREKINDERGARTEN PROGRAMS. (a) In this section, "prekindergarten program" includes prekindergarten programs provided by a private entity through a partnership with the school district.


(b) The agency shall develop joint strategies with other state agencies regarding methods to increase community awareness of prekindergarten programs through programs that provide information relating to public assistance programs.


(c) The agency may develop outreach materials for use by school districts to increase community awareness of prekindergarten programs.


(d) Expired.


(e) The agency shall provide information to school districts regarding effective methods to communicate to the parent of an eligible child the availability of prekindergarten programs, including information regarding prekindergarten programs through public, private, and nonprofit institutions that provide assistance and support to families with children eligible for prekindergarten programs.


Added by Acts 2009, 81st Leg., R.S., Ch. 592 (H.B. 136), Sec. 1, eff. September 1, 2009.


Sec. 29.154. EVALUATION OF PREKINDERGARTEN PROGRAMS. The commissioner of education, in consultation with the commissioner of human services, shall monitor and evaluate prekindergarten programs as to their developmental appropriateness. The commissioners shall also evaluate the potential for coordination on a statewide basis of prekindergarten programs with government-funded early childhood care and education programs such as child care administered under Chapter 44, Human Resources Code, and federal Head Start programs. That evaluation shall use recommendations contained in the report to the 71st Legislature required by Chapter 717, Acts of the 70th Legislature, Regular Session, 1987. For the purpose of providing cost-effective care for children during the full workday with developmentally appropriate curriculum, the commissioners shall investigate the use of existing child-care program sites as prekindergarten sites. Following the evaluation required by this section, the commissioners, in cooperation with school districts and other program administrators, shall integrate programs, staff, and program sites for prekindergarten, child-care, and federal Head Start programs to the greatest extent possible.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.1543. EARLY EDUCATION REPORTS. The agency shall produce and make available to the public on the agency's Internet website annual district and campus-level reports containing information from the previous school year on early education in school districts and open-enrollment charter schools. A report under this section must contain:


(1) the information required by Section 29.1532(c) to be reported through the Public Education Information Management System (PEIMS);


(2) a description of the diagnostic reading instruments administered in accordance with Section 28.006(c) or (c-2);


(3) the number of students who were administered a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2);


(4) the number of students whose scores from a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2) indicate reading proficiency;


(5) the number of kindergarten students who were enrolled in a prekindergarten program in the previous school year in the same district or school as the district or school in which the student attends kindergarten;


(6) the number and percentage of students who perform satisfactorily on the third grade reading or mathematics assessment instrument administered under Section 39.023, disaggregated by whether the student was eligible for free prekindergarten under Section 29.153;


(7) the number of students described by Subdivision (6) who attended kindergarten in the district, disaggregated by:


(A) whether the student met the kindergarten readiness standard on the reading instrument adopted under Section 28.006;


(B) whether the student attended prekindergarten in the district; and


(C) the type of prekindergarten the student attended, if applicable; and


(8) the information described by Subdivisions (6) and (7) disaggregated by whether the student is educationally disadvantaged.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 5, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.022, eff. June 12, 2019.


Sec. 29.1544. REPORTING OF CERTAIN INFORMATION REGARDING PREKINDERGARTEN PROGRAMS; AGENCY REPORT. (a) The agency by rule shall require each school district that offers a prekindergarten program under Section 29.153 and each private entity that provides a prekindergarten program under contract with a school district to report the following information in the form and manner prescribed by the agency for each prekindergarten class offered by the district or private entity:


(1) the number of students in each prekindergarten class;


(2) the number of certified teachers in each prekindergarten class;


(3) the number of teacher's aides in each prekindergarten class;


(4) whether each prekindergarten class is full-day or half-day; and


(5) if the district offers half-day classes, whether the district offers two half-day classes per day.


(b) From the information submitted under Subsection (a), the agency shall determine the total number of teachers and teacher's aides in prekindergarten classes in this state.


(c) From the information submitted under Subsection (a) and for purposes of calculating the student/teacher ratio for each prekindergarten class offered by a school district or private entity that provides a prekindergarten program under contract with a school district, the agency shall count each teacher or teacher's aide:


(1) once for a full-day class; and


(2) twice for a half-day class if the district offers two half-day classes per day.


(d) Not later than August 1 of each year, the agency shall prepare and submit a report to the legislature based on the information collected under Subsection (a).


Added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.023, eff. June 12, 2019.


Sec. 29.155. KINDERGARTEN AND PREKINDERGARTEN GRANTS. (a) From amounts appropriated for the purposes of this section, the commissioner may make grants to school districts and open-enrollment charter schools to implement or expand kindergarten and prekindergarten programs by:


(1) operating an existing half-day kindergarten or prekindergarten program on a full-day basis; or


(2) implementing a prekindergarten program at a campus that does not have a prekindergarten program.


(b) A school district or open-enrollment charter school may use funds received under this section to employ teachers and other personnel for a kindergarten or prekindergarten program and acquire curriculum materials or equipment, including computers, for use in kindergarten and prekindergarten programs.


(c) To be eligible for a grant under this section, a school district or open-enrollment charter school must apply to the commissioner in the manner and within the time prescribed by the commissioner.


(d) In awarding grants under this section, the commissioner shall give priority to districts and open-enrollment charter schools in which the level of performance of students on the assessment instruments administered under Section 39.023 to students in grade three is substantially below the average level of performance on those assessment instruments for all school districts in the state.


(e) The commissioner may adopt rules to administer this section.


(f) Notwithstanding Section 7.056(e)(3)(I), the commissioner may waive a requirement prescribed by this subchapter to the extent necessary to implement a grant awarded under this section or Section 29.156.


(g) From amounts appropriated for the purposes of this subsection, the commissioner may also provide for:


(1) coordinating early childhood care and education programs;


(2) developing and disseminating for programs described by Subdivision (1) prekindergarten instructional materials and school-readiness information for parents; and


(3) developing standards for model early childhood care and education coordination.


(h) The model program standards developed under Subsection (g) must focus on pre-literacy skills, including language acquisition, vocabulary development, and phonological awareness.


(i) In carrying out the purposes of Subsection (g), a school district or open-enrollment charter school may use funds granted to the district or school under this subsection in contracting with another entity, including a private entity.


(j) If a school district or open-enrollment charter school returns to the commissioner funds granted under this section, the commissioner may grant those funds to another entity, including a private entity, for the purposes of Subsection (g).


Added by Acts 1999, 76th Leg., ch. 396, Sec. 2.01, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 790, Sec. 2, eff. Sept. 1, 2003.


Sec. 29.156. GRANTS FOR EDUCATIONAL COMPONENT OF HEAD START. (a) From funds appropriated for the purpose, the commissioner shall make grants for use in providing an educational component to federal Head Start programs or similar government-funded early childhood care and education programs.


(b) The commissioner shall adopt rules for implementation of this section, including rules prescribing eligibility criteria for receipt of a grant and for expenditure of grant funds.


Added by Acts 1999, 76th Leg., ch. 396, Sec. 2.01, eff. Sept. 1, 1999.


Sec. 29.1561. ADMINISTRATION OF EARLY CHILDHOOD CARE AND EDUCATION PROGRAMS. (a) The commissioner may waive a law or rule relating to early childhood care and education programs:


(1) to the extent that the law or rule is more restrictive than required by federal law; or


(2) to the extent necessary to comply with federal law.


(b) Notwithstanding any restriction imposed by this title, the commissioner may administer grants for early childhood care and education programs under Section 29.155 or 29.156, including Head Start and Early Head Start programs, in a manner that provides the greatest flexibility allowed under federal law.


(c) The commissioner by rule may establish a program to provide incentives to providers of early childhood care and education programs that, to the greatest extent practicable, provide coordinated services authorized under Section 29.158(c).


Added by Acts 2003, 78th Leg., ch. 790, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 275 (S.B. 23), Sec. 1, eff. September 1, 2005.


Sec. 29.157. READY TO READ GRANTS. (a) From funds appropriated for the purpose, the commissioner shall make grants as provided by this section in support of pre-reading instruction.


(b) The commissioner shall establish a competitive grant program for distribution of at least 95 percent of the available appropriated funds. Grants shall be used to provide scientific, research-based pre-reading instruction for the purpose of directly improving pre-reading skills and for identifying cost-effective models for pre-reading intervention. The commissioner shall distribute the grants in amounts not less than $50,000 or more than $150,000 to eligible applicants to be used for:


(1) professional staff development in pre-reading instruction;


(2) pre-reading curriculum and materials;


(3) pre-reading skills assessment materials; and


(4) employment of pre-reading instructors.


(c) A public school operating a prekindergarten program, or an eligible entity as defined by Section 12.101(a) that provides a preschool instruction program and that meets qualifications prescribed by the commissioner, is eligible to apply for a grant if at least 75 percent of the children enrolled in the program are low-income students, as determined by rule of the commissioner.


(d) As a condition to receiving a grant, an applicant must commit public or private funds matching the grant in a percentage set by the commissioner. The commissioner shall determine the required percentage of matching funds based on the demonstrated economic capacity of the community served by the program to raise funds for the purpose of matching the grant, as determined by the commissioner. Matching funds must equal at least 30 percent, but not more than 75 percent, of the amount of the grant.


(e) The commissioner shall develop and implement performance measures for evaluating the effectiveness of grants under this section. Those measures must correlate to other reading diagnostic assessments used in public schools in kindergarten through the second grade.


(f) The commissioner may adopt rules as necessary for the administration of this section.


Added by Acts 1999, 76th Leg., ch. 402, Sec. 1, eff. Sept. 1, 1999. Renumbered from Sec. 29.155 by Acts 2001, 77th Leg., ch. 1420, Sec. 21.001(17), eff. Sept. 1, 2001.


Sec. 29.158. COORDINATION OF SERVICES. (a) In a manner consistent with federal law and regulations, each prekindergarten program provider, Head Start and Early Head Start program provider, and provider of an after-school child-care program provided at a school shall coordinate with the agency, the Texas Workforce Commission, and local workforce development boards regarding subsidized child-care services.


(b) The coordination required by this section must include:


(1) providing to an applicant for a child-care service information regarding:


(A) child-care resource and referral agencies serving the applicant's community;


(B) information and referral providers serving the applicant's community; or


(C) the prekindergarten program, local child-care and development fund contractor, or Head Start program administrator serving the applicant's community; and


(2) coordinating to ensure, to the extent practicable, that full-day, full-year child-care services are available to meet the needs of low-income parents who are working or participating in workforce training or workforce education.


(c) The coordination required by this section may also include:


(1) cooperating with each state agency regarding child-care or child-development studies conducted by that agency;


(2) collecting data necessary to determine a child's eligibility for subsidized child-care services or a prekindergarten, Head Start or Early Head Start, or after-school child-care program, to the extent that the collection of data does not violate the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g);


(3) cooperating to provide for staff training and professional development activities;


(4) identifying and developing methods for the collaborative provision of subsidized child-care services and prekindergarten, Head Start or Early Head Start, or after-school child-care program services, including:


(A) operating a combined system for eligibility determination or registration processes so that an applicant may apply for all services available in an applicant's community through a single point of access;


(B) sharing facilities or staff; and


(C) increasing the enrollment capacity of those programs;


(5) identifying child-care facilities located in close proximity to prekindergarten, Head Start or Early Head Start, or after-school child-care programs;


(6) coordinating transportation between child-care facilities identified under Subdivision (5) and a prekindergarten, Head Start or Early Head Start, or after-school child-care program; and


(7) coordinating with the State Center for Early Childhood Development to develop longitudinal studies to measure the effects of quality early childhood care and education programs on educational achievement, including high school performance and completion.


(d) In coordinating child-care services under this section and in making any related decision to contract with another provider for child-care services, the agency, Texas Workforce Commission, local workforce development boards, and each prekindergarten program provider, Head Start and Early Head Start program provider, and provider of an after-school child-care program provided at a school shall consider the quality of the services involved in the proposed coordination or contracting decision and shall give preference to services of the highest quality. Any appropriate indicator of quality services may be considered under this subsection, including whether the provider of the services:


(1) meets Texas Rising Star Program certification criteria;


(2) is accredited by a nationally recognized accrediting organization approved by the Texas Workforce Commission and the Department of Family and Protective Services;


(3) meets standards developed by the State Center for Early Childhood Development; or


(4) has achieved any other measurable target relevant to improving the quality of child care in this state.


(e) Any coordination required by this section that involves a prekindergarten program must be approved by the commissioner.


Added by Acts 2003, 78th Leg., ch. 790, Sec. 4, eff. Sept. 1, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 241 (H.B. 376), Sec. 1, eff. September 1, 2013.


Sec. 29.159. PROVISION OF CERTAIN INFORMATION. (a) Except as otherwise provided by this section, each provider of government-funded child-care services shall, at the time that a child is enrolled with the provider, furnish to the child's parent information regarding:


(1) effective early education settings; and


(2) any indicators that a child is ready for kindergarten that have been developed at the time the child is enrolled.


(b) If a provider does not have sufficient resources to provide the information specified by Subsection (a), the provider shall:


(1) furnish the parent with the appropriate telephone numbers or Internet sites through which the parent may obtain the information; or


(2) refer the parent to a local child-care resource and referral agency.


Added by Acts 2003, 78th Leg., ch. 790, Sec. 4, eff. Sept. 1, 2003.


Sec. 29.160. DEMONSTRATION PROJECTS. (a) The State Center for Early Childhood Development, in conjunction with a school district, regional education service center, institution of higher education, local government, local workforce development board, or community organization, may develop a quality rating system demonstration project under which prekindergarten program providers, licensed child-care facilities, or Head Start and Early Head Start program providers are assessed under a quality rating system.


(b) In developing the quality rating system demonstration project, the State Center for Early Childhood Development is entitled to:


(1) reasonable access to the sites at which the programs to be rated are operated, which may include sites under the authority of school districts or the Department of Protective and Regulatory Services; and


(2) technical assistance and support from the agency, the Texas Workforce Commission, and the Department of Protective and Regulatory Services to the extent that those agencies have the ability to provide assistance and support using existing agency resources.


(c) A school district, regional education service center, institution of higher education, local government, local workforce development board, or community organization may develop one or more coordination-of-resources demonstration projects under which government-funded child-care and early education services, including Head Start and Early Head Start, prekindergarten, and after-school child-care program services, child-care services provided by nonprofit or for-profit entities, and faith-based child-care programs, are operated in a coordinated and integrated manner. An entity that develops a proposed demonstration project under this subsection must obtain approval of the project from the state agency or agencies with regulatory jurisdiction over the subject matter involved in the project. Approval of a project under this subsection must be made contingent on development of a memorandum of understanding regarding the child-care and early education coordination and integration that is:


(1) entered into by each entity participating in the project;


(2) certified by the State Center for Early Childhood Development as meeting any standards developed under Section 29.155(g); and


(3) consistent with the applicable provisions of this section and applicable laws and regulations in a manner that at a minimum maintains existing child-care and early education program requirements and does not waive any existing health and safety standards.


(c-1) The memorandum of understanding required under Subsection (c) shall provide for:


(1) equal decision-making authority for entities participating in the project;


(2) uniform eligibility criteria for the project to the extent authorized by state and federal law;


(3) development of streamlined enrollment procedures and simplified forms for children eligible for services under the project;


(4) strategies for the colocation and management of staff and for facilitation of effective communication among staff members;


(5) alignment and coordination of program calendars;


(6) delineation of responsibilities for the provision of instructional supplies and materials and food services;


(7) development and implementation of a system by which eligible children are referred for services among the participating entities in a manner that complies with applicable laws and regulations;


(8) periodic meetings of the participating entities to address concerns relating to the administration and operation of the project; and


(9) periodic meetings of the participating entities to address common standards for the professional development of program staff and to create opportunities to ensure that local communities have effective program staff.


(c-2) A demonstration project established under Subsection (c) must include a program evaluation component that, in addition to assessing child-care and early education outcomes for young children, demonstrates:


(1) the extent to which program quality has been enhanced;


(2) the extent to which the number of children being served by full-day, full-year programs has increased;


(3) the extent to which professional development training or activities engaged in by program staff has increased; and


(4) that there has been no weakening of standards or diminishment of services.


(d) An entity that obtains approval of a coordination-of-resources demonstration project is entitled to a waiver or modification of any existing rule, policy, or procedure of the agency, the Texas Workforce Commission, or the Department of Protective and Regulatory Services that impairs the coordinated provision of government-funded child-care services, provided that the waiver or modification does not adversely affect the health, safety, or welfare of the children receiving services under the project. In addition, if applicable, the appropriate state agency must seek on behalf of the entity any available federal waiver from a federal rule, policy, or procedure imposed in connection with a Head Start program that impairs the coordinated provision of government-funded child-care services. Not later than the 30th day after the date on which a state agency becomes aware of an applicable federal waiver under this subsection, the state agency shall notify the appropriate entity of the date by which the state agency intends to seek the waiver.


(e) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1312, Sec. 99(2), eff. September 1, 2013.


(f) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1312, Sec. 99(2), eff. September 1, 2013.


Added by Acts 2003, 78th Leg., ch. 790, Sec. 4, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 275 (S.B. 23), Sec. 2, eff. September 1, 2005.


Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 99(2), eff. September 1, 2013.


Sec. 29.161. SCHOOL READINESS CERTIFICATION SYSTEM. (a) The State Center for Early Childhood Development, in conjunction with the P-16 Council established under Section 61.076, shall develop and adopt a school readiness certification system for use in certifying the effectiveness of prekindergarten programs, Head Start and Early Head Start programs, government-subsidized child-care programs provided by nonprofit or for-profit entities, government-subsidized faith-based child-care programs, and other government-subsidized child-care programs in preparing children for kindergarten. The system shall be made available on a voluntary basis to program providers seeking to obtain certification as evidence of the quality of the program provided.


(b) In developing and adopting the system, the center shall seek the active participation of all interested stakeholders, including parents and program providers.


(c) The system must:


(1) be reflective of research in the field of early childhood care and education;


(2) be well-grounded in the cognitive, social, and emotional development of young children;


(3) apply a common set of criteria to each program provider seeking certification, regardless of the type of program or source of program funding; and


(4) be capable of fulfilling the reporting and notice requirements of Sections 28.006(d) and (g).


(d) The agency shall collect each student's raw score results on the reading instrument administered under Section 28.006 from each school district using the system created under Subsection (a) and shall contract with the State Center for Early Childhood Development for purposes of this section.


(e) The State Center for Early Childhood Development shall, using funds appropriated for the school readiness certification system, provide the system created under Subsection (a) to each school district to report each student's raw score results on the reading instrument administered under Section 28.006.


(f) The agency shall:


(1) provide assistance to the State Center for Early Childhood Development in developing and adopting the school readiness certification system under this section, including providing access to data for the purpose of locating the teacher and campus of record for students; and


(2) require confidentiality and other security measures for student data provided to the State Center for Early Childhood Development as the agency's agent, consistent with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).


Added by Acts 2005, 79th Leg., Ch. 275 (S.B. 23), Sec. 3, eff. September 1, 2005.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.005, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1340 (S.B. 1871), Sec. 3, eff. June 15, 2007.


Sec. 29.162. RULES. (a) The commissioner may adopt rules for this subchapter, including rules establishing full-day and half-day minutes of operation requirements as provided by Section 25.081.


(b) Section 2001.0045, Government Code, does not apply to rules adopted under this section.


Added by Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 5, eff. June 15, 2017.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.024, eff. June 12, 2019.


SUBCHAPTER E-1. HIGH QUALITY PREKINDERGARTEN PROGRAM REQUIREMENTS



Sec. 29.164. DEFINITION. In this subchapter, "program" means a high quality prekindergarten program required under Section 29.153(c-1) to be provided free of tuition or fees in accordance with this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.026, eff. June 12, 2019.


Sec. 29.167. HIGH QUALITY CURRICULUM AND TEACHER REQUIREMENTS. (a) A school district shall select and implement a curriculum for a prekindergarten program that:


(1) includes the prekindergarten guidelines established by the agency;


(2) measures the progress of students in meeting the recommended learning outcomes; and


(3) does not use national curriculum standards developed by the Common Core State Standards Initiative.


(b) Each teacher for a prekindergarten program class must:


(1) be certified under Subchapter B, Chapter 21; and


(2) have one of the following additional qualifications:


(A) a Child Development Associate (CDA) credential or another early childhood education credential approved by the agency;


(B) certification offered through a training center accredited by Association Montessori Internationale or through the Montessori Accreditation Council for Teacher Education;


(C) at least eight years' experience of teaching in a nationally accredited child care program;


(D) be employed as a prekindergarten teacher in a school district that has received approval from the commissioner for the district's prekindergarten-specific instructional training plan that the teacher uses in the teacher's prekindergarten classroom; or


(E) an equivalent qualification.


(c) A school district may allow a teacher employed by the district to receive the training required to be awarded a Child Development Associate (CDA) credential from a regional education service center that offers the training in accordance with Section 8.058. Training may not include national curriculum standards developed by the Common Core State Standards Initiative.


(d) A school district must attempt to maintain an average ratio in any prekindergarten program class of not less than one certified teacher or teacher's aide for each 11 students.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.027, eff. June 12, 2019.


Sec. 29.168. FAMILY ENGAGEMENT PLAN. (a) A school district shall develop and implement a family engagement plan to assist the district in achieving and maintaining high levels of family involvement and positive family attitudes toward education. The family engagement plan must be based on family engagement strategies established under Subsection (b).


(b) The agency shall collaborate with other state agencies, including the Health and Human Services Commission, that provide services for children from birth through five years of age to establish prioritized family engagement strategies to be included in a school district's family engagement plan. A parent-teacher organization, community group, or faith-based institution may submit to the agency recommendations regarding the establishment of family engagement strategies, and the agency, in establishing the family engagement strategies, shall consider any received recommendations. The engagement strategies must:


(1) be based on empirical research;


(2) be proven to demonstrate significant positive short-term and long-term outcomes for early childhood education; and


(3) include programs and interventions that engage a family in supporting a student's learning at home.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 1027 (H.B. 1593), Sec. 1, eff. June 15, 2017.


Sec. 29.169. PROGRAM EVALUATION. (a) A school district shall:


(1) select and implement appropriate methods for evaluating the district's program classes by measuring student progress; and


(2) make data from the results of program evaluations available to parents.


(b) A school district may administer diagnostic assessments to students in a program class to evaluate student progress as required by Subsection (a) but may not administer a state standardized assessment instrument.


(c) An assessment instrument administered to a prekindergarten program class must be selected from a list of appropriate prekindergarten assessment instruments identified by the commissioner.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


For expiration of this section, see Subsection (c).



Sec. 29.170. PROGRAM FUNDING EVALUATION. (a) The commissioner shall evaluate the use and effectiveness of prekindergarten funding in improving student learning. The commissioner shall identify effective instruction strategies implemented by school districts under this subchapter.


(b) Beginning in 2018, not later than December 1 of each even-numbered year, the commissioner shall deliver a report to the legislature containing the results of the evaluation.


(c) This section expires December 31, 2024.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.028, eff. June 12, 2019.


Sec. 29.171. ELIGIBLE PRIVATE PROVIDERS. (a) A school district that offers a prekindergarten program under this subchapter may enter into a contract with an eligible private provider to provide services or equipment for the program.


(1) be accredited by a research-based, nationally recognized, and universally accessible accreditation system approved by the commissioner;


(2) be a Texas Rising Star Program provider with a three-star certification or higher;


(3) be a Texas School Ready! participant;


(4) have an existing partnership with a school district to provide a prekindergarten program not provided under this subchapter; or


(5) be accredited by an organization that is recognized by the Texas Private School Accreditation Commission.


(c) A prekindergarten program provided by a private provider under this section is subject to the requirements of this subchapter.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.029, eff. June 12, 2019.


Sec. 29.172. RULES. (a) The commissioner may adopt rules necessary to implement this subchapter.


(b) Section 2001.0045, Government Code, does not apply to rules adopted under this section.


Added by Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 7, eff. May 28, 2015.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.030, eff. June 12, 2019.


SUBCHAPTER F. CAREER AND TECHNOLOGY EDUCATION PROGRAM



Sec. 29.181. PUBLIC EDUCATION CAREER AND TECHNOLOGY EDUCATION GOALS. Each public school student shall master the basic skills and knowledge necessary for:


(1) managing the dual roles of family member and wage earner; and


(2) gaining entry-level employment in a high-skill, high-wage job or continuing the student's education at the postsecondary level.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.182. STATE PLAN FOR CAREER AND TECHNOLOGY EDUCATION. (a) The agency shall prepare and biennially update a state plan for career and technology education that sets forth objectives for career and technology education for the next biennium and long-term goals for the following five years.


(b) The state plan must include procedures designed to ensure that:


(1) all secondary and postsecondary students have the opportunity to participate in career and technology education programs;


(2) the state complies with requirements for supplemental federal career and technology education funding;


(3) career and technology education is established as a part of the total education system of this state and constitutes an option for student learning that provides a rigorous course of study consistent with the required curriculum under Section 28.002 and under which a student may receive specific education in a career and technology program that:


(A) incorporates competencies leading to academic and technical skill attainment;


(B) leads to:


(i) an industry-recognized license, credential, or certificate; or


(ii) at the postsecondary level, an associate or baccalaureate degree;


(C) includes opportunities for students to earn college credit for coursework; and


(D) includes, as an integral part of the program, participation by students and teachers in activities of career and technical student organizations supported by the agency and the State Board of Education; and


(4) a school district provides, to the greatest extent possible, to a student participating in a career and technology education program opportunities to enroll in dual credit courses designed to lead to a degree, license, or certification as part of the program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 41, eff. June 19, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 22, eff. June 10, 2013.


Sec. 29.183. CAREER AND TECHNOLOGY AND OTHER EDUCATIONAL PROGRAMS. (a) The board of trustees of a school district may conduct and supervise career and technology classes and other educational programs for students and for other persons of all ages and spend local maintenance funds for the cost of those classes and programs.


(b) In developing a career and technology program, the board of trustees shall consider the state plan for career and technology education required under Section 29.182.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.184. CONTRACTS WITH OTHER SCHOOLS FOR CAREER AND TECHNOLOGY CLASSES. (a) The board of trustees of a school district may contract with another school district or with a public or private postsecondary educational institution or trade or technical school that is regulated by this state, as designated in the state plan for career and technology education required under Section 29.182, to provide career and technology classes for students in the district.


(b) A student who attends career and technology classes at another school under a contract authorized by Subsection (a) is included in the average daily attendance of the district in which the student is regularly enrolled.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.185. CAREER AND TECHNOLOGY PROGRAM REQUIREMENTS AND PROCEDURES. (a) The agency shall prescribe requirements for career and technology education in public schools as necessary to comply with federal law.


(b) Repealed by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 5(1), eff. September 1, 2017.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 446 (S.B. 1410), Sec. 1, eff. September 1, 2011.


Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 5(1), eff. September 1, 2017.


Sec. 29.187. AWARD FOR DISTINGUISHED ACHIEVEMENT IN CAREER AND TECHNOLOGY EDUCATION; PROGRAM. (a) In addition to the authority granted under Section 29.183, the board of trustees of a school district may develop and offer a program that provides a rigorous course of study consistent with the required curriculum under Section 28.002 and under which a student may:


(1) receive specific education in a career and technology profession that:


(A) leads to postsecondary education; or


(B) meets or exceeds business or industry standards; and


(2) obtain from the district an award for distinguished achievement in career and technology education and a stamp or other notation on the student's transcript that indicates receipt of the award.


(b) An award granted under this section is not in lieu of a diploma or certificate of coursework completion issued under Section 28.025.


(c) In developing a program under this section, the board of trustees of a school district shall consider the state plan for career and technology education required under Section 29.182.


(d) The board of trustees of a school district may contract with an entity listed in Section 29.184(a) for assistance in developing the program or providing instruction to district students participating in the program.


(e) The board of trustees of a school district may also contract with a local business or a local institution of higher education for assistance in developing or operating a program under this section. A program may provide education in areas of technology unique to the local area.


(f) Repealed by Acts 2017, 85th Leg., R.S., Ch. 122 (H.B. 639), Sec. 2, eff. May 26, 2017.


(g) If a business that contracts with a district under Subsection (e) obtains any insurance related to the student other than liability insurance, any proceeds of the insurance must be used for the benefit of the student and the student's family.


(h) The board of trustees of a school district must submit a proposed program under this section to the commissioner of education in accordance with criteria established by the commissioner.


Added by Acts 2003, 78th Leg., ch. 61, Sec. 3, eff. May 16, 2003.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 122 (H.B. 639), Sec. 2, eff. May 26, 2017.


Sec. 29.188. RECOGNITION OF SUCCESSFUL CAREER AND TECHNOLOGY EDUCATION PROGRAM. The governor is encouraged to present a proclamation or certificate to each member of the business and industry community that the Texas Workforce Commission, in cooperation with the agency, determines has successfully assisted in the provision of a career and technology education program under this subchapter.


Added by Acts 2003, 78th Leg., ch. 61, Sec. 4, eff. Sept. 1, 2003.


Sec. 29.189. INVENTORY OF CREDENTIALS AND CERTIFICATES. (a) In this section:


(1) "Commission" means the Texas Workforce Commission.


(2) "Coordinating board" means the Texas Higher Education Coordinating Board.


(b) The agency, the coordinating board, and the commission shall jointly develop and post on their respective Internet websites an inventory of industry-recognized credentials and certificates that may be earned by a public high school student through a career and technology education program and that:


(1) are aligned to state and regional workforce needs; and


(2) serve as an entry point to middle- and high-wage jobs.


(c) The inventory must include for each credential or certificate:


(1) the associated career cluster;


(2) the awarding entity;


(3) the level of education required and any additional requirements for the credential or certificate;


(4) any fees for obtaining the credential or certificate; and


(5) the average wage or salary for jobs that require or prefer the credential or certificate.


(d) Each year, the agency, the coordinating board, and the commission jointly shall:


(1) review and, if necessary, update the inventory; and


(2) provide a copy of the inventory to each school district and public institution of higher education that offers a career and technology education program to public high school students.


Added by Acts 2017, 85th Leg., R.S., Ch. 494 (H.B. 2729), Sec. 1, eff. June 9, 2017.


Sec. 29.190. SUBSIDY FOR CERTIFICATION EXAMINATION.


(a) A student is entitled to a subsidy under this section if:


(1) the student:


(A) successfully completes the career and technology program of a school district in which the student receives training and instruction for employment; or


(B) is enrolled in a special education program under Subchapter A; and


(2) the student passes a certification examination to qualify for a license or certificate that is an industry certification for purposes of Section 39.053(c)(1)(B)(v), administered while the student is enrolled in a school district.


(a-1) A student may not receive more than one subsidy under this section.


(b) A teacher is entitled to a subsidy under this section if the teacher passes a certification examination related to cybersecurity.


(c) On approval by the commissioner, the agency shall pay each school district an amount equal to the cost paid by the district for a certification examination under this section. To obtain reimbursement for a subsidy paid under this section, a district must:


(1) pay the fee for the examination; and


(2) submit to the commissioner a written application on a form prescribed by the commissioner stating the amount of the fee paid under Subdivision (1) for the certification examination.


(d) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 211, Sec. 78(a)(1), eff. September 1, 2013.


(e) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 211, Sec. 78(a)(1), eff. September 1, 2013.


Added by Acts 2007, 80th Leg., R.S., Ch. 1225 (H.B. 2383), Sec. 1, eff. June 15, 2007.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 22, eff. September 1, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 23(a), eff. June 10, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 78(a)(1), eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 1088 (H.B. 3593), Sec. 3, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.031, eff. June 12, 2019.


Sec. 29.191. ACCIDENT, LIABILITY, AND AUTOMOBILE INSURANCE COVERAGE. (a) The board of trustees of a school district or the governing body of an open-enrollment charter school may obtain accident, liability, or automobile insurance coverage to protect:


(1) a business or entity that participates with the district or school to provide district or school students a career and technology program; and


(2) a district or school student who participates in a district or school career and technology program.


(b) The coverage authorized by this section must be:


(1) obtained from a reliable insurer authorized to engage in business in this state; or


(2) for a district, provided through the district's self-funded risk pool.


(c) The amount of coverage a district or school obtains:


(1) must be reasonable considering the financial condition of the district or school; and


(2) may not exceed the amount that is reasonably necessary in the opinion of, as applicable, the board of trustees of the district or the governing body of the school.


(d) If the board of trustees of a district or the governing body of a school obtains accident, liability, or automobile insurance coverage under this section, an administrator designated by the board of trustees of the district or governing body of the school, as applicable, shall notify the parent or guardian of each student participating in the career and technology program.


(e) A district or school may not directly or indirectly charge a student or the student's parent or guardian for the cost of providing to the student insurance under this section.


(f) The failure of any board of trustees of a district or the governing body of a school to obtain coverage authorized by this section or to obtain a specific amount of coverage under this section may not be construed as placing any legal liability on, as applicable, the district or the district's officers, agents, or employees or the school or the school's officers, agents, or employees.


Added by Acts 2017, 85th Leg., R.S., Ch. 122 (H.B. 639), Sec. 1, eff. May 26, 2017.


Sec. 29.192. IMMUNITY FROM LIABILITY. A student who participates in a career and technology program approved by a school district or an open-enrollment charter school is entitled to immunity in the same manner provided under Section 22.053 as a volunteer who is serving as a direct service volunteer of a district or school.


Added by Acts 2017, 85th Leg., R.S., Ch. 122 (H.B. 639), Sec. 1, eff. May 26, 2017.


Sec. 29.194. SUMMER CAREER AND TECHNOLOGY EDUCATION GRANT PROGRAM. (a) From funds appropriated or available for the purpose, the commissioner, in cooperation with an appropriate private entity, shall establish a grant program to provide funding to school districts for career and technology education courses offered during the summer.


(b) The commissioner may solicit and accept gifts, donations, or other contributions for the grant program established under this section.


(c) The commissioner may adopt rules as necessary to implement this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.032, eff. June 12, 2019.


SUBCHAPTER G. PUBLIC EDUCATION GRANT PROGRAM



Sec. 29.201. PARENTAL CHOICE. Notwithstanding any other provision of this code, as provided by this subchapter an eligible student may attend a public school in the district in which the student resides or may use a public education grant to attend any other district chosen by the student's parent.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.202. ELIGIBILITY. (a) A student is eligible to receive a public education grant or to attend another public school in the district in which the student resides under this subchapter if the student is assigned to attend a public school campus assigned an unacceptable performance rating that is made publicly available under Section 39.054 for:


(1) the student achievement domain under Section 39.053(c)(1); and


(2) the school progress domain under Section 39.053(c)(2).


(b) After a student has used a public education grant to attend a school in a district other than the district in which the student resides:


(1) the student does not become ineligible for the grant if the school on which the student's initial eligibility is based no longer meets the criteria under Subsection (a); and


(2) the student becomes ineligible for the grant if the student is assigned to attend a school that does not meet the criteria under Subsection (a).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 722, Sec. 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 767, Sec. 9, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 342, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 3.08, eff. May 31, 2006.


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 42, eff. June 19, 2009.


Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 7.007, eff. September 1, 2011.


Acts 2017, 85th Leg., R.S., Ch. 807 (H.B. 22), Sec. 5, eff. June 15, 2017.


Sec. 29.203. FINANCING. (a) A student who under this subchapter uses a public education grant to attend a public school in a school district other than the district in which the student resides is included in the average daily attendance of the district in which the student attends school.


(c) A school district is entitled to additional facilities assistance under Section 48.301 if the district agrees to:


(1) accept a number of students using public education grants that is at least one percent of the district's average daily attendance for the preceding school year; and


(2) provide services to each student until the student either voluntarily decides to attend a school in a different district or graduates from high school.


(d) A school district chosen by a student's parent under Section 29.201 is entitled to accept or reject the application for the student to attend school in that district but may not use criteria that discriminate on the basis of a student's race, ethnicity, academic achievement, athletic abilities, language proficiency, sex, or socioeconomic status. A school district that has more acceptable applicants for attendance under this subchapter than available positions must give priority to students at risk of dropping out of school as defined by Section 29.081 and must fill the available positions by lottery. However, to achieve continuity in education, a school district may give preference over at-risk students to enrolled students and to the siblings of enrolled students residing in the same household or other children residing in the same household as enrolled students for the convenience of parents, guardians, or custodians of those children.


(e) A school district chosen by a student's parent under Section 29.201 may not charge the student tuition.


(f) The school district in which a student resides shall provide each student attending a school in another district under this subchapter transportation free of charge to and from the school the student would otherwise attend.


(g) In this section:


(1) Repealed by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 4.001(a)(16), eff. September 1, 2019.


(2) "Guaranteed local revenue level" means a local revenue level equal to the dollar amount guaranteed level of state and local funds per weighted student per cent of tax effort, as provided by Section 48.202, multiplied by 10,000.


(3) Repealed by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 4.001(a)(16), eff. September 1, 2019.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 722, Sec. 2, eff. Sept. 1, 1997.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.034, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.035, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 4.001(a)(16), eff. September 1, 2019.


Sec. 29.204. NOTIFICATION. (a) Not later than January 1 of each year the commissioner shall, based on the most recent information available, provide notice to each school district in which a campus described by Section 29.202 is located that:


(1) identifies each campus in the district that meets the description in Section 29.202; and


(2) informs the district that the district must comply with Subsection (b).


(b) Not later than February 1 of each year, a school district shall notify the parent of each student in the district assigned to attend a campus described by Section 29.202 that the student is eligible for a public education grant. The notice must contain a clear, concise explanation of the public education grant program and of the manner in which the parent may obtain further information about the program.


Added by Acts 1997, 75th Leg., ch. 722, Sec. 3, eff. Sept. 1, 1997.


Sec. 29.205. CONTRACT AUTHORITY. The board of trustees of a school district may contract under Section 11.157 for the provision of educational services to a district student eligible to receive a public education grant under Section 29.202.


Added by Acts 1997, 75th Leg., ch. 722, Sec. 4, eff. Sept. 1, 1997.


SUBCHAPTER H. COMMUNITY



EDUCATION PROGRAMS



Sec. 29.251. DEFINITIONS. In this subchapter:


(1) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 73, Sec. 2.06(a)(2), eff. September 1, 2013.


(2) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 73, Sec. 2.06(a)(2), eff. September 1, 2013.


(3) Repealed by Acts 2013, 83rd Leg., R.S., Ch. 73, Sec. 2.06(a)(2), eff. September 1, 2013.


(4) "Community education" means the process by which the citizens in a school district, using the resources and facilities of the district, organize to support each other and to solve their mutual educational problems and meet their mutual lifelong needs. Community education may include:


(A) educational programs, including programs relating to cultural awareness, parenting skills education and parental involvement in school programs, and multilevel adult education and personal growth;


(B) community involvement programs, including programs for community economic development, school volunteers, partnerships between schools and businesses, coordination with community agencies, school-age child care, family literacy, and community use of facilities; and


(C) programs for youth enrolled in schools, including programs for dropout prevention and recovery programs, drug-free school programs, school-age parenting programs, and academic enhancement.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 73 (S.B. 307), Sec. 2.03, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 73 (S.B. 307), Sec. 2.06(a)(2), eff. September 1, 2013.


Sec. 29.252. AGENCY ROLE IN COMMUNITY EDUCATION. (a) The agency shall:


(1) develop, implement, and regulate a comprehensive statewide program for community education services;


(2) administer all state and federal funds for community education in this state, other than funds that another entity is specifically authorized to administer under other law; and


(3) accept and administer grants, gifts, services, and funds from available sources for use in community education.


(b) The agency may adopt rules for the administration of this subchapter.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 761, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 817, Sec. 5.03, eff. Sept. 1, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 73 (S.B. 307), Sec. 2.04, eff. September 1, 2013.


Sec. 29.255. STATE FUNDING. Funds shall be appropriated to implement statewide community education programs, including pilot programs to demonstrate the effectiveness of the community education concept. The agency shall ensure that public local education agencies, public nonprofit agencies, and community-based organizations have direct and equitable access to those funds.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 73 (S.B. 307), Sec. 2.05, eff. September 1, 2013.


Sec. 29.256. REIMBURSEMENT FOR COMMUNITY EDUCATION SERVICES. (a) A school district whose governing board elects to provide community education for all age groups may on application and according to rules adopted by the agency be reimbursed for those costs from state funds to the extent authorized by this section.


(b) Only a district that has in the preceding or current year achieved a level of community education services prescribed by the agency is eligible for reimbursement under this section. The agency's rules must contain specific provisions for eligibility and program operation.


(c) The cost to the state shall be paid from the foundation school fund.


(d) The legislature in the General Appropriations Act shall set a limit on the amount of funds that may be expended under this section each year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1071, Sec. 4, eff. Sept. 1, 1997.


Sec. 29.257. COMMUNITY EDUCATION DEVELOPMENT PROJECTS. (a) The legislature may appropriate money from the foundation school fund to the agency for developing and implementing community education projects. The agency shall actively seek gifts, grants, or other donations for purposes related to community education development projects, unless the acceptance is prohibited by other law. Money received under this subsection shall be deposited in the account established under Subsection (b) and may be appropriated only for the purpose for which the money was given.


(b) The community education development account is created as a dedicated account in the foundation school fund in the state treasury. The account shall consist of community education related gifts, grants, and donations and shall be administered by the agency.


(c) Subject to legislative appropriation and except as provided by Subsection (g), a school district to which the agency awards money for a community education development project is entitled to receive money for a period of three years. After that period, a project must be funded wholly from local sources. State funding under this section may not exceed:


(1) $50,000 for the first year of a project;


(2) $35,000 for the second year of a project; or


(3) $20,000 for the third year of a project.


(d) The State Board of Education by rule shall establish procedures for distributing community education development money to school districts. The procedures must include a statewide competitive process by which the agency, in accordance with procedures adopted by board rule, evaluates applications for community education development money and awards money to the districts whose projects the agency determines have the greatest merit. A school district may seek review of an agency determination regarding the award of money only in accordance with an administrative review process adopted by board rule. A school district may not seek judicial review of an agency determination.


(e) An application for funding under this section must include:


(1) a resolution adopted by the board of trustees of the school district adopting a particular community education development project plan;


(2) in accordance with rules adopted by the State Board of Education, a description of:


(A) the objectives of the proposed project, including, if appropriate, quantitative targets for the objectives; and


(B) the particular means by which the objectives are to be achieved;


(3) the estimated funding requirements and the data or analysis used to prepare the estimate;


(4) a statement outlining the manner in which the proposed project achieves goals for community education and complies with the requirements of this section;


(5) a statement of the manner in which the project is to be funded after the third year;


(6) a provision for a survey of community education needs in the district that:


(A) incorporates the objectives of community education;


(B) is completed and analyzed by the district in the first year of the project; and


(C) adheres to statistical techniques recognized as valid by professional statisticians;


(7) a provision for the maximum efficient use of existing school facilities in the first year of the project;


(8) a provision for the establishment of an advisory committee of at least 15 members who:


(A) are selected without regard to race or sex;


(B) are selected to reflect persons from the local business community, governmental agencies, public and private nonprofit educational interests, parents, and the general public; and


(C) serve without compensation; and


(9) a designation of a district community education administrator whose primary responsibility is the implementation and supervision of the community education program.


(f) The agency shall monitor each project awarded money under this section in accordance with rules adopted by the State Board of Education. The agency shall evaluate whether the project has satisfactorily carried out the district's objectives as set out in the community education project plan. The board by rule may provide a process for amending the plan.


(g) A school district is not entitled to funding for any year of a project for which:


(1) the district did not apply for funding; or


(2) the agency suspends the funding based on the agency's determination that the district has failed to satisfactorily implement the project's objectives.


(h) The State Board of Education by rule shall provide for an administrative process for the suspension of funding under Subsection (g)(2). The rules must be consistent with Chapter 2001, Government Code.


(i) The State Board of Education may adopt rules necessary to implement and enforce this section, including rules relating to financial audits of school districts that receive money under this section. Rules adopted under this section by the State Board of Education may not permit the board or the agency to waive any provision of this section.


(j) The agency may not use more than five percent of the funds appropriated for the projects under this section for the agency's administration of this section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1071, Sec. 5, eff. Sept. 1, 1997.


Sec. 29.259. ADULT HIGH SCHOOL DIPLOMA AND INDUSTRY CERTIFICATION CHARTER SCHOOL PROGRAM. (a) In this section, "adult education" means services and instruction provided below the college level for adults by a nonprofit entity described by Subsection (e).


(b) The commissioner shall establish an adult high school diploma and industry certification charter school program as provided by this section as a strategy for meeting industry needs for a sufficiently trained workforce within the state.


(c) The agency shall adopt and administer a standardized secondary exit-level assessment instrument appropriate for assessing adult education program participants who successfully complete high school curriculum requirements under a program provided under this section. The commissioner shall determine the level of performance considered to be satisfactory on the secondary exit-level assessment instrument for receipt of a high school diploma by an adult education program participant in a program provided under this section.


(d) Notwithstanding any other law and in addition to the number of charters allowed under Subchapter D, Chapter 12, the commissioner may, on the basis of an application submitted, grant a charter under the program to a single nonprofit entity described by Subsection (e) to provide an adult education program for individuals described by Subsection (g) to successfully complete:


(1) a high school program that can lead to a diploma; and


(2) career and technology education courses that can lead to industry certification.


(e) A nonprofit entity may be granted a charter under this section only if the entity:


(1) has a successful history of providing education services, including industry certifications and job placement services, to adults 18 years of age and older whose educational and training opportunities have been limited by educational disadvantages, disabilities, homelessness, criminal history, or similar circumstances; and


(2) agrees to commit at least $1 million to the adult education program offered.


(f) A nonprofit entity granted a charter under this section may partner with a public junior college to provide career and technology courses that lead to industry certification.


(g) A person who is at least 18 years of age and not more than 50 years of age is eligible to enroll in the adult education program under this section if the person:


(1) has failed to complete the curriculum requirements for high school graduation; or


(2) has failed to perform satisfactorily on an assessment instrument required for high school graduation.


(g-1) In admitting students to the adult education program under this section, the nonprofit entity shall give priority to a person who has not earned a high school equivalency certificate.


(h) The nonprofit entity must include in its charter application the information required by Subsection (i).


(i) A charter granted under this section must:


(1) include a description of the adult education program to be offered under this section; and


(2) establish specific, objective standards for receiving a high school diploma, including:


(A) successful completion of:


(i) if applicable to the program participant, the curriculum requirements under Section 28.025; or


(ii) the appropriate curriculum requirements applicable to the program participant; and


(B) satisfactory performance on the standardized secondary exit-level assessment instrument described by Subsection (c).


(i-1) The adult education program offered under this section must:


(1) use an instructional model in which at least 75 percent of instruction is delivered by a teacher in an in-person, interactive classroom setting; and


(2) provide support services to students, including:


(A) child care at no cost to students;


(B) life coaching services, at a ratio not to exceed one life coach for every 100 students, that use strategic and holistic interventions designed to facilitate graduation planning and assist students in overcoming life obstacles to achieve academic and career goals;


(C) mental health counseling; and


(D) for students with identified disabilities or impairments, instructional support services.


(i-2) If money is appropriated for a state fiscal year for expansion of the program under this section, not later than June 30 of the state fiscal year in which the appropriation is made, the nonprofit entity granted a charter under this section must submit any request for approval of an expansion amendment. The expansion amendment is considered approved if the commissioner does not provide written notice to the nonprofit entity of the disapproval of the expansion amendment on or before August 1.


(j) Funding for an adult education program under this section is provided based on the following:


(1) for participants who are 26 years of age and older, an amount per participant from available general revenue funds appropriated for the program equal to the statewide average amount of state funding per student in weighted average daily attendance that would be allocated under the Foundation School Program to an open-enrollment charter school under Section 12.106 were the student under 26 years of age; and


(2) for participants who are at least 18 years of age and under 26 years of age, an amount per participant through the Foundation School Program equal to the amount of state funding per student in weighted average daily attendance that would be allocated under the Foundation School Program for the student's attendance at an open-enrollment charter school in accordance with Section 12.106.


(k) Sections 12.107 and 12.128 apply as though funds under this section were funds under Subchapter D, Chapter 12.


(l) Repealed by Acts 2017, 85th Leg., R.S., Ch. 98 (S.B. 276), Sec. 2, eff. May 23, 2017.


(m) The commissioner shall adopt rules necessary to administer the program under this section. In adopting rules, the commissioner may modify charter school requirements only to the extent necessary for the administration of a charter school under this section that provides for adult education.


(n) An adult education program operated under a charter granted under this section is subject to:


(1) a provision of this title establishing a criminal offense; and


(2) a prohibition, restriction, or requirement, as applicable, imposed by this title or a rule adopted under this title, relating to:


(A) the Public Education Information Management System (PEIMS) to the extent necessary as determined by the commissioner to monitor compliance with this section and, as applicable, Subchapter D, Chapter 12;


(B) criminal history records under Subchapter C, Chapter 22;


(C) high school graduation requirements under Section 28.025, to the extent applicable to a program participant;


(D) special education programs under Subchapter A, Chapter 29;


(E) bilingual education under Subchapter B, Chapter 29;


(F) health and safety under Chapter 38;


(G) the requirement under Section 21.006 to report an educator's misconduct; and


(H) the right of an employee to report a crime, as provided by Section 37.148.


(o) The commissioner shall develop and adopt performance frameworks that establish standards by which to measure the performance of an adult high school program operated under a charter granted under this section in a manner consistent with the requirements provided for an open-enrollment charter school under Sections 12.1181(a) and (b). The commissioner shall include in the performance frameworks adopted under this subsection the following performance indicators:


(1) the percentage of program participants who performed satisfactorily on the standardized secondary exit-level assessment instrument described by Subsection (c);


(2) the percentage of program participants who successfully completed the high school program and earned a high school diploma;


(3) the percentage of program participants who successfully completed career and technology education courses and obtained industry certification;


(4) the percentage of program participants who have enrolled in an institution of higher education or private or independent institution of higher education, as those terms are defined under Section 61.003; and


(5) the percentage of program participants who earned a wage, salary, or other income increase that was significant as determined and reported by the Texas Workforce Commission.


(p) Each year, the commissioner shall evaluate the performance of an adult high school program operated under a charter granted under this section based on the applicable performance frameworks adopted under Subsection (o).


(q) The commissioner shall adopt rules as necessary to implement and administer the reporting requirements under Subsection (n)(2)(A) and the evaluation provisions of Subsections (o) and (p).


(r) The commissioner or an adult education program operated under a charter granted under this section may accept gifts, grants, or donations from any public or private source to be used for purposes of this section.


Added by Acts 2013, 83rd Leg., R.S., Ch. 478 (S.B. 1142), Sec. 1, eff. September 1, 2013.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 98 (S.B. 276), Sec. 1, eff. May 23, 2017.


Acts 2017, 85th Leg., R.S., Ch. 98 (S.B. 276), Sec. 2, eff. May 23, 2017.


Acts 2019, 86th Leg., R.S., Ch. 1060 (H.B. 1051), Sec. 3, eff. June 14, 2019.


Acts 2019, 86th Leg., R.S., Ch. 1060 (H.B. 1051), Sec. 4, eff. June 14, 2019.


Reenacted and amended by Acts 2019, 86th Leg., R.S., Ch. 1060 (H.B. 1051), Sec. 5, eff. June 14, 2019.


SUBCHAPTER I. PROGRAMS FOR STUDENTS WHO ARE DEAF OR HARD OF HEARING



Sec. 29.301. DEFINITIONS. In this subchapter:


(1) "Admission, review, and dismissal committee" means the committee required by State Board of Education rules to develop the individualized education program required by the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) for any student needing special education.


(2) "American Sign Language" means a complete, visual, and manual language with its own grammar and syntax.


(3) "English" includes writing, reading, speech, speech reading, cued speech, and any English-based manual-visual method of communication.


(4) "Unique communication mode" or "appropriate language mode" includes English and American Sign Language.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.302. FINDINGS. (a) The legislature finds that it is essential for the well-being and growth of students who are deaf or hard of hearing that educational programs recognize the unique nature of deafness and the hard-of-hearing condition and ensure that all students who are deaf or hard of hearing have appropriate, ongoing, and fully accessible educational opportunities. Students who are deaf or hard of hearing may choose to use a variety of language modes and languages, including oral and manual-visual language. Students who are deaf may choose to communicate through the language of the deaf community, American Sign Language, or through any of a number of English-based manual-visual languages. Students who are hard of hearing may choose to use spoken and written English, including speech reading or lip reading, together with amplification instruments, such as hearing aids, cochlear implants, or assistive listening systems, to communicate with the hearing population. Students who are deaf or hard of hearing may choose to use a combination of oral or manual-visual language systems, including cued speech, manual signed systems, and American Sign Language, or may rely exclusively on the oral-aural language of their choice. Students who are deaf or hard of hearing also may use other technologies to enhance language learning.


(b) The legislature recognizes that students who are deaf or hard of hearing should have the opportunity to develop proficiency in English, including oral or manual-visual methods of communication, and American Sign Language.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.303. UNIQUE COMMUNICATION. Students who are deaf or hard of hearing must have an education in which their unique communication mode is respected, used, and developed to an appropriate level of proficiency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.304. QUALIFICATIONS OF PERSONNEL. (a) A student who is deaf or hard of hearing must have an education in which teachers, psychologists, speech therapists, progress assessors, administrators, and others involved in education understand the unique nature of deafness and the hard-of-hearing condition. A teacher of students who are deaf or hard of hearing either must be proficient in appropriate language modes or use an interpreter certified in appropriate language modes if certification is available.


(b) Each school district shall employ or provide access to appropriate qualified staff with proficient communications skills, consistent with credentialing requirements, to fulfill the responsibilities of the school district, and shall make positive efforts to employ qualified individuals with disabilities.


(c) Regular and special personnel who work with students who are deaf or hard of hearing must be adequately prepared to provide educational instruction and services to those students.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.305. LANGUAGE MODE PEERS. If practicable and not in conflict with any admission, review, and dismissal committee recommendations, a student who is deaf or hard of hearing must have an education in the company of a sufficient number of peers using the same language mode and with whom the student can communicate directly. If practicable, the peers must be of the same or approximately the same age and ability.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.306. FAMILIAL AND ADVOCATE INVOLVEMENT. A student who is deaf or hard of hearing must have an education in which the student's parents or legal guardians and advocates for the student's parents or legal guardians are involved in determining the extent, content, and purpose of programs. Other individuals, including individuals who are deaf or hard of hearing, may be involved at the discretion of parents or legal guardians or the school district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.307. ROLE MODELS. A student who is deaf or hard of hearing shall be given the opportunity to be exposed to deaf or hard-of-hearing role models.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.308. REGIONAL PROGRAMS. Regional programs for students who are deaf or hard of hearing shall meet the unique communication needs of students who can benefit from those programs. Appropriate funding for those programs shall be consistent with federal and state law, and money appropriated to school districts for educational programs and services for students who are deaf or hard of hearing may not be allocated or used for any other program or service.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.309. COMPOSITION OF LOCAL SPECIAL EDUCATION ADVISORY COMMITTEE. If practicable, in a school district in which there are students who are deaf or hard of hearing, the local special education advisory committee required under State Board of Education rule must include persons who are deaf or hard of hearing and parents and legal guardians of students who are deaf or hard of hearing.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.310. PROCEDURES AND MATERIALS FOR ASSESSMENT AND PLACEMENT. (a) Procedures and materials for assessment and placement of students who are deaf or hard of hearing shall be selected and administered so as not to be racially, culturally, or sexually discriminatory.


(b) A single assessment instrument may not be the sole criterion for determining the placement of a student.


(c) The procedures and materials for the assessment and placement of a student who is deaf or hard of hearing shall be in the student's preferred mode of communication. All other procedures and materials used with any student who is deaf or hard of hearing and who has limited English proficiency shall be in the student's preferred mode of communication.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.311. EDUCATIONAL PROGRAMS. (a) Educational programs for students who are deaf or hard of hearing must be coordinated with other public and private agencies, including:


(1) agencies operating early childhood intervention programs;


(2) preschools;


(3) agencies operating child development programs;


(4) nonpublic, nonsectarian schools;


(5) agencies operating regional occupational centers and programs; and


(6) the Texas School for the Deaf.


(b) As appropriate, the programs must also be coordinated with postsecondary and adult programs for persons who are deaf or hard of hearing.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.312. PSYCHOLOGICAL COUNSELING SERVICES. Appropriate psychological counseling services for a student who is deaf or hard of hearing shall be made available at the student's school site in the student's primary mode of communication. In the case of a student who is hard of hearing, appropriate auditory systems to enhance oral communication shall be used if required by the student's admission, review, and dismissal committee.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.313. EVALUATION OF PROGRAMS. Each school district must provide continuous evaluation of the effectiveness of programs of the district for students who are deaf or hard of hearing. If practicable, evaluations shall follow program excellence indicators established by the agency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.314. TRANSITION INTO REGULAR CLASS. In addition to satisfying requirements of the admission, review, and dismissal committee and to satisfying requirements under state and federal law for vocational training, each school district shall develop and implement a transition plan for the transition of a student who is deaf or hard of hearing into a regular class program if the student is to be transferred from a special class or center or nonpublic, nonsectarian school into a regular class in a public school for any part of the school day. The transition plan must provide for activities:


(1) to integrate the student into the regular education program and specify the nature of each activity and the time spent on the activity each day; and


(2) to support the transition of the student from the special education program into the regular education program.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.315. TEXAS SCHOOL FOR THE DEAF MEMORANDUM OF UNDERSTANDING. The Texas Education Agency and the Texas School for the Deaf shall develop, agree to, and by commissioner rule adopt no later than September 1, 1998, a memorandum of understanding to establish:


(1) the method for developing and reevaluating a set of indicators of the quality of learning at the Texas School for the Deaf;


(2) the process for the agency to conduct and report on an annual evaluation of the school's performance on the indicators;


(3) the requirements for the school's board to publish, discuss, and disseminate an annual report describing the educational performance of the school;


(4) the process for the agency to assign an accreditation status to the school, to reevaluate the status on an annual basis, and, if necessary, to conduct monitoring reviews; and


(5) the type of information the school shall be required to provide through the Public Education Information Management System (PEIMS).


Added by Acts 1997, 75th Leg., ch. 1340, Sec. 6, eff. Sept. 1, 1997.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1046 (H.B. 1842), Sec. 5, eff. June 19, 2015.


Sec. 29.316. LANGUAGE ACQUISITION. (a) In this section:


(1) "Center" means the Educational Resource Center on Deafness at the Texas School for the Deaf.


(2) "Division" means the Division for Early Childhood Intervention Services of the Health and Human Services Commission.


(3) "Language acquisition" includes expressive and receptive language acquisition and literacy development in English, American Sign Language, or both, or, if applicable, in another language primarily used by a child's parent or guardian, and is separate from any modality used to communicate in the applicable language or languages.


(b) The commissioner and the executive commissioner of the Health and Human Services Commission jointly shall ensure that the language acquisition of each child eight years of age or younger who is deaf or hard of hearing is regularly assessed using a tool or assessment determined to be valid and reliable as provided by Subsection (d).


(c) Not later than August 31 of each year, the agency, the division, and the center jointly shall prepare and post on the agency's, the division's, and the center's respective Internet websites a report on the language acquisition of children eight years of age or younger who are deaf or hard of hearing. The report must:


(1) include:


(A) existing data reported in compliance with federal law regarding children with disabilities; and


(B) information relating to the language acquisition of children who are deaf or hard of hearing and also have other disabilities;


(2) state for each child:


(A) the instructional arrangement used with the child, as described by Section 42.151, including the time the child spends in a mainstream instructional arrangement;


(B) the specific language acquisition services provided to the child, including:


(i) the time spent providing those services; and


(ii) a description of any hearing amplification used in the delivery of those services, including:


(a) the type of hearing amplification used;


(b) the period of time in which the child has had access to the hearing amplification; and


(c) the average amount of time the child uses the hearing amplification each day;


(C) the tools or assessments used to assess the child's language acquisition and the results obtained;


(D) the preferred unique communication mode used by the child at home; and


(E) the child's age, race, and gender, the age at which the child was identified as being deaf or hard of hearing, and any other relevant demographic information the commissioner determines to likely be correlated with or have an impact on the child's language acquisition;


(3) compare progress in English literacy made by children who are deaf or hard of hearing to progress in that subject made by children of the same age who are not deaf or hard of hearing, by appropriate age range; and


(4) be redacted as necessary to comply with state and federal law regarding the confidentiality of student medical or educational information.


(d) The commissioner, the executive commissioner of the Health and Human Services Commission, and the center shall enter into a memorandum of understanding regarding:


(1) the identification of experts in deaf education; and


(2) the determination, in consultation with those experts, of the tools and assessments that are valid and reliable, in both content and administration, for use in assessing the language acquisition of children eight years of age or younger who are deaf or hard of hearing.


(e) The agency shall use existing collected data and data collected and transferred from the Department of State Health Services and the Health and Human Services Commission, as agreed upon in the memorandum of understanding, for the report under this section.


(f) The commissioner and the executive commissioner of the Health and Human Services Commission jointly shall adopt rules as necessary to implement this section, including rules for:


(1) assigning each child eight years of age or younger who is deaf or hard of hearing a unique identification number for purposes of the report required under Subsection (c) and to enable the tracking of the child's language acquisition, and factors affecting the child's language acquisition, over time; and


(2) implementing this section in a manner that complies with federal law regarding confidentiality of student medical or educational information, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) and the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), and any state law relating to the privacy of student information.


Added by Acts 2019, 86th Leg., R.S., Ch. 1036 (H.B. 548), Sec. 1(c), eff. September 1, 2019.


SUBCHAPTER K. PUBLIC JUNIOR COLLEGE AND SCHOOL DISTRICT PARTNERSHIP PROGRAM TO PROVIDE DROPOUT RECOVERY



Sec. 29.402. PARTNERSHIP. (a) A public junior college may enter into an articulation agreement to partner with one or more school districts located in the public junior college district to provide on the campus of the public junior college a dropout recovery program for students described by Subsection (b) to successfully complete and receive a diploma from a high school of the appropriate partnering school district.


(a-1) A public junior college with a service area located wholly or partly in a county with a population of more than three million may enter into an articulation agreement described by Subsection (a) with any school district located wholly or partly in a county with a population of more than three million.


(b) A person who is under 26 years of age is eligible to enroll in a dropout recovery program under this subchapter if the person:


(1) must complete not more than three course credits to complete the curriculum requirements for the foundation high school program for high school graduation; or


(2) has failed to perform satisfactorily on an end-of-course assessment instrument administered under Section 39.023(c) or an assessment instrument administered under Section 39.023(c) as that section existed before amendment by Chapter 1312 (S.B. 1031), Acts of the 80th Legislature, Regular Session, 2007.


(c) A public junior college under this section shall:


(1) design a dropout recovery curriculum that includes career and technology education courses that lead to industry or career certification;


(2) integrate into the dropout recovery curriculum research-based strategies to assist students in becoming able academically to pursue postsecondary education, including:


(A) high quality, college readiness instruction with strong academic and social supports;


(B) secondary to postsecondary bridging that builds college readiness skills, provides a plan for college completion, and ensures transition counseling; and


(C) information concerning appropriate supports available in the first year of postsecondary enrollment to ensure postsecondary persistence and success, to the extent funds are available for the purpose;


(3) offer advanced academic and transition opportunities, including dual credit courses and college preparatory courses, such as advanced placement courses; and


(4) coordinate with each partnering school district to provide in the articulation agreement that the district retains accountability for student attendance, student completion of high school course requirements, and student performance on assessment instruments as necessary for the student to receive a diploma from a high school of the partnering school district.


(c-1) A public junior college under this section may partner with a public technical institute, as defined by Section 61.003, to provide, as part of the dropout recovery program curriculum, career and technology education courses that lead to industry or career certification.


(d) A dropout recovery program provided under this subchapter must comply with the requirements of Sections 29.081(e) and (f).


Added by Acts 2011, 82nd Leg., R.S., Ch. 643 (S.B. 975), Sec. 1, eff. June 17, 2011.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1186 (H.B. 3708), Sec. 1, eff. June 17, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 155 (S.B. 860), Sec. 1, eff. May 24, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 24(a), eff. June 10, 2013.


Acts 2015, 84th Leg., R.S., Ch. 1177 (S.B. 1004), Sec. 1, eff. June 19, 2015.


Sec. 29.403. FINANCING. (a) A public junior college district may receive from each partnering school district for each student from that district enrolled in a dropout recovery program under this subchapter an amount negotiated between the junior college district and that partnering district not to exceed the total average per student funding amount in that district during the preceding school year for maintenance and operations, including state and local funding, but excluding money from the available school fund.


(b) A student who is enrolled in a program under this subchapter is included in determining the average daily attendance under Section 48.005 of the partnering school district.


(c) A public technical institute may receive from a partnering public junior college for each student enrolled in a career and technology education course as provided by Section 29.402(c-1) an amount negotiated between the public technical institute and the partnering public junior college.


Added by Acts 2011, 82nd Leg., R.S., Ch. 643 (S.B. 975), Sec. 1, eff. June 17, 2011.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1186 (H.B. 3708), Sec. 1, eff. June 17, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 155 (S.B. 860), Sec. 2, eff. May 24, 2013.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.036, eff. September 1, 2019.


Sec. 29.404. OTHER FUNDING. (a) To the extent consistent with the General Appropriations Act, a public junior college under this subchapter is eligible to receive dropout prevention and intervention program funds appropriated to the agency.


(b) A public junior college under this subchapter may receive gifts, grants, and donations to use for the purposes of this subchapter.


Added by Acts 2011, 82nd Leg., R.S., Ch. 643 (S.B. 975), Sec. 1, eff. June 17, 2011.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1186 (H.B. 3708), Sec. 1, eff. June 17, 2011.


SUBCHAPTER L. SCHOOL DISTRICT PROGRAM FOR RESIDENTS OF FORENSIC STATE SUPPORTED LIVING CENTER



Sec. 29.451. DEFINITIONS. In this subchapter, "alleged offender resident," "interdisciplinary team," and "state supported living center" have the meanings assigned by Section 555.001, Health and Safety Code.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Sec. 29.452. APPLICABILITY. This subchapter applies only to an alleged offender resident of a forensic state supported living center designated under Section 555.002, Health and Safety Code.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 207 (S.B. 1300), Sec. 3, eff. September 1, 2017.


Sec. 29.453. SCHOOL DISTRICT SERVICES. (a) A school district shall provide educational services, including services required under Subchapter A, to each alleged offender resident who is under 22 years of age and otherwise eligible under Section 25.001 to attend school in the district. The district shall provide educational services to each alleged offender resident who is 21 years of age on September 1 of the school year and otherwise eligible to attend school in the district until the earlier of:


(1) the end of that school year; or


(2) the student's graduation from high school.


(b) The educational placement of an alleged offender resident and the educational services to be provided by a school district to the resident shall be determined by the resident's admission, review, and dismissal committee consistent with federal law and regulations regarding the placement of students with disabilities in the least restrictive environment. The resident's admission, review, and dismissal committee shall:


(1) inform the resident's interdisciplinary team of a determination the committee makes in accordance with this subsection; and


(2) consult, to the extent practicable, with the resident's interdisciplinary team concerning such a determination.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Sec. 29.454. BEHAVIOR MANAGEMENT; BEHAVIOR SUPPORT SPECIALISTS. (a) The discipline of an alleged offender resident by a school district is subject to Sections 37.0021 and 37.004 and to federal law governing the discipline of students with disabilities.


(b) A school district in which alleged offender residents are enrolled shall employ one or more behavior support specialists to serve the residents while at school. A behavior support specialist must:


(1) hold a baccalaureate degree;


(2) have training in providing to students positive behavioral support and intervention, as determined by the commissioner of education; and


(3) meet any other requirement jointly determined by the commissioner of education and the commissioner of the Department of Aging and Disability Services.


(c) A behavior support specialist shall conduct for each alleged offender resident enrolled in the school district a functional behavioral assessment that includes:


(1) data collection, through interviews with and observation of the resident;


(2) data analysis; and


(3) development of an individualized school behavioral intervention plan for the resident.


(d) Each behavior support specialist shall:


(1) ensure that each alleged offender resident enrolled in the school district is provided behavior management services under a school behavioral intervention plan based on the resident's functional behavioral assessment, as described by Subsection (c);


(2) communicate and coordinate with the resident's interdisciplinary team to ensure that behavioral intervention actions of the district and of the forensic state supported living center do not conflict;


(3) in the case of a resident who regresses:


(A) ensure that necessary corrective action is taken in the resident's individualized education program or school behavioral intervention plan, as appropriate; and


(B) communicate with the resident's interdisciplinary team concerning the regression and encourage the team to aggressively address the regression;


(4) participate in the resident's admission, review, and dismissal committee meetings in conjunction with:


(A) developing and implementing the resident's school behavioral intervention plan; and


(B) determining the appropriate educational placement for each resident, considering all available academic and behavioral information;


(5) coordinate each resident's school behavioral intervention plan with the resident's program of active treatment provided by the forensic state supported living center to ensure consistency of approach and response to the resident's identified behaviors;


(6) provide training for school district staff and, as appropriate, state supported living center staff in implementing behavioral intervention plans for each resident; and


(7) remain involved with the resident during the school day.


(e) Section 22.0511 applies to a behavior support specialist employed under this section by a school district.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Sec. 29.455. MEMORANDUM OF UNDERSTANDING. (a) A school district in which alleged offender residents are enrolled in school and the forensic state supported living center shall enter into a memorandum of understanding to:


(1) establish the duties and responsibilities of the behavior support specialist to ensure the safety of all students and teachers while educational services are provided to a resident at a school in the district; and


(2) ensure the provision of appropriate facilities for providing educational services and of necessary technological equipment if a resident's admission, review, and dismissal committee determines that the resident must receive educational services at the forensic state supported living center.


(b) A memorandum of understanding under Subsection (a) remains in effect until superseded by a subsequent memorandum of understanding between the school district and the forensic state supported living center or until otherwise rescinded.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Sec. 29.456. FAILURE OF SCHOOL DISTRICT AND CENTER TO AGREE. (a) If a school district in which alleged offender residents are enrolled in school and the forensic state supported living center fail to agree on the services required for residents or responsibility for those services, the district or center may refer the issue in disagreement to the commissioner of education and the commissioner of the Department of Aging and Disability Services.


(b) If the commissioner of education and the executive commissioner of the Health and Human Services Commission are unable to bring the school district and forensic state supported living center to agreement, the commissioners shall jointly submit a written request to the attorney general to appoint a neutral third party knowledgeable in special education and intellectual and developmental disability issues to resolve each issue on which the district and the center disagree. The decision of the neutral third party is final and may not be appealed. The district and the center shall implement the decision of the neutral third party. The commissioner of education or the executive commissioner of the Health and Human Services Commission shall ensure that the district and the center implement the decision of the neutral third party.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 4, eff. September 1, 2019.


Sec. 29.457. FUNDING. (a) In addition to other funding to which a school district is entitled under this code, each district in which alleged offender residents attend school is entitled to an annual allotment of $5,100 for each resident in average daily attendance or a different amount for any year provided by appropriation.


(b) Not later than December 1 of each year, a school district that receives an allotment under this section shall submit a report accounting for the expenditure of funds received under this section to the governor, the lieutenant governor, the speaker of the house of representatives, the chairs of the standing committees of the senate and house of representatives with primary jurisdiction regarding persons with intellectual and developmental disabilities and public education, and each member of the legislature whose district contains any portion of the territory included in the school.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 5, eff. September 1, 2019.


Sec. 29.458. RULES. The commissioner may adopt rules as necessary to administer this subchapter.


Added by Acts 2009, 81st Leg., R.S., Ch. 284 (S.B. 643), Sec. 2, eff. June 11, 2009.


SUBCHAPTER N. PATHWAYS IN TECHNOLOGY EARLY COLLEGE HIGH SCHOOL (P-TECH) PROGRAM



Sec. 29.551. DEFINITIONS. In this subchapter:


(1) "Advisory council" means the P-TECH advisory council.


(2) "Articulation agreement" means a written commitment between school districts or open-enrollment charter schools and institutions of higher education to a program designed to provide students with a nonduplicative sequence of progressive achievement leading to degrees or certificates in a work-based education program.


(3) "Institution of higher education" has the meaning assigned by Section 61.003.


(4) "P-TECH program" means the Pathways in Technology Early College High School program established under this subchapter.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Sec. 29.552. P-TECH ADVISORY COUNCIL. (a) The advisory council is composed of:


(1) three members representing school districts and open-enrollment charter schools appointed as follows:


(A) one member appointed by the governor;


(B) one member appointed by the lieutenant governor; and


(C) one member appointed by the speaker of the house of representatives;


(2) three members representing institutions of higher education appointed as follows:


(A) one member appointed by the governor;


(B) one member appointed by the lieutenant governor; and


(C) one member appointed by the speaker of the house of representatives; and


(3) six members representing industry or business partners that participate or seek to participate in the P-TECH program appointed as follows:


(A) two members appointed by the governor;


(B) two members appointed by the lieutenant governor; and


(C) two members appointed by the speaker of the house of representatives.


(b) A member of the advisory council serves at the will of the member's appointing authority.


(c) The advisory council shall provide recommendations to the commissioner regarding:


(1) the establishment and administration of the P-TECH program; and


(2) the criteria for a campus's designation as a P-TECH school under Section 29.556.


(d) A member of the advisory council may not receive compensation for service on the advisory council but, subject to the availability of funding, may receive reimbursement for actual and necessary expenses, including travel expenses, incurred in performing advisory council duties. The advisory council may solicit and accept gifts, grants, and donations to pay for those expenses.


(e) Chapter 2110, Government Code, does not apply to the advisory council.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Sec. 29.553. P-TECH PROGRAM. (a) The commissioner shall establish and administer a Pathways in Technology Early College High School (P-TECH) program for students who wish to participate in a work-based education program.


(b) The P-TECH program must:


(1) be open enrollment;


(2) provide for a course of study that enables a participating student in grade levels 9 through 12 to combine high school courses and postsecondary courses;


(3) allow a participating student to complete high school and, on or before the sixth anniversary of the date of the student's first day of high school:


(A) receive a high school diploma and an associate degree, a two-year postsecondary certificate, or industry certification; and


(B) complete work-based training through an internship, apprenticeship, or other job training program;


(4) include:


(A) articulation agreements with institutions of higher education in this state to provide a participating student access to postsecondary educational and training opportunities at an institution of higher education; and


(B) memoranda of understanding with regional industry or business partners in this state to provide a participating student access to work-based training and education; and


(5) provide a participating student flexibility in class scheduling and academic mentoring.


(c) Each articulation agreement under Subsection (b)(4)(A) must address:


(1) curriculum alignment;


(2) instructional materials;


(3) the instructional calendar;


(4) courses of study;


(5) student enrollment and attendance;


(6) grading periods and policies; and


(7) administration of statewide assessment instruments under Subchapter B, Chapter 39.


(d) Each memorandum of understanding under Subsection (b)(4)(B) must include an agreement that the regional industry or business partner will give to a student who receives work-based training or education from the partner under the P-TECH program first priority in interviewing for any jobs for which the student is qualified that are available on the student's completion of the program.


(e) A student participating in the P-TECH program is entitled to the benefits of the Foundation School Program in proportion to the amount of time spent by the student on high school courses, in accordance with rules adopted by the commissioner, while completing the course of study established by the applicable articulation agreement or memorandum of understanding under Subsection (b)(4).


(f) The P-TECH program must be provided at no cost to participating students.


(g) The commissioner may accept gifts, grants, and donations from any source, including private and nonprofit organizations, for the P-TECH program. A private or nonprofit organization that contributes to the program may receive an award under Section 7.113.


(h) The commissioner shall collaborate with the Texas Workforce Commission and the Texas Higher Education Coordinating Board to develop and implement a plan for the P-TECH program that addresses:


(1) regional workforce needs;


(2) credit transfer policies between institutions of higher education; and


(3) internships, apprenticeships, and other work-based education programs.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Sec. 29.554. ACCIDENT MEDICAL EXPENSE, LIABILITY, AND AUTOMOBILE INSURANCE COVERAGE. (a) The board of trustees of a school district or the governing body of an open-enrollment charter school may obtain accident medical expense, liability, or automobile insurance coverage to protect:


(1) a business or entity that partners with the district or school under Section 29.553 to provide students with work-based training and education under the P-TECH program; and


(2) a student enrolled in the district or at the school who participates in the district's or school's P-TECH program.


(b) The coverage authorized by this section must be:


(1) obtained from a reliable insurer authorized to engage in business in this state; or


(2) provided through a self-funded risk pool of which the school district or open-enrollment charter school is a member.


(c) The amount of coverage the school district or open-enrollment charter school obtains must be reasonable considering the financial condition of the district or school and may not exceed the amount that, in the opinion of the board of trustees or governing body, is reasonably necessary.


(d) If the board of trustees of a school district or governing body of an open-enrollment charter school obtains accident medical expense, liability, or automobile insurance coverage under this section, the district or school shall notify the parent or guardian of each student participating in the P-TECH program.


(e) The failure of any board of trustees of a school district or governing body of an open-enrollment charter school to obtain coverage, or any specific amount of coverage, authorized by this section may not be construed as placing any legal liability on the district or school or the district's or school's officers, agents, or employees for any injury that results.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Sec. 29.556. P-TECH SCHOOL DESIGNATION AND GRANT PROGRAM. (a) A school district or open-enrollment charter school that implements or seeks to implement the P-TECH program at a campus may apply to the commissioner for designation of the campus as a P-TECH school in accordance with procedures established by the commissioner.


(b) From funds appropriated for that purpose, the commissioner by rule shall establish a grant program to assist school districts and open-enrollment charter schools in implementing the P-TECH program at a campus designated as a P-TECH school under Subsection (a). The commissioner may use not more than three percent of the funds appropriated for the grant program to cover the cost of administering the grant program and to provide technical assistance and support to P-TECH schools.


(c) The commissioner shall establish the criteria for a campus's designation as a P-TECH school and for participation in the grant program under this section. The criteria must require a school district or open-enrollment charter school to:


(1) enter into an articulation agreement under Section 29.553 only with institutions of higher education that are accredited by a national or regional accrediting agency recognized by the Texas Higher Education Coordinating Board;


(2) review and, as necessary, update each memorandum of understanding with a regional industry or business partner under Section 29.553 at least once every two years; and


(3) explain how the district's or school's P-TECH program will address regional workforce needs.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


Sec. 29.557. RULES. (a) The commissioner shall adopt rules as necessary to administer the P-TECH program, including rules to ensure a student participating in the program is not considered for accountability purposes to have dropped out of high school or failed to complete the curriculum requirements for high school graduation until after the sixth anniversary of the date of the student's first day in high school. The rules may provide for giving preference in receiving program benefits to a student who is in the first generation of the student's family to attend college and may establish other distinctions or criteria based on student need.


(b) The commissioner shall consult the Texas Higher Education Coordinating Board in administering the program. The Texas Higher Education Coordinating Board may adopt rules as necessary to exercise its powers and duties under this subchapter.


Added by Acts 2017, 85th Leg., R.S., Ch. 189 (S.B. 22), Sec. 1, eff. September 1, 2017.


SUBCHAPTER Z. MISCELLANEOUS PROGRAMS



Sec. 29.901. MILITARY INSTRUCTION. (a) In each school district in which military instruction is conducted under a state or federal law requiring the district to give bond or otherwise indemnify this state or the United States or any authorized agency of either in an amount and on conditions determined by any agency under that law for the care, safekeeping, and return of property furnished, the board of trustees may:


(1) make contracts with the proper governmental agency with respect to the teaching of courses in military training; and


(2) execute, as principal or surety, a bond to secure the contracts to procure arms, ammunition, animals, uniforms, equipment, supplies, means of transportation, or other needed property.


(b) In a district in which military instruction is given as provided by Subsection (a), available school funds may be spent to:


(1) procure from any guaranty or surety company any bond authorized by Subsection (a), in the amount and on the conditions required by the governmental agency; or


(2) reimburse this state or the United States for any loss pursuant to the terms of any contract entered into.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 29.9015. ARMED SERVICES VOCATIONAL APTITUDE BATTERY TEST. (a) Except as provided by Subsection (d) or (e), each school year each school district and open-enrollment charter school shall provide students in grades 10 through 12 an opportunity to take the Armed Services Vocational Aptitude Battery test and consult with a military recruiter.


(b) The test under Subsection (a) must be scheduled:


(1) during normal school hours; and


(2) to optimize student participation, at a time that limits conflicts with extracurricular activities.


(c) Each school district and open-enrollment charter school shall provide each student in grades 10 through 12 and the student's parent or person standing in parental relation to the student a notice of the date, time, and location of the scheduled administration of the Armed Services Vocational Aptitude Battery test.


(d) A school district or open-enrollment charter school may elect not to provide the Armed Services Vocational Aptitude Battery test only if the district or school provides an alternative test that:


(1) assesses a student's aptitude for success in a career field other than a career field that requires postsecondary education;


(2) is free to administer;


(3) requires minimal training and support of district or school faculty and staff to administer the test; and


(4) provides the student with a professional interpretation of the test results that allows the student to:


(A) explore occupations that are consistent with the student's interests and skills; and


(B) develop strategies to attain the student's career goals.


(e) This subsection applies only to a school district, open-enrollment charter school, or high school that, before September 1, 2017, entered into a contract under which a vocational aptitude test that does not comply with the requirements for an alternative test under Subsection (d) is provided to students in grades 10 through 12. A school district, open-enrollment charter school, or high school subject to this subsection may elect not to provide the Armed Services Vocational Aptitude Battery test for the term of the contract. On the expiration of the contract term, the exemption provided by this subsection is not applicable.


(f) Not later than August 1 of each year, the agency shall publish a list of school districts and open-enrollment charter schools that elected under Subsection (d) or (e) not to provide the Armed Services Vocational Aptitude Battery test during the previous school year.


Added by Acts 2017, 85th Leg., R.S., Ch. 949 (S.B. 1843), Sec. 1, eff. June 15, 2017.


Sec. 29.902. DRIVER EDUCATION. (a) The Texas Department of Licensing and Regulation shall develop a program of organized instruction in driver education and traffic safety for public school students. A student who will be 15 years of age or older before a driver education and traffic safety course ends may enroll in the course.


(b) The agency shall establish standards for the certification of professional and paraprofessional personnel who conduct the programs in the public schools.


(c) A school district shall consider offering a driver education and traffic safety course during each school year. If the district offers the course, the district may:


(1) conduct the course and charge a fee for the course in the amount determined by the agency to be comparable to the fee charged by a driver education school that holds a license under Chapter 1001; or


(2) contract with a driver education school that holds a license under Chapter 1001 to conduct the course.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 12.02, eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 1253 (H.B. 339), Sec. 2, eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 1044 (H.B. 1786), Sec. 1, eff. September 1, 2015.


Sec. 29.9021. WATER SAFETY EDUCATION. The agency by rule shall incorporate a curriculum module on recreational water safety into driver education instruction using the video on recreational water safety produced under Section 12.012, Parks and Wildlife Code, when the agency is notified that the video is available.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1275 (H.B. 673), Sec. 2, eff. June 17, 2011.


Sec. 29.903. CARDIOPULMONARY RESUSCITATION (CPR) INSTRUCTION; DONATIONS TO SCHOOL DISTRICTS FOR USE IN CPR INSTRUCTION. (a) A school district may accept from the agency donations the agency receives under Section 7.026 for use in providing instruction to students in the principles and techniques of CPR. A district may accept other donations, including donations of equipment, for use in providing the instruction.


(b) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1371, Sec. 8, eff. June 15, 2007.


(c) A district may use resources other than those made available under Section 7.026 or this section to provide instruction to students in the principles and techniques of CPR.


(d) The commissioner may adopt rules as necessary to implement this section.


Added by Acts 2001, 77th Leg., ch. 814, Sec. 2, eff. June 14, 2001. Amended by Acts 2003, 78th Leg., ch. 1275, Sec. 3(6), eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 5, eff. June 15, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1371 (S.B. 7), Sec. 8, eff. June 15, 2007.


Sec. 29.904. PLAN TO INCREASE ENROLLMENT IN INSTITUTIONS OF HIGHER EDUCATION. (a) This section applies only to a school district with one or more high schools that:


(1) during the preceding five years, have had an average of at least 26 students in the high school graduating class; and


(2) for any two consecutive years during the preceding five years, have been among the lowest 10 percent of high schools in this state in the percentage of students graduating from the high school and enrolling for the following academic year in an institution of higher education.


(b) The agency and the Texas Higher Education Coordinating Board shall collaborate in identifying each school district to which this section applies. Not later than May 1 of each year:


(1) the agency shall notify a district to which this section applies of the applicability of this section to the district unless the district is operating under a plan required by this section; and


(2) the coordinating board shall notify each public institution of higher education in this state in closest geographic proximity to a district to which this section applies of the applicability of this section to the district unless the district is operating under a plan required by this section.


(c) Except as otherwise provided by this subsection, not later than August 1 of the year in which a school district receives notice under Subsection (b), the district shall enter into an agreement with the public institution of higher education in this state in closest geographic proximity to the district to develop a plan to increase the percentage of the district's graduating seniors who enroll in an institution of higher education for the academic year following graduation. The public institution of higher education in this state in closest geographic proximity to the district shall enter into an agreement under this subsection unless that institution of higher education or the district recruits another public institution of higher education in this state to enter into that agreement. A district and the public institution of higher education entering into the agreement with the district may also enter into an agreement with one or more other public institutions of higher education in this state to participate in developing the plan.


(d) A plan developed under this section:


(1) must establish clear, achievable goals for increasing the percentage of the school district's graduating seniors, particularly the graduating seniors attending a high school described by Subsection (a), who enroll in an institution of higher education for the academic year following graduation;


(2) must establish an accurate method of measuring progress toward the goals established under Subdivision (1) that may include the percentage of district high school students and the percentage of students attending a district high school described by Subsection (a) who:


(A) are enrolled in a course for which a student may earn college credit, such as an advanced placement or international baccalaureate course or a course offered through concurrent enrollment in high school and at an institution of higher education;


(B) are enrolled in courses that meet the curriculum requirements for the distinguished level of achievement under the foundation high school program as determined under Section 28.025;


(C) have submitted a free application for federal student aid (FAFSA);


(E) graduate from high school;


(F) graduate from an institution of higher education; and


(G) have taken college entrance examinations and the average score of those students on the examinations;


(3) must cover a period of at least five years; and


(4) may be directed at district students at any level of primary or secondary education.


(e) A school district shall file the plan with the commissioner of education and the commissioner of higher education.


(f) A school district must implement the plan at the beginning of the school year following the year during which the district receives notice under Subsection (b).


(g) A school district may revise the plan as necessary in response to achieving or failing to achieve goals under the plan.


Added by Acts 2001, 77th Leg., ch. 795, Sec. 1, eff. Sept 1, 2001. Renumbered from Education Code Sec. 29.903 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(16), eff. Sept. 1, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 43, eff. June 19, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 25(a), eff. June 10, 2013.


Acts 2017, 85th Leg., R.S., Ch. 842 (H.B. 2223), Sec. 2.02, eff. June 15, 2017.


Sec. 29.905. COMMUNITY EDUCATION RELATING TO HATE CRIME LAW. (a) The attorney general, in cooperation with the agency, shall develop a program that provides instruction about state laws on hate crimes:


(1) at appropriate grade levels, to students; and


(2) to the community at large.


(b) The agency shall make the program available to a school on the request of the board of trustees or the school district of which the school is a part, or if the school is an open-enrollment charter school, on the request of the governing body of the school.


Added by Acts 2001, 77th Leg., ch. 85, Sec. 6.01, eff. Sept. 1, 2001. Renumbered from Education Code Sec. 29.903 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(17), eff. Sept. 1, 2003.


Sec. 29.906. CHARACTER TRAITS INSTRUCTION. (a) The State Board of Education shall integrate positive character traits into the essential knowledge and skills adopted for kindergarten through grade 12, as appropriate.


(b) The State Board of Education must include the following positive character traits:


(1) courage;


(2) trustworthiness, including honesty, reliability, punctuality, and loyalty;


(3) integrity;


(4) respect and courtesy;


(5) responsibility, including accountability, diligence, perseverance, and self-control;


(6) fairness, including justice and freedom from prejudice;


(7) caring, including kindness, empathy, compassion, consideration, patience, generosity, and charity;


(8) good citizenship, including patriotism, concern for the common good and the community, and respect for authority and the law;


(9) school pride; and


(10) gratitude.


(c) Each school district and open-enrollment charter school must adopt a character education program that includes the positive character traits listed in Subsection (b). In developing or selecting a character education program under this section, a school district shall consult with a committee selected by the district that consists of:


(1) parents of district students;


(2) educators; and


(3) other members of the community, including community leaders.


(d) This section does not require or authorize proselytizing or indoctrinating concerning any specific religious or political belief.


(e) The agency shall:


(1) maintain a list of character education programs that school districts have implemented that meet the criteria under Subsection (b);


(2) based on data reported by districts, annually designate as a Character Plus School each school that provides a character education program that:


(A) meets the criteria prescribed by Subsection (b); and


(B) is approved by the committee selected under Subsection (c); and


(3) include in the report required under Section 39.332:


(A) based on data reported by districts, the impact of character education programs on student discipline and academic achievement; and


(B) other reported data relating to character education programs the agency considers appropriate for inclusion.


(f) The agency may accept money from federal government and private sources to use in assisting school districts in implementing character education programs that meet the criteria prescribed by Subsection (b).


(g) The State Board of Education may adopt rules as necessary to implement this section.


Added by Acts 2001, 77th Leg., ch. 478, Sec. 1, eff. June 11, 2001. Renumbered from Education Code Sec. 29.903 by Acts 2003, 78th Leg., ch. 1275, Sec. 2(18), eff. Sept. 1, 2003.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 44, eff. June 19, 2009.


Acts 2019, 86th Leg., R.S., Ch. 1057 (H.B. 1026), Sec. 1, eff. June 14, 2019.


Acts 2019, 86th Leg., R.S., Ch. 1057 (H.B. 1026), Sec. 2, eff. June 14, 2019.


Sec. 29.907. CELEBRATE FREEDOM WEEK. (a) To educate students about the sacrifices made for freedom in the founding of this country and the values on which this country was founded, the week in which September 17 falls is designated as Celebrate Freedom Week in public schools. For purposes of this subsection, Sunday is considered the first day of the week.


(b) The agency, in cooperation with other state agencies who voluntarily participate, may promote Celebrate Freedom Week through a coordinated program. Nothing in this subsection shall give any other state agency the authority to develop a program that provides instruction unless funds are specifically appropriated to that agency for that purpose.


Added by Acts 2001, 77th Leg., ch. 451, Sec. 1, eff. June 7, 2001. Renumbered from Education Code Sec. 29.903 and amended by Acts 2003, 78th Leg., ch. 594, Sec. 1, eff. June 20, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 6.0031, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 40 (H.B. 708), Sec. 1, eff. May 8, 2007.


Sec. 29.9071. TEXAS MILITARY HEROES DAY. (a) To educate students about the sacrifices made by brave Texans who have served in the armed forces of the United States, the governor shall designate a day to be known as Texas Military Heroes Day in public schools.


(b) Texas Military Heroes Day shall include appropriate instruction, as determined by each school district. Instruction may include:


(1) information about persons who have served in the armed forces of the United States and are from the community or the geographic area in which the district is located; and


(2) participation, in person or using technology, in age-appropriate learning projects at battlefields and gravesites associated with a person who has served in the armed forces.


(c) The agency may collaborate with other state agencies to promote Texas Military Heroes Day.


Added by Acts 2017, 85th Leg., R.S., Ch. 759 (S.B. 1901), Sec. 1, eff. June 12, 2017.


Sec. 29.9072. HOLOCAUST REMEMBRANCE WEEK. (a) In this section, "Holocaust" has the meaning assigned by Section 449.001, Government Code.


(b) To educate students about the Holocaust and inspire in students a sense of responsibility to recognize and uphold human value and to prevent future atrocities, the governor shall designate a week to be known as Holocaust Remembrance Week in public schools.


(c) Holocaust Remembrance Week shall include age-appropriate instruction, as determined by each school district. Instruction shall include:


(1) information about the history of and lessons learned from the Holocaust;


(2) participation, in person or using technology, in learning projects about the Holocaust; and


(3) the use of materials developed or approved by the Texas Holocaust and Genocide Commission.


Added by Acts 2019, 86th Leg., R.S., Ch. 654 (S.B. 1828), Sec. 1, eff. June 10, 2019.


Sec. 29.908. EARLY COLLEGE EDUCATION PROGRAM. (a) The commissioner shall establish and administer an early college education program for students who are at risk of dropping out of school or who wish to accelerate completion of the high school program. For purposes of this subsection, "student at risk of dropping out of school" has the meaning assigned by Section 29.081.


(b) The program must:


(1) provide for a course of study that enables a participating student to combine high school courses and college-level courses during grade levels 9 through 12;


(2) allow a participating student to complete high school and, on or before the fifth anniversary of the date of the student's first day of high school, receive a high school diploma and either:


(A) an associate degree; or


(B) at least 60 semester credit hours toward a baccalaureate degree;


(3) include articulation agreements with colleges, universities, and technical schools in this state to provide a participating student access to postsecondary educational and training opportunities at a college, university, or technical school; and


(4) provide a participating student flexibility in class scheduling and academic mentoring.


(b-1) Each articulation agreement under Subsection (b)(3) must address:


(1) curriculum alignment;


(2) instructional materials;


(3) the instructional calendar;


(4) courses of study;


(5) eligibility of students for higher education financial assistance;


(6) student enrollment and attendance;


(7) grading periods and policies; and


(8) administration of statewide assessment instruments under Subchapter B, Chapter 39.


(b-2) The P-16 Council established under Section 61.076 shall provide guidance in case of any conflict that arises between parties to an articulation agreement under Subsection (b)(3).


(c) A student participating in the program is entitled to the benefits of the Foundation School Program in proportion to the amount of time spent by the student on high school courses, in accordance with rules adopted by the commissioner, while completing the course of study established by the applicable articulation agreement under Subsection (b)(3).


(d) The commissioner may accept gifts, grants, and donations from any source, including private and nonprofit organizations. Private and nonprofit organizations that contribute to the fund shall receive an award under Section 7.113.


(e) The commissioner shall collaborate with the Texas Workforce Commission and the Texas Higher Education Coordinating Board to develop and implement a strategic plan to enhance private industry participation under this section. The plan must include:


(1) strategies to increase private industry participation; and


(2) incentives for businesses and nonprofit organizations that choose to make donations and work with high schools that participate in a program under this section to maximize job placement opportunities for program graduates.


(f) Not later than December 1, 2014, the commissioner shall provide a report that summarizes the strategic plan developed under Subsection (e) to the lieutenant governor, the speaker of the house of representatives, the governor, the Texas Workforce Commission, and the Texas Higher Education Coordinating Board. The Texas Education Agency, the Texas Workforce Commission, and the Texas Higher Education Coordinating Board shall each make the report available on the respective agency's Internet website.


(g) The commissioner may adopt rules as necessary to administer the program. The rules may provide for giving preference in receiving program benefits to a student who is in the first generation of the student's family to attend college and may establish other distinctions or criteria based on student need. The commissioner shall consult the Texas Higher Education Coordinating Board in administering the program. The Texas Higher Education Coordinating Board may adopt rules as necessary to exercise its powers and duties under this section. The P-16 Council may make recommendations, including recommendations for rules, concerning administration of the program.


Added by Acts 2003, 78th Leg., ch. 1201, Sec. 2, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 879 (S.B. 1146), Sec. 1, eff. June 17, 2005.


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.006, eff. September 1, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 1220 (S.B. 1557), Sec. 1, eff. September 1, 2013.


Sec. 29.909. DISTANCE LEARNING COURSES. (a) A school district or open-enrollment charter school that provides a course through distance learning and seeks to inform other districts or schools of the availability of the course may submit information to the agency regarding the course, including the number of positions available for student enrollment in the course. The district or school may submit updated information at the beginning of each semester.


(b) The agency shall make information submitted under this section available on the agency's Internet website.


(c) The commissioner may adopt rules necessary to implement this section, including rules governing student enrollment. The commissioner may not adopt rules governing course pricing, and the price for a course shall be determined by the school districts or open-enrollment charter schools involved.


Added by Acts 2013, 83rd Leg., R.S., Ch. 1386 (H.B. 1926), Sec. 2, eff. June 14, 2013.


Sec. 29.910. PROGRAMS OF MUTUAL BENEFIT. (a) The commissioner, in coordination with appropriate representatives of institutions of higher education and school districts, shall develop:


(1) a diagnostic and assistance program for each subject assessed by an assessment instrument under Section 39.023(c); and


(2) other academic programs of mutual benefit to school districts and institutions of higher education.


(b) The commissioner shall seek private funding to make available and maintain on the Internet each diagnostic and assistance program developed under Subsection (a)(1).


Added by Acts 2003, 78th Leg., ch. 1212, Sec. 10, eff. June 20, 2003.


Sec. 29.911. GENERATION TEXAS WEEK. (a) To educate middle school, junior high school, and high school students about the importance of higher education, each school district and each open-enrollment charter school offering any of those grade levels shall designate one week during the school year as Generation Texas Week.


(b) During the designated week, each middle school, junior high school, and high school shall provide students with comprehensive grade-appropriate information regarding the pursuit of higher education. The information provided must include information regarding:


(1) higher education options available to students;


(2) standard admission requirements for institutions of higher education, including:


(A) overall high school grade point average;


(B) required curriculum;


(C) college readiness standards and expectations as determined under Section 28.008; and


(D) scores necessary on generally recognized tests or assessment instruments used in admissions determinations, including the Scholastic Assessment Test and the American College Test;


(3) automatic admission of certain students to general academic teaching institutions as provided by Section 51.803; and


(4) financial aid availability and requirements, including the financial aid information provided by school counselors under Section 33.007(b).


(c) In addition to the information provided under Subsection (b), each middle school, junior high school, and high school shall provide to the students during the designated week at least one public speaker to promote the importance of higher education.


Added by Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 12, eff. June 15, 2007.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 1033 (H.B. 2909), Sec. 1, eff. June 17, 2011.


Acts 2011, 82nd Leg., R.S., Ch. 1033 (H.B. 2909), Sec. 2, eff. June 17, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 23, eff. June 14, 2013.


Sec. 29.915. FINANCIAL LITERACY PILOT PROGRAM. (a) In this section, "program" means the financial literacy pilot program.


(b) To the extent funding is available under Subsection (e), the agency by rule shall establish and implement a financial literacy pilot program to provide students in participating school districts with the knowledge and skills necessary as self-supporting adults to make critical decisions relating to personal financial matters.


(c) The agency shall collaborate with the Office of Consumer Credit Commissioner and the State Securities Board to develop the curriculum and instructional materials for the program. The curriculum and instructional materials must include information about:


(1) avoiding and eliminating credit card debt;


(2) understanding the rights and responsibilities of renting or buying a home;


(3) managing money to make the transition from renting a home to home ownership;


(4) starting a small business;


(5) being a prudent investor in the stock market and using other investment options;


(6) beginning a savings program;


(7) bankruptcy;


(8) the types of bank accounts available to consumers and the benefits of maintaining a bank account;


(9) balancing a check book;


(10) the types of loans available to consumers and becoming a low-risk borrower; and


(11) the use of insurance as a means of protecting against financial risk.


(d) The agency shall develop an application and selection process for selecting school districts to participate in the program. The agency may select not more than 100 school districts to participate in the program.


(e) The agency may solicit and accept a gift, grant, or donation from any source, including a foundation, private entity, governmental entity, or institution of higher education, for the implementation of the program. The program may be implemented only if sufficient funds are available under this subsection for that purpose.


Added by Acts 2005, 79th Leg., Ch. 832 (S.B. 851), Sec. 1, eff. June 17, 2005.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 23, eff. September 1, 2009.


Acts 2013, 83rd Leg., R.S., Ch. 1221 (S.B. 1590), Sec. 2, eff. June 14, 2013.


Sec. 29.916. HOME-SCHOOLED STUDENT MERIT SCHOLARSHIP AND ADVANCED PLACEMENT TESTING. (a) In this section:


(1) "Home-schooled student" means a student who predominantly receives instruction in a general elementary or secondary education program that is provided by the parent, or a person standing in parental authority, in or through the child's home.


(2) "PSAT/NMSQT" means the Preliminary SAT/National Merit Scholarship Qualifying Test sponsored by the College Board and Educational Testing Service and the National Merit Scholarship Corporation.


(b) A school district shall permit a home-schooled student entitled under Section 25.001 to attend public school in the district to participate in an administration of the PSAT/NMSQT or a college advanced placement test offered by the district. A school district shall require a home-schooled student to pay the same fee to participate in a test under this subsection that a student enrolled in the district is required to pay.


(c) A school district shall post on an Internet website maintained by the district the date the PSAT/NMSQT will be administered and the date any college advanced placement tests will be administered. The notice required under this subsection must state that the PSAT/NMSQT or the advanced placement test is available for home-schooled students eligible to attend school in the district and describe the procedures for a home-schooled student to register for the test. A school district that does not maintain an Internet website must publish the information required by this subsection in a newspaper in the district. If a newspaper is not published in the school district, the district shall provide for the publication of notice in at least one newspaper in the county in which the district's central administrative office is located. The information required under this subsection must be posted or published at the same time and with the same frequency with which the information is provided to a student who attends a district school.


(d) The commissioner may adopt rules as necessary to implement this section.


Added by Acts 2007, 80th Leg., R.S., Ch. 1211 (H.B. 1844), Sec. 1, eff. June 15, 2007.


Sec. 29.917. HIGHER EDUCATION AND WORKFORCE READINESS PROGRAMS. (a) From funds appropriated for the purpose, the commissioner may award grants to organizations that provide volunteers to teach classroom or after-school programs to enhance:


(1) college readiness;


(2) workforce readiness;


(3) dropout prevention; or


(4) personal financial literacy.


(b) To implement or administer a program under this section, the commissioner may accept gifts, grants, and donations from public or private entities.


(c) The commissioner may conduct a study of the programs under this section to determine the success of the programs in preparing students for higher education and participation in the workforce.


Added by Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 12, eff. June 15, 2007.


Sec. 29.918. DROPOUT PREVENTION STRATEGIES. (a) Notwithstanding Section 48.104, a school district or open-enrollment charter school with a high dropout rate, as determined by the commissioner, must submit a plan to the commissioner describing the manner in which the district or charter school intends to use the compensatory education allotment under Section 48.104 for developing and implementing research-based strategies for dropout prevention. The district or charter school shall submit the plan not later than December 1 of each school year preceding the school year in which the district or charter school will receive the compensatory education allotment to which the plan applies.


(b) A school district or open-enrollment charter school to which this section applies may not spend or obligate more than 25 percent of the district's or charter school's compensatory education allotment unless the commissioner approves the plan submitted under Subsection (a). The commissioner shall complete an initial review of the district's or charter school's plan not later than March 1 of the school year preceding the school year in which the district or charter school will receive the compensatory education allotment to which the plan applies.


(c) The commissioner shall adopt rules to administer this section. The commissioner may impose interventions or sanctions under Subchapter A, Chapter 39A, or Section 39A.251, 39A.252, or 39A.253 if a school district or open-enrollment charter school fails to timely comply with this section.


(d) A school district or open-enrollment charter school to which this section applies shall, in its plan submitted under Subsection (a):


(1) design a dropout recovery plan that includes career and technology education courses or technology applications courses that lead to industry or career certification;


(2) integrate into the dropout recovery plan research-based strategies to assist students in becoming able academically to pursue postsecondary education, including:


(A) high-quality, college readiness instruction with strong academic and social supports;


(B) secondary to postsecondary bridging that builds college readiness skills, provides a plan for college completion, and ensures transition counseling; and


(C) information concerning appropriate supports available in the first year of postsecondary enrollment to ensure postsecondary persistence and success, to the extent funds are available for the purpose; and


(3) plan to offer advanced academic and transition opportunities, including dual credit courses and college preparatory courses, such as advanced placement courses.


(e) A school district to which this section applies may enter into a partnership with a public junior college in accordance with Section 29.402 in order to fulfill a plan submitted under Subsection (a).


(f) Any program designed to fulfill a plan submitted under Subsection (a) must comply with the requirements of Sections 29.081(e) and (f).


Added by Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 12, eff. June 15, 2007.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 45, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 1328 (H.B. 3646), Sec. 24, eff. September 1, 2009.


Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 21.003(18), eff. September 1, 2017.


Acts 2017, 85th Leg., R.S., Ch. 925 (S.B. 1566), Sec. 10, eff. September 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.037, eff. September 1, 2019.


Sec. 29.920. WINTER CELEBRATIONS. (a) A school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including:


(1) "Merry Christmas";


(2) "Happy Hanukkah"; and


(3) "happy holidays."


(b) Except as provided by Subsection (c), a school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of:


(1) more than one religion; or


(2) one religion and at least one secular scene or symbol.


(c) A display relating to a traditional winter celebration may not include a message that encourages adherence to a particular religious belief.


Added by Acts 2013, 83rd Leg., R.S., Ch. 236 (H.B. 308), Sec. 1, eff. June 14, 2013.


Sec. 29.922. TEXAS WORKFORCE INNOVATION NEEDS PROGRAM. (a) In this section:


(1) "Private or independent institution of higher education" has the meaning assigned by Section 61.003.


(2) "Program" means the Texas Workforce Innovation Needs Program.


(b) The Texas Workforce Innovation Needs Program is established to:


(1) provide selected school districts, public institutions of higher education, and private or independent institutions of higher education with the opportunity to establish innovative programs designed to prepare students for careers for which there is demand in this state; and


(2) use the results of those programs to inform the governor, legislature, and commissioner concerning methods for transforming public education and higher education in this state by improving student learning and career preparedness.


(c) To apply to participate in the program, a school district, public institution of higher education, or private or independent institution of higher education must use the form and apply in the time and manner established by commissioner rule. The application process must require each applicant district or institution of higher education to submit a detailed plan as required by Subsections (d) and (e) of the instruction and accountability the applicant would provide under the program.


(d) A plan submitted under Subsection (c):


(1) must:


(A) be designed to support improved instruction of and learning by students and provide evidence of the accurate assessment of the quality of learning on campus;


(B) describe any waiver of an applicable prohibition, requirement, or restriction for which the district or institution of higher education intends to apply; and


(C) include any other information required by commissioner rule; and


(2) may, if submitted by a school district, designate one or more campuses rather than the entire district to participate in the program.


(e) In addition to satisfying the requirements under Subsection (d)(1), a plan submitted under Subsection (c) must, to the greatest extent appropriate for the grade or higher education levels served under the program, either:


(1) focus on engagement of students in competency-based learning as necessary to earn postsecondary credentials, including:


(A) career and technical certificates;


(B) associate's degrees;


(C) bachelor's degrees; and


(D) graduate degrees; or


(2) incorporate career and technical courses into dual enrollment courses or into the early college education program under Section 29.908 to provide students the opportunity to earn a career or technical certificate or associate's degree.


(f) From among the school districts and institutions of higher education that apply as required under this section, the commissioner shall select those school districts and institutions of higher education that present the plans that are most likely to be effective in producing the next generation of higher performing public schools and institutions of higher education that provide education and training in an innovative form and manner to prepare students for careers for which there is demand in this state.


(g) The commissioner shall convene program leaders periodically to discuss methods to transform learning opportunities for all students, build cross-institution support systems and training, and share best practices tools and processes.


(h) A school district or institution of higher education participating in the program or the commissioner may, for purposes of this section, accept gifts, grants, or donations from any source, including a private or governmental entity.


(i) To cover the costs of administering the program, the commissioner may charge a fee to a school district or institution of higher education participating in the program.


(j) In consultation with interested school districts, institutions of higher education, and other appropriate interested persons, the commissioner shall adopt rules as necessary for purposes of this section.


Added by Acts 2013, 83rd Leg., R.S., Ch. 215 (H.B. 3662), Sec. 1, eff. June 10, 2013.


Sec. 29.923. WORKPLACE SAFETY TRAINING INFORMATION. (a) The agency shall collect and make available to a school district on request information regarding workplace safety training that may be included as part of the district's curriculum.


(b) A school district may develop a workplace safety program that provides educators access to the information described by Subsection (a) and encourages educators to include the workplace safety training information in the curriculum of appropriate courses provided to students enrolled in grades 7 through 12.


Added by Acts 2017, 85th Leg., R.S., Ch. 461 (H.B. 2010), Sec. 1, eff. June 9, 2017.


Sec. 29.924. BLENDED LEARNING GRANT PROGRAM. (a) In this section, "blended learning" means an instructional delivery method that combines classroom and online instruction.


(b) From funds appropriated or available for purposes of this section, the commissioner shall establish a grant program to assist school districts and open-enrollment charter schools in developing and implementing effective blended learning models, including an innovative mathematics instructional program at a campus designated as a mathematics innovation zone as provided by Section 28.020. In awarding grants under the program, the commissioner shall give priority to school districts and open-enrollment charter schools that have the highest enrollment of students who are educationally disadvantaged.


(c) A school district or open-enrollment charter school that receives a grant under this section must:


(1) develop a plan to implement a blended learning model that meets the requirements under Subsection (d);


(2) provide training to teachers and other relevant personnel on effective blended learning practices using a program approved by the commissioner for that purpose;


(3) after completion of the training under Subdivision (2):


(A) certify to the agency that the blended learning model has been implemented; and


(B) immediately following the fourth school year of implementation, submit to the agency a report on student outcomes under the blended learning model; and


(4) provide any other information to the agency as necessary for the implementation of this section.


(d) A plan to implement a blended learning model developed under Subsection (c) must:


(1) during the first year require implementation of the model across an entire grade level at a campus and permit subsequent expansion of the model to additional grade levels at the campus or, if the campus has achieved full implementation of the model across all grade levels, to additional campuses in a manner that provides students a consistent learning experience;


(2) require teachers to differentiate instruction for all students in a grade level using the blended learning model, including by:


(A) using curricula and assessments that allow each student to progress at the student's pace based on demonstrated proficiency;


(B) providing learning opportunities that give students, in collaboration with the teacher, control over the time, place, path, and pace of the student's learning; and


(C) allocating a certain amount of instructional preparation time to collaborating with students and developing blended learning lesson plans and activities driven by individual student needs;


(3) provide teachers and other relevant personnel with professional development opportunities regarding blended learning; and


(4) require the use of a proficiency-based assessment to inform instruction and provide teachers with relevant information regarding strengths and gaps in a student's learning and proficiency in the essential knowledge and skills.


(e) Funds awarded under the grant program may be used only to implement a program under this section and satisfy the requirements under Subsection (c).


(f) A school district or open-enrollment charter school may receive a grant under this section for not more than four consecutive school years.


(g) The commissioner shall adopt rules as necessary to implement this section, including rules establishing an application and selection process for awarding grants under this section and a list of programs that may be used for training under Subsection (c)(2). In adopting rules under this subsection, the commissioner may not impose any requirements on a school district's or open-enrollment charter school's plan to implement a blended learning model not listed under Subsection (d).


Added by Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.033, eff. June 12, 2019.


Sec. 29.925. TEXAS GIRLS IN STEM. In recognition of Texas Girls in STEM Day, each school district may include throughout the month of March appropriate instruction, activities, and programs to encourage and celebrate women in career fields related to science, technology, engineering, and mathematics. The instruction may include programs that profile women in those fields and related fields, including finance, information technology, data analytics, cybersecurity, and health care cloud architecture.


Added by Acts 2019, 86th Leg., R.S., Ch. 890 (H.B. 3435), Sec. 2, eff. June 10, 2019.

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EDUCATION CODE CHAPTER 29. EDUCATIONAL PROGRAMS

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE F. CURRICULUM, PROGRAMS, AND SERVICES CHAPTER 29. EDUCATIONAL PROGRAMS SUBCHAPTER A. SPECIAL EDUCATION PROGRAM Sec. 29.001. STATEWIDE PLAN.

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Slide #8 Original Sources of Law: Judicial Law

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Slide #8 Original Sources of Law: Judicial Law

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Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176 (1982)

The US Supreme Court ruled that IDEA does not ensure that a disabled student is entitled to receive an education that helps them reach their full potential.

The deaf student is this case was denied an interpreter for her class because she was given a listening device

The student could only process 60% of the information audibly conveyed in class

The court decided that disability services only need “to permit the child to benefit educationally from that instruction.” (not reach their full potential)

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Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

Rehnquist, William H, and Supreme Court Of The United States. U.S. Reports: Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176. 1981. Periodical. https://www.loc.gov/item/usrep458176/.

APA citation style:

Rehnquist, W. H. & Supreme Court Of The United States. (1981) U.S. Reports: Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176. [Periodical] Retrieved from the Library of Congress, https://www.loc.gov/item/usrep458176/.

MLA citation style:

Rehnquist, William H, and Supreme Court Of The United States. U.S. Reports: Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176. 1981. Periodical. Retrieved from the Library of Congress, <www.loc.gov/item/usrep458176/>.

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U.S. Reports: Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176 (1982).

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Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate. Rehnquist, William H, and Supreme Court Of The United States. U.S. Reports: Hendrick Hudson Dist. Bd. Of Ed. v. Rowley, 458 U.S. 176. 1981. Periodical. https://www.loc.gov/item/usrep458176/. Rehnquist, W. H. & Supreme Court Of The United States.

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Slide #9 Original Sources of Law: State Administrative law

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Slide #9 Original Sources of Law: State Administrative law

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The Texas Education Agency

Chapter 89. Adaptations for Special Populations

Subchapter AA. Commissioner's Rules Concerning Special Education Services

Instructional Arrangements and Settings.

Citation: 19 TAC § 89.1005

Texas State public schools shall comply with state and federal law and regulations

Outlines the student screening process for special education services

Identifies the age range for student eligibility

Identifies legibility criteria

Outlines parental rights

Outlines requirements for the IEP

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Chapter 89. Adaptations for Special Populations
Subchapter AA. Commissioner's Rules Concerning Special Education Services

Statutory Authority: The provisions of this Subchapter AA issued under the Texas Education Code, §§28.0212, 28.0213, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.012, 29.015, 29.017, 30.0015, 30.002, 30.057, 30.083, 37.0021, 37.004, 39.023(c), and 42.003; and 34 Code of Federal Regulations, §§300.100, 300.111, 300.114, 300.121, 300.124, 300.129, 300.160, 300.307, 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 Juvenile Justice Department, 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.

Statutory Authority: The provisions of this §89.1001 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1005. Instructional Arrangements and Settings.

(a) Each local school district shall be able to provide services with special education personnel to students with disabilities in order to meet the special needs of those students in accordance with 34 Code of Federal Regulations, §§300.114-300.118.

(b) Subject to §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures), for the purpose of determining the student's instructional arrangement/setting, the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee.

(c) Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education services and shall include the following.

(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the regular classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect, and/or support services to the student and/or the student's regular classroom teacher(s) necessary to enrich the regular classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, educational aides, curricular or instructional modifications/accommodations, special materials/equipment, positive classroom behavioral interventions and supports, consultation with the student and his/her regular classroom teacher(s) regarding the student's progress in regular education classes, staff development, and reduction of ratio of students to instructional staff.

(2) Homebound. This instructional arrangement/setting is for providing special education and related services to students who are served at home or hospital bedside.

(A) Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. The student's ARD committee shall determine the amount of services to be provided to the student in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (b) of this section.

(B) Home instruction may also be used for services to infants and toddlers (birth through age 2) and young children (ages 3-5) when determined appropriate by the child's individualized family services plan (IFSP) committee or ARD committee. This arrangement/setting also applies to school districts described in Texas Education Code, §29.014.

(3) Hospital class. This instructional arrangement/setting is for providing special education instruction in a classroom, 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.

(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a regular education classroom or in a setting other than a regular education classroom. When the only special education or related service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement.

(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than regular education for less than 50% of the regular school day.

(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a self-contained program for 50% or more of the regular school day on a regular school campus.

(7) Off-home campus. This instructional arrangement/setting is for providing special education and related services to the following, including, but not limited to, students at South Texas Independent School District and Windham School District:

(A) a student who is one of a group of students from more than one school district served in a single location when a free appropriate public education is not available in the respective sending district;

(B) a student in a community setting or environment (not operated by a school district) that prepares the student for postsecondary education/training, integrated employment, and/or independent living in coordination with the student's individual transition goals and objectives, including a student with regularly scheduled instruction or direct involvement provided by school district personnel or a student in a facility not operated by a school district (other than a nonpublic day school) with instruction provided by school district personnel; or

(C) a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.

(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school for special education.

(9) Vocational adjustment class/program. This instructional arrangement/setting is for providing special education and related services to a student who is placed on a job (paid or unpaid unless otherwise prohibited by law) with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's individual transition goals and only after the school district's career and technical education classes have been considered and determined inappropriate for the student.

(10) 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 provided on a school district campus. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.

(11) State-supported living center. This instructional arrangement/setting is for providing special education and related services to a student who resides at a state-supported living center when the services are provided at the state-supported living center location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.

(d) The appropriate instructional arrangement for students from birth through the age of two with visual and/or auditory impairments shall be determined in accordance with the IFSP, current attendance guidelines, and the agreement memorandum between the Texas Education Agency (TEA) and Texas Health and Human Services Commission Early Childhood Intervention Services.

(e) For nonpublic day school placements, the school district or shared service arrangement shall submit information to TEA indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement is contracting. The school district or shared service arrangement shall not count contract students' average daily attendance as eligible. TEA shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law.

(f) Other program options that may be considered for the delivery of special education and related services to a student may include the following:

(1) contracts with other school districts; and

(2) other program options as approved by TEA.

Statutory Authority: The provisions of this §89.1005 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1005 adopted to be effective March 14, 2021, 46 TexReg 1466.

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

§89.1011. Full Individual and Initial Evaluation.

(a) Referral of students for a full individual and initial evaluation for possible special education services must be a part of the district's overall, general education referral or screening system. Students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to evidence-based intervention; and other academic or behavior support services. A student is not required to be provided with interventions for any specific length of time prior to a referral being made or a full individual and initial evaluation being conducted. If the student continues to experience difficulty in the general classroom with the provision of interventions, district personnel must refer the student for a full individual and initial evaluation. A referral for a full individual and initial evaluation may be initiated at any time by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student.

(b) If a parent submits a written request to a school district's director of special education services or to a district administrative employee for a full individual and initial evaluation of a student, the school district must, not later than the 15th school day after the date the district receives the request:

(1) provide the parent with prior written notice of its proposal to conduct an consistent with 34 Code of Federal Regulations (CFR), §300.503; a copy of the procedural safeguards notice required by 34 CFR, §300.504; and an opportunity to give written consent for the evaluation; or

(2) provide the parent with prior written notice of its refusal to conduct an evaluation consistent with 34 CFR, §300.503, and a copy of the procedural safeguards notice required by 34 CFR, §300.504.

(c) Except as otherwise provided in this section, a written report of a full individual and initial evaluation of a student must be completed as follows:

(1) not later than the 45th school day following the date on which the school district receives written consent for the evaluation from the student's parent, except that if a student has been absent from school during that period on three or more school days, that period must be extended by a number of school days equal to the number of school days during that period on which the student has been absent; or

(2) for students under five years of age by September 1 of the school year and not enrolled in public school and for students enrolled in a private or home school setting, not later than the 45th school day following the date on which the school district receives written consent for the evaluation from the student's parent.

(d) The admission, review, and dismissal (ARD) committee must make its decisions regarding a student's initial eligibility determination and, if appropriate, individualized education program (IEP) and placement within 30 calendar days from the date of the completion of the written full individual and initial evaluation report. If the 30th day falls during the summer and school is not in session, the student's ARD committee has until the first day of classes in the fall to finalize decisions concerning the student's initial eligibility determination, IEP, and placement, unless the full individual and initial evaluation indicates that the student will need extended school year services during that summer.

(e) Notwithstanding the timelines in subsections (c) and (d) of this section, if the school district received the written consent for the evaluation from the student's parent at least 35 but less than 45 school days before the last instructional day of the school year, the written report of a full individual and initial evaluation of a student must be provided to the student's parent not later than June 30 of that year. The student's ARD committee must meet not later than the 15th school day of the following school year to consider the evaluation. If, however, the student was absent from school three or more days between the time that the school district received written consent and the last instructional day of the school year, the timeline in subsection (c)(1) of this section applies to the date the written report of the full individual and initial evaluation is required. If an initial evaluation completed not later than June 30 indicates that the student will need extended school year services during that summer, the ARD committee must meet as expeditiously as possible.

(f) If a student was in the process of being evaluated for special education eligibility by a school district and enrolls in another school district before the previous school district completed the full individual and initial evaluation, the new school district must coordinate with the previous school district as necessary and as expeditiously as possible to ensure a prompt completion of the evaluation in accordance with 34 CFR, §300.301(d)(2) and (e) and §300.304(c)(5). The timelines in subsections (c) and (e) of this section do not apply in such a situation if:

(1) the new school district is making sufficient progress to ensure a prompt completion of the evaluation; and

(2) the parent and the new school district agree to a specific time when the evaluation will be completed.

(g) For purposes of subsections (b), (c), and (e) of this section, school day does not include a day that falls after the last instructional day of the spring school term and before the first instructional day of the subsequent fall school term.

(h) For purposes of subsections (c)(1) and (e) of this section, a student is considered absent for the school day if the student is not in attendance at the school's official attendance taking time or at the alternate attendance taking time set for that student. A student is considered in attendance if the student is off campus participating in an activity that is approved by the school board and is under the direction of a professional staff member of the school district, or an adjunct staff member who has a minimum of a bachelor's degree and is eligible for participation in the Teacher Retirement System of Texas.

Statutory Authority: The provisions of this §89.1011 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1035. Age Ranges for Student Eligibility.

(a) Pursuant to state and federal law, services provided in accordance with this subchapter must 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), (b)(3)(D), (f)(1), (f)(2), (f)(3), or (f)(4)(D) 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 will 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), (b)(3)(D), (f)(1), (f)(2), (f)(3), or (f)(4)(D) 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 must be available from birth to students with visual or auditory impairments.

Statutory Authority: The provisions of this §89.1035 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective March 14, 2021, 46 TexReg 1466.

§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), §300.8(a), subject to the provisions of 34 CFR, §300.8(c), the Texas Education Code, §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 committee. Any evaluation or re-evaluation of a student must be conducted in accordance with 34 CFR, §§300.301-300.306 and 300.122. 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, §300.8(c)(1). Students with pervasive developmental disorders are included under this category. The team's written report of evaluation must 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, §300.8(c)(2). In meeting the criteria stated in 34 CFR, §300.8(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, §300.8(c)(3), or for hearing impairment as stated in 34 CFR, §300.8(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 otolaryngologist or by a licensed medical doctor, with documentation that an otolaryngologist is not reasonably available, and an audiological evaluation performed by a licensed audiologist. The evaluation data must 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, §300.8(c)(4). The written report of evaluation must include specific recommendations for behavioral supports and interventions.

(5) Intellectual disability. A student with an intellectual disability is one who has been determined to meet the criteria for an intellectual disability as stated in 34 CFR, §300.8(c)(6). In meeting the criteria stated in 34 CFR, §300.8(c)(6), a student with an intellectual disability is one who:

(A) has been determined to have significantly sub-average intellectual functioning as measured by a standardized, individually administered test of cognitive ability in which the overall test score is at least two standard deviations below the mean, when taking into consideration the standard error of measurement of the test; and

(B) concurrently exhibits deficits in at least two of the following areas of adaptive behavior: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

(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, §300.8(c)(7). In meeting the criteria stated in 34 CFR, §300.8(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 must 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, §300.8(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 due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette's Disorder as stated in 34 CFR, §300.8(c)(9). 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) Prior to and as part of the evaluation described in subparagraph (B) of this paragraph and 34 CFR, §§300.307-300.311, and in order to ensure that underachievement in a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or mathematics, the following must be considered:

(i) data that demonstrates the student was provided appropriate instruction in reading (as described in 20 United States Code (USC), §6368(3)), and/or mathematics within general education settings delivered by qualified personnel; and

(ii) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal evaluation of student progress during instruction. Data-based documentation of repeated assessments may include, but is not limited to, response to intervention progress monitoring results, in-class tests on grade-level curriculum, or other regularly administered assessments. Intervals are considered reasonable if consistent with the assessment requirements of a student's specific instructional program.

(B) A student with a learning disability is one who:

(i) has been determined through a variety of assessment tools and strategies to meet the criteria for a specific learning disability as stated in 34 CFR, §300.8(c)(10), in accordance with the provisions in 34 CFR, §§300.307-300.311; and

(ii) does not achieve adequately for the student's age or meet state-approved grade-level standards in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving when provided appropriate instruction, as indicated by performance on multiplemeasures such as in-class tests; grade average over time (e.g. six weeks, semester); norm- or criterion-referenced tests; statewide assessments; or a process based on the student's response to evidence-based intervention; and

(I) does not make sufficient progress when provided a process based on the student's response to evidence-based intervention (as defined in 20 USC, §7801(21)), as indicated by the student's performance relative to the performance of the student's peers on repeated, curriculum-based assessments of achievement at reasonable intervals, reflecting student progress during classroom instruction; or

(II) exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to age, grade-level standards, or intellectual ability, as indicated by significant variance among specific areas of cognitive function, such as working memory and verbal comprehension, or betweenspecific areas of cognitive function and academic 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, §300.8(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, §300.8(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, §300.8(c)(13). Information from a variety of sources must be considered by the multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on visual impairment in order to determine the need for specially designed instruction as stated in 34 CFR, §300.39(b)(3), and must include:

(i) a medical report by a licensed ophthalmologist or optometrist that indicates the visual loss stated in exact measures of visual field and corrected visual acuity, at a distance and at near range, in each eye. If exact measures cannot be obtained, the eye specialist must so state and provide best estimates. The report should also include a diagnosis and prognosis whenever possible and whether the student has:

(I) no vision or visual loss after correction; or

(II) a progressive medical condition that will result in no vision or a visual loss after correction;

(ii) a functional vision evaluation by a certified teacher of students with visual impairments or a certified orientation and mobility specialist. 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;

(iii) a learning media assessment by a certified teacher 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; and

(iv) as part of the full individual and initial evaluation, an orientation and mobility evaluation conducted by a person who is appropriately certified as an orientation and mobility specialist. The evaluation must be conducted in a variety of lighting conditions and in a variety of settings, including in the student's home, school, and community, and in settings unfamiliar to the student.

(B) A person who is appropriately certified as an orientation and mobility specialist must participate in any reevaluation as part of the multidisciplinary team, in accordance with 34 CFR, §§300.122 and 300.303-300.311, in evaluating data used to make the determination of the student's need for specially designed instruction.

(C) A person who is appropriately certified as an orientation and mobility specialist must participate, as part of a multidisciplinary team, in accordance with 34 CFR, §§300.122 and 300.303-300.311, in evaluating data used in making the determination of the student's eligibility as a student with a visual impairment.

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

Statutory Authority: The provisions of this §89.1040 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1040 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1047. Procedures for Special Education Decision-Making for Students in Foster Care.

(a) A foster parent may act as a parent of a child with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.30, relating to the definition of parent, if requirements of Texas Education Code (TEC), §29.015(a), are met, including the completion of the training program described in subsection (c)(1) of this section.

(1) For a foster parent to serve as a student's parent, a school district must ensure that the foster parent has received training described in subsection (c)(1) of this section. The foster parent must complete the training program before the student's next scheduled admission, review, and dismissal (ARD) committee meeting, but not later than the 90th day after the foster parent begins acting as the parent for the purpose of making special education decisions.

(2) The training program can be conducted or provided by the Texas Department of Family and Protective Services (TDFPS), 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. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the parent or the surrogate parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(b) If a school district denies a foster parent the right to serve as a 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 must:

(1) specifically explain why the foster parent is being denied the right to serve as the student's parent; and

(2) inform the foster parent of his or her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.151-300.153, relating to special education complaint procedures.

(c) Except as provided by Texas Family Code, §263.0025, which authorizes a court to appoint a surrogate parent, if a district cannot locate or identify a parent, if the foster parent is unwilling or unable to serve as a parent, or if the student does not reside in a foster home setting, the school district must assign a surrogate parent to make special education decisions on behalf of the student. An individual assigned by a school district to act as a surrogate parent for a student with a disability, in accordance with 34 CFR, §300.519, and TEC, §29.0151, relating to surrogate parents, must comply with the requirements specified in TEC, §29.001(10).

(1) Pursuant to TEC, §29.001(10)(A), a foster parent serving as a parent or an individual assigned by a school district 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 ARD committee process;

(D) the development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 14 years of age;

(E) the determination of least restrictive environment;

(F) the implementation of an IEP;

(G) the procedural rights and safeguards available under 34 CFR, §§300.148, 300.151-300.153, 300.229, 300.300, 300.500-300.520, 300.530-300.537, and 300.610-300.627, relating to the issues described in 34 CFR, §300.504(c);

(H) where to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities; and

(I) the duties and responsibilities of surrogate parents as required under TEC, §29.0151(d).

(2) The training program described in subsection (c)(1) of this section must be provided in the native language or other mode of communication used by the individual being trained.

(3) To serve as a student's surrogate parent, a school district must ensure that the surrogate parent has received training described in subsection (c)(1) of this section. The individual assigned by a school district to act as a surrogate parent must complete the training program before the student's next scheduled ARD committee meeting but not later than the 90th day after the date of initial assignment as a surrogate parent.

(4) The training program can be conducted or provided by the TDFPS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the surrogate parent or the parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(d) A surrogate parent appointed by a school district may not be an employee of the Texas Education Agency, the school district, or any other agency involved in the education or care of the child and may not have any interest that conflicts with the interests of the child. Each school district or shared services arrangement must develop and implement procedures for conducting an analysis of whether a potential surrogate parent has an interest that conflicts with the interests of his or her child. 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 TDFPS.

(e) If a court appoints a surrogate parent for a child with a disability under Texas Family Code, §263.0025, and the school district determines that the surrogate parent is failing to perform or is not properly performing the duties listed under TEC, §29.0151(d), the district must consult with TDFPS and appoint another person to serve as the surrogate parent for the child.

Statutory Authority: The provisions of this §89.1047 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1047 adopted to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1049. Parental Rights Regarding Adult Students.

(a) In accordance with 34 Code of Federal Regulations (CFR), §300.320(c) and §300.520, 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. Beginning with the 2018-2019 school year, the IEP must also state that the student has been provided information and resources regarding guardianship, alternatives to guardianship, including a supported decision-making agreement under Texas Estates Code, Chapter 1357, and other supports and services that may enable the student to live independently. 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, §300.520(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 Texas Estates Code, Title 3.

(c) In accordance with 34 CFR, §300.520(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. Beginning with the 2018-2019 school year, the notice must also include information and resources regarding guardianship, alternatives to guardianship, including a supported decision-making agreement under Texas Estates Code, Chapter 1357, and other supports and services that may enable the student to live independently, and must provide contact information for the parties to use in obtaining additional information.

(d) A notice under IDEA, Part B, which 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, §300.321(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 supported decision-making agreement or a valid power of attorney from being executed by an individual who holds rights under IDEA, Part B.

Statutory Authority: The provisions of this §89.1049 issued under the Texas Education Code, §29.001 and §29.017, and 34 Code of Federal Regulations, §§300.320, 300.321, and 300.520.

Source: The provisions of this §89.1049 adopted to be effective April 18, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective February 15, 2018, 43 TexReg 763.

§89.1050. The Admission, Review, and Dismissal Committee.

(a) Each school district must establish an admission, review, and dismissal (ARD) committee for each eligible student with a disability and for each student for whom a full individual and initial evaluation is conducted pursuant to §89.1011 of this title (relating to Full Individual and Initial Evaluation). The ARD committee is the individualized education program (IEP) team defined in federal law and regulations, including, specifically, 34 Code of Federal Regulations (CFR), §300.321. The school district is 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 the following:

(1) 34 CFR, §§300.320-300.325, and Texas Education Code (TEC), §29.005 (individualized education programs);

(2) 34 CFR, §§300.145-300.147 (relating to placement of eligible students in private schools by a school district);

(3) 34 CFR, §§300.132, 300.138, and 300.139 (relating to the development and implementation of service plans for eligible students placed by parents in private school who have been designated to receive special education and related services);

(4) 34 CFR, §300.530 and §300.531, and TEC, §37.004 (disciplinary placement of students with disabilities);

(5) 34 CFR, §§300.302-300.306 (relating to evaluations, re-evaluations, and determination of eligibility);

(6) 34 CFR, §§300.114-300.117 (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, §28.0212 (Junior High or Middle School Personal Graduation Plan);

(10) TEC, §28.0213 (Intensive Program of Instruction);

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

(12) TEC, §30.002 (Education for Children with Visual Impairments);

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

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

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

(16) TEC, §48.102 (Special Education).

(b) For a student 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, §§300.320-300.324, and the memorandum of understanding between the Texas Education Agency and the Texas Health and Human Services Commission. For students three years of age and older, school districts must develop an IEP.

(c) ARD committee membership.

(1) ARD committees must include the following:

(A) the parents of the student;

(B) not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education environment) who must, to the extent practicable, be a teacher who is responsible for implementing a portion of the student's IEP;

(C) not less than one special education teacher of the student, or where appropriate, not less than one special education provider of the student;

(D) a representative of the school district who:

(i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of students with disabilities;

(ii) is knowledgeable about the general education curriculum; and

(iii) is knowledgeable about the availability of resources of the school district;

(E) an individual who can interpret the instructional implications of evaluation results, who may be a member of the committee described in subparagraphs (B)-(D) and (F) of this paragraph;

(F) at the discretion of the parent or the school district, other individuals who have knowledge or special expertise regarding the student, including related services personnel, as appropriate;

(G) whenever appropriate, the student with a disability;

(H) to the extent appropriate, with the consent of the parents or a student who has reached the age of majority, a representative of any participating agency that is likely to be responsible for providing or paying for transition services;

(I) a representative from career and technical education (CTE), preferably the teacher, when considering initial or continued placement of a student in CTE; and

(J) a professional staff member who is on the language proficiency assessment committee who may be a member of the committee described in subparagraphs (B) and (C) of this paragraph, if the student is identified as an English language learner.

(2) The special education teacher or special education provider that participates in the ARD committee meeting must be appropriately certified or licensed as required by 34 CFR, §300.18 and §300.156.

(3) If the student is:

(A) a student with a suspected or documented visual impairment, the ARD committee must include a teacher who is certified in the education of students with visual impairments;

(B) a student with a suspected or documented auditory impairment, the ARD committee must include a teacher who is certified in the education of students with auditory impairments; or

(C) a student with suspected or documented deaf-blindness, the ARD committee must include a teacher who is certified in the education of students with visual impairments and a teacher who is certified in the education of students with auditory impairments.

(4) An ARD committee member is not required to attend an ARD committee meeting if the conditions of either 34 CFR, §300.321(e)(1), regarding attendance, or 34 CFR, §300.321(e)(2), regarding excusal, have been met.

(d) The school district must take steps to ensure that one or both parents are present at each ARD committee meeting or are afforded the opportunity to participate, including notifying the parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed upon time and place. Additionally, a school district must allow parents who cannot attend an ARD committee meeting to participate in the meeting through other methods such as through telephone calls or video conferencing. The school district must provide the parents with written notice of the ARD committee meeting that meets the requirements in 34 CFR, §300.322, at least five school days before the meeting unless the parents agree to a shorter timeframe.

(e) Upon receipt of a written request for an ARD committee meeting from a parent, the school district must:

(1) schedule and convene a meeting in accordance with the procedures in subsection (d) of this section; or

(2) within five school days, provide the parent with written notice explaining why the district refuses to convene a meeting.

(f) If the parent is unable to speak English, the school district must provide the parent with a written notice required under subsection (d) or (e)(2) of this section in the parent's native language, unless it is clearly not feasible to do so. If the parent's native language is not a written language, the school district must take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication so that the parent understands the content of the notice.

(g) All members of the ARD committee must have the opportunity to participate in a collaborative manner in developing the IEP. A decision of the ARD committee concerning required elements of the IEP must be made by mutual agreement if possible. The ARD 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 parent who disagrees must be offered a single opportunity to recess and reconvene the ARD committee meeting. The period of time for reconvening the ARD committee meeting must not exceed ten school days, unless the parties mutually agree otherwise. The ARD committee must schedule the reconvened meeting at a mutually agreed upon time and place. The opportunity to recess and reconvene 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 that may lead to a placement in a disciplinary alternative education program. The requirements of this subsection do not prohibit the ARD committee from recessing an ARD committee meeting for reasons other than the failure to reach mutual agreement about all required elements of an IEP.

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

(3) If a recess is implemented as provided in paragraph (1) of this subsection and the ARD committee still cannot reach mutual agreement, the school district must implement the IEP that it has determined to be appropriate for the student.

(4) Each member of the ARD committee who disagrees with the IEP developed by the ARD committee is entitled to include a statement of disagreement in the IEP.

(h) Whenever a school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education to the student, the school district must provide prior written notice as required in 34 CFR, §300.503, including providing the notice in the parent's native language or other mode of communication. This notice must be provided to the parent at least five school days before the school district proposes or refuses the action unless the parent agrees to a shorter timeframe.

(i) If the student's parent is unable to speak English and the parent's native language is Spanish, the school district must provide a written copy or audio recording of the student's IEP translated into Spanish. If the student's parent is unable to speak English and the parent's native language is a language other than Spanish, the school district must make a good faith effort to provide a written copy or audio recording of the student's IEP translated into the parent's native language.

(1) For purposes of this subsection, a written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

(2) For purposes of this subsection, an audio recording of the student's IEP translated into Spanish or the parent's native language means that all of the content in the student's IEP in English is orally translated into the target language and recorded with an audio device. A school district is not prohibited from providing the parent with an audio recording of an ARD committee meeting at which the parent was assisted by an interpreter as long as the audio recording provided to the parent contains an oral translation into the target language of all of the content in the student's IEP in English.

(3) If a parent's native language is not a written language, the school district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

(4) Under 34 CFR, §300.322(f), a school district must give a parent a written copy of the student's IEP at no cost to the parent. A school district meets this requirement by providing a parent with a written copy of the student's IEP in English or by providing a parent with a written translation of the student's IEP in the parent's native language in accordance with paragraph (1) of this subsection.

(j) A school district must comply with the following for a student who is newly enrolled in the school district.

(1) When a student transfers to a new school district within the state in the same school year 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, the new school district must meet the requirements of 34 CFR, §300.323(e), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(e)(1) or (2), is 30 school days from the date the student is verified as being a student eligible for special education services.

(2) When a student transfers from a school district in another state in the same school year 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, the new school district must meet the requirements of 34 CFR, §300.323(f), regarding the provision of special education services. If the new school district determines that an evaluation is necessary, the evaluation is considered a full individual and initial evaluation and must be completed within the timelines established by §89.1011(c) and (e) of this title. The timeline for completing the requirements in 34 CFR, §300.323(f)(2), if appropriate, is 30 calendar days from the date of the completion of the evaluation report. If the school district determines that an evaluation is not necessary, the timeline for completing the requirements outlined in 34 CFR, §300.323(f)(2), is 30 school days from the date the student is verified as being a student eligible for special education services.

(3) In accordance with TEC, §25.002, and 34 CFR, §300.323(g), the school district in which the student was previously enrolled must furnish the new school district with a copy of the student's records, including the student's special education records, not later than the 10th working day after the date a request for the information is received by the previous school district.

(k) All disciplinary actions regarding students with disabilities must be determined in accordance with 34 CFR, §§300.101(a) and 300.530-300.536; TEC, Chapter 37, Subchapter A; and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out).

Statutory Authority: The provisions of this §89.1050 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective March 22, 2017, 42 TexReg 1247; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1052. Discretionary Placements in Juvenile Justice Alternative Education Programs.

(a) This section applies only to the expulsion of a student with a disability under:

(1) Texas Education Code (TEC), §37.007(b), (c), or (f); or

(2) TEC, §37.007(d), as a result of conduct that contains the elements of any offense listed in TEC, §37.007(b)(2)(C), against any employee or volunteer in retaliation for or as a result of the person's employment or association with a school district.

(b) In a county with a Juvenile Justice Alternative Education Program (JJAEP), a local school district must invite the administrator of the JJAEP or the administrator's designee to an admission, review, and dismissal (ARD) committee meeting convened to discuss the expulsion of a student with a disability under one of the provisions listed in subsection (a) of this section, relating to offenses for which a school district may expel a student. The school district must provide written notice of the meeting at least five school days before the meeting or a shorter timeframe agreed to by the student's parents. A copy of the student's current individualized education program (IEP) must be provided to the JJAEP representative 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) For a student with a disability who was expelled under one of the provisions listed in subsection (a) of this section and placed in the JJAEP, an ARD committee meeting must be convened to reconsider placement of the student in the JJAEP if the JJAEP provides written notice to the school district of specific concerns that the student's educational or behavioral needs cannot be met in the JJAEP. The school district must invite the JJAEP administrator or the administrator's designee to the meeting and must provide written notice of the meeting at least five school days before the meeting or a shorter timeframe agreed to by the student's parents. 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.

Statutory Authority: The provisions of this §89.1052 issued under the Texas Education Code, §§29.001, 37.004, 37.0061, 37.062, 37.007, 37.0081, 37.011, 37.012, and 37.013.

Source: The provisions of the §89.1052 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 16, 2003; 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective December 2, 2015, 40 TexReg 8642.

§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), §300.324(a)(2)(i), 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 with dignity and respect all students, including students with disabilities who receive special education services under TEC, Chapter 29, Subchapter A.

(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 significantly 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 exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(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 must be limited to the use of such reasonable force as is necessary to address the emergency.

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

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

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

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

(1) 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) 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 must 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 must 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 must 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 admission, review, and dismissal (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 must 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. The provisions adopted under this section do not apply to the use of physical force or a mechanical device that does not significantly restrict the free movement of all or a portion of the student's body. Restraint that involves significant restriction as referenced in subsection (b)(2) of this section does not include:

(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, redirect attention, provide guidance to a location, or provide comfort;

(3) limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the individualized education program (IEP) as required by 34 CFR, §300.324(a)(2)(i) to promote student learning and reduce and/or prevent the need for ongoing intervention; 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 must 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 IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior.

(3) Use of time-out must 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 must be provided according to the following requirements.

(1) 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) 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 must 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 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 reporting. With the exception of actions covered by subsection (f) of this section, data regarding the use of restraint must be electronically reported to the Texas Education Agency (TEA) in accordance with reporting standards specified by the TEA.

(l) Peace officers. The provisions adopted under this section apply to a peace officer only if the peace officer is employed or commissioned by the school district or provides, as a school resource officer, a regular police presence on a school district campus under a memorandum of understanding between the school district and a local law enforcement agency, except that the data reporting requirements in subsection (k) of this section apply to the use of restraint by any peace officer performing law enforcement duties on school property or during a school-sponsored or school-related activity.

(m) The provisions adopted under this section do not apply to:

(1) juvenile probation, detention, or corrections personnel; or

(2) an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

Statutory Authority: The provisions of this §89.1053 issued under the Texas Education Code, §29.001 and §37.0021.

Source: The provisions of the §89.1053 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446.

§89.1055. Content of the Individualized Education Program.

(a) The individualized education program (IEP) developed by the admission, review, and dismissal (ARD) committee for each student with a disability must comply with the requirements of 34 Code of Federal Regulations (CFR), §300.320 and §300.324.

(b) The IEP must include a statement of any individual appropriate and allowable accommodations in the administration of assessment instruments developed in accordance with Texas Education Code (TEC), §39.023(a)-(c), or districtwide assessments of student achievement (if the district administers such optional assessments) that are necessary to measure the academic achievement and functional performance of the student on the assessments. If the ARD committee determines that the student will not participate in a general statewide or districtwide assessment of student achievement (or part of an assessment), the IEP must include a statement explaining:

(1) why the student cannot participate in the general assessment; and

(2) why the particular alternate assessment selected is appropriate for the student.

(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), then the IEP must identify which of the goals and objectives in the IEP will be addressed during ESY services.

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

(e) For students eligible under §89.1040(c)(1) of this title (relating to Eligibility Criteria), the strategies described in this subsection must be considered, based on peer-reviewed, research-based educational programming practices to the extent practicable and, when needed, addressed in the IEP:

(1) extended educational programming (for example: extended day and/or extended school year services that consider the duration of programs/settings based on assessment of behavior, social skills, communication, academics, and self-help skills);

(2) daily schedules reflecting minimal unstructured time and active engagement in learning activities (for example: lunch, snack, and recess periods that provide flexibility within routines; adapt to individual skill levels; and assist with schedule changes, such as changes involving substitute teachers and pep rallies);

(3) in-home and community-based training or viable alternatives that assist the student with acquisition of social/behavioral skills (for example: strategies that facilitate maintenance and generalization of such skills from home to school, school to home, home to community, and school to community);

(4) positive behavior support strategies based on relevant information, for example:

(A) antecedent manipulation, replacement behaviors, reinforcement strategies, and data-based decisions; and

(B) a behavioral intervention plan developed from a functional behavioral assessment that uses current data related to target behaviors and addresses behavioral programming across home, school, and community-based settings;

(5) beginning at any age, consistent with subsection (h) of this section, futures planning for integrated living, work, community, and educational environments that considers skills necessary to function in current and post-secondary environments;

(6) parent/family training and support, provided by qualified personnel with experience in Autism Spectrum Disorders (ASD), that, for example:

(A) provides a family with skills necessary for a student to succeed in the home/community setting;

(B) includes information regarding resources (for example: parent support groups, workshops, videos, conferences, and materials designed to increase parent knowledge of specific teaching/management techniques related to the student's curriculum); and

(C) facilitates parental carryover of in-home training (for example: strategies for behavior management and developing structured home environments and/or communication training so that parents are active participants in promoting the continuity of interventions across all settings);

(7) suitable staff-to-student ratio appropriate to identified activities and as needed to achieve social/behavioral progress based on the student's developmental and learning level (acquisition, fluency, maintenance, generalization) that encourages work towards individual independence as determined by, for example:

(A) adaptive behavior evaluation results;

(B) behavioral accommodation needs across settings; and

(C) transitions within the school day;

(8) communication interventions, including language forms and functions that enhance effective communication across settings (for example: augmentative, incidental, and naturalistic teaching);

(9) social skills supports and strategies based on social skills assessment/curriculum and provided across settings (for example: trained peer facilitators (e.g., circle of friends), video modeling, social stories, and role playing);

(10) professional educator/staff support (for example: training provided to personnel who work with the student to assure the correct implementation of techniques and strategies described in the IEP); and

(11) teaching strategies based on peer reviewed, research-based practices for students with ASD (for example: those associated with discrete-trial training, visual supports, applied behavior analysis, structured learning, augmentative communication, or social skills training).

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

(g) If the ARD committee determines that a behavior improvement plan or a behavioral intervention plan is appropriate for a student, that plan must be included as part of the student's IEP and provided to each teacher with responsibility for educating the student.

(h) Not later than when a student reaches 14 years of age, the ARD committee must consider and, if appropriate, address the following issues in the IEP:

(1) appropriate student involvement in the student's transition to life outside the public school system;

(2) if the student is younger than 18 years of age, appropriate involvement in the student's transition by the student's parents and other persons invited to participate by:

(A) the student's parents; or

(B) the school district in which the student is enrolled;

(3) if the student is at least 18 years of age, involvement in the student's transition and future by the student's parents and other persons, if the parent or other person:

(A) is invited to participate by the student or the school district in which the student is enrolled; or

(B) has the student's consent to participate pursuant to a supported decision-making agreement under Texas Estates Code, Chapter 1357;

(4) appropriate postsecondary education options, including preparation for postsecondary-level coursework;

(5) an appropriate functional vocational evaluation;

(6) appropriate employment goals and objectives;

(7) if the student is at least 18 years of age, the availability of age-appropriate instructional environments, including community settings or environments that prepare the student for postsecondary education or training, competitive integrated employment, or independent living, in coordination with the student's transition goals and objectives;

(8) appropriate independent living goals and objectives;

(9) appropriate circumstances for facilitating a referral of a student or the student's parents to a governmental agency for services or public benefits, including a referral to a governmental agency to place the student on a waiting list for public benefits available to the student such as a waiver program established under the Social Security Act (42 U.S.C. Section 1396n(c)), §1915(c); and

(10) the use and availability of appropriate:

(A) supplementary aids, services, curricula, and other opportunities to assist the student in developing decision-making skills; and

(B) supports and services to foster the student's independence and self-determination, including a supported decision-making agreement under Texas Estates Code, Chapter 1357.

(i) A student's ARD committee shall annually review the issues described in subsection (h) of this section and, if necessary, update the portions of the student's IEP that address those issues.

(j) In accordance with 34 CFR, §300.320(b), beginning not later than the first IEP to be in effect when the student turns 16 years of age, or younger if determined appropriate by the ARD committee, and updated annually thereafter, the IEP must include the following:

(1) appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and

(2) the transition services, including courses of study, needed to assist the student in reaching the postsecondary goals developed under paragraph (1) of this subsection.

(k) The written statement of the IEP must document the decisions of the ARD committee with respect to issues discussed at each ARD committee meeting. The written statement must also include:

(1) the date of the meeting;

(2) the name, position, and signature of each member participating in the meeting; and

(3) an indication of whether the child's parents, the adult student, if applicable, and the administrator agreed or disagreed with the decisions of the ARD committee.

Statutory Authority: The provisions of this §89.1055 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective March 22, 2017, 42 TexReg 1247; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§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), §300.300. 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, §300.322(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.

Statutory Authority: The provisions of this §89.1056 issued under the Texas Education Code, §29.001 and §30.0015.

Source: The provisions of this §89.1056 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129.

§89.1065. Extended School Year 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), §300.106, 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 must demonstrate that in one or more critical areas addressed in the current individualized education program (IEP) goals and 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 must 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 must 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, §300.321.

(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 must 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 must 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 will 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.

Statutory Authority: The provisions of this §89.1065 issued under the Texas Education Code, §29.001 and 34 Code of Federal Regulations, §300.106.

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; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446.

§89.1070. Graduation Requirements.

(a) Graduation with a regular high school diploma under subsections (b)(1), (b)(3)(D), (f)(1), (f)(2), (f)(3), or (f)(4)(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 and entitlement to the benefits of the Foundation School Program, as provided in Texas Education Code (TEC), §48.003(a).

(b) A student entering Grade 9 in the 2014-2015 school year and thereafter who receives special education services may graduate and be awarded a regular high school diploma if the student meets one of the following conditions.

(1) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110- 117, 126-128, and 130 of this title and satisfactorily completed credit requirements for graduation under the Foundation High School Program specified in §74.12 of this title (relating to Foundation High School Program) applicable to students in general education as well as satisfactory performance as established in the TEC, Chapter 39, on the required end-of-course assessment instruments.

(2) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110-117, 126-128, and 130 of this title and satisfactorily completed credit requirements for graduation under the Foundation High School Program specified in §74.12 of this title applicable to students in general education but the student's ARD committee has determined that satisfactory performance on the required end-of-course assessment instruments is not necessary for graduation.

(3) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110-117, 126-128, and 130 of this title and satisfactorily completed credit requirements for graduation under the Foundation High School Program specified in §74.12 of this title through courses, one or more of which contain modified curriculum that is aligned to the standards applicable to students in general education, as well as satisfactory performance as established in the TEC, Chapter 39, on the required end-of course assessment instruments, unless the student's ARD committee has determined that satisfactory performance on the required end-of-course assessment instruments is not necessary for graduation. The student must also successfully complete the student's individualized education program (IEP) and meet one of the following conditions.

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

(B) Consistent with the IEP, the student has demonstrated mastery of specific employability skills and self-help skills that do not require direct ongoing educational support of the local school district.

(C) The student has access to services that 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.

(D) The student no longer meets age eligibility requirements.

(c) A student receiving special education services may earn an endorsement under §74.13 of this title (relating to Endorsements) if the student:

(1) satisfactorily completes the requirements for graduation under the Foundation High School Program specified in §74.12 of this title as well as the additional credit requirements in mathematics, science, and elective courses as specified in §74.13(e) of this title with or without modified curriculum;

(2) satisfactorily completes the courses required for the endorsement under §74.13(f) of this title without any modified curriculum or with modification of the curriculum, provided that the curriculum, as modified, is sufficiently rigorous as determined by the student's ARD committee; and

(3) performs satisfactorily as established in the TEC, Chapter 39, on the required end-of-course assessment instruments unless the student's ARD committee determines that satisfactory performance is not necessary.

(d) Notwithstanding subsection (c)(3) of this section, a student receiving special education services classified in Grade 11 or 12 who has taken each of the state assessments required by Chapter 101, Subchapter CC, of this title (relating to Commissioner's Rules Concerning Implementation of the Academic Content Areas Testing Program) or Subchapter DD of this title (relating to Commissioner's Rules Concerning Substitute Assessments for Graduation) but failed to achieve satisfactory performance on no more than two of the assessments is eligible to receive an endorsement if the student has met the requirements in subsection (c)(1) and (2) of this section.

(e) A student receiving special education services who entered Grade 9 before the 2014-2015 school year may graduate and be awarded a high school diploma under the Foundation High School Program as provided in §74.1021 of this title (relating to Transition to the Foundation High School Program), if the student's ARD committee determines that the student should take courses under that program and the student satisfies the requirements of that program. Subsections (c) and (d) of this section apply to a student transitioning to the Foundation High School Program under this subsection. As the TEC, §28.0258 and §39.025(a-2), modify the state assessment requirements applicable to students in general education, a student receiving special education services who is classified in Grade 11 or 12 who has taken each of the state assessments required by Chapter 101, Subchapter CC, of this title (relating to Commissioner's Rules Concerning Implementation of the Academic Content Areas Testing Program) or Subchapter DD of this title (relating to Commissioner's Rules Concerning Substitute Assessments for Graduation) but failed to achieve satisfactory performance on no more than two of the assessments may graduate if the student has satisfied all other applicable graduation requirements.

(f) A student receiving special education services who entered Grade 9 before the 2014-2015 school year may graduate and be awarded a regular high school diploma if the student meets one of the following conditions.

(1) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110- 117, 126-128, and 130 of this title and satisfactorily completed credit requirements for graduation (under the recommended or distinguished achievement high school programs in Chapter 74, Subchapter F, of this title (relating to Graduation Requirements, Beginning with School Year 2007-2008) or Chapter 74, Subchapter G, of this title (relating to Graduation Requirements, Beginning with School Year 2012-2013)), as applicable, including satisfactory performance as established in the TEC, Chapter 39, on the required state assessments.

(2) Notwithstanding paragraph (1) of this subsection, as the TEC, §28.0258 and §39.025(a-2), modify the state assessment requirements applicable to students in general education, a student receiving special education services who is classified in Grade 11 or 12 may graduate under the recommended or distinguished achievement high school program, as applicable, if the student has taken each of the state assessments required by Chapter 101, Subchapter CC, of this title (relating to Commissioner's Rules Concerning Implementation of the Academic Content Areas Testing Program) or Subchapter DD of this title (relating to Commissioner's Rules Concerning Substitute Assessments for Graduation) but failed to achieve satisfactory performance on no more than two of the assessments and has met all other applicable graduation requirements in paragraph (1) of this subsection.

(3) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110- 117, 126-128, and 130 of this title and satisfactorily completed credit requirements for graduation (under the minimum high school program in Chapter 74, Subchapter F or G, of this title), as applicable, including participation in required state assessments. The student's ARD committee will determine whether satisfactory performance on the required state assessments is necessary for graduation.

(4) The student has demonstrated mastery of the required state standards (or district standards if greater) in Chapters 110- 117, 126-128, and 130 of this title through courses, one or more of which contain modified content that is aligned to the standards required under the minimum high school program in Chapter 74, Subchapter F or G, of this title, as applicable, as well as the satisfactorily completed credit requirements under the minimum high school program, including participation in required state assessments. The student's ARD committee will determine whether satisfactory performance on the required state assessments is necessary for graduation. The student graduating under this subsection must also successfully complete the student's IEP and meet one of the following conditions.

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

(B) Consistent with the IEP, the student has demonstrated mastery of specific employability skills and self-help skills that do not require direct ongoing educational support of the local school district.

(C) The student has access to services that 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.

(D) The student no longer meets age eligibility requirements.

(g) All students graduating under this section must be provided with a summary of academic achievement and functional performance as described in 34 Code of Federal Regulations (CFR), §300.305(e)(3). This summary must consider, as appropriate, the views of the parent and student and written recommendations from adult service agencies on how to assist the student in meeting postsecondary goals. An evaluation as required by 34 CFR, §300.305(e)(1), must be included as part of the summary for a student graduating under subsections (b)(3)(A), (B), or (C) or (f)(4)(A), (B), or (C) of this section.

(h) Students who participate in graduation ceremonies but who are not graduating under subsections (b)(3)(A), (B), or (C) or (f)(4)(A), (B), or (C) of this section and who will remain in school to complete their education do not have to be evaluated in accordance with subsection (h) of this section.

(i) Employability and self-help skills referenced under subsections (b)(3) and (f)(4) of this section are those skills directly related to the preparation of students for employment, including general skills necessary to obtain or retain employment.

(j) For students who receive a diploma according to subsections (b)(2); (b)(3) (A), (B), or (C); or (f)(4)(A), (B), or (C) of this section, the ARD committee must 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.

(k) For purposes of this section, modified curriculum and modified content refer to any reduction of the amount or complexity of the required knowledge and skills in Chapters 110- 117, 126-128, and 130 of this title. Substitutions that are specifically authorized in statute or rule must not be considered modified curriculum or modified content.

Statutory Authority: The provisions of this §89.1070 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective August 22, 2011, 36 TexReg 413; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective September 16, 2015, 40 TexReg 6107; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1075. General Program Requirements and Local District Procedures.

(a) Each school district must 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 must be written procedures as required in the Texas Education Code (TEC), §30.002(c)(10).

(c) Each school district must ensure that each teacher who provides instruction to a student with disabilities:

(1) has access to relevant sections of the student's current IEP;

(2) is informed of the teacher's specific responsibilities related to implementation of the IEP, such as goals and objectives, and of needed accommodations, modifications, and supports for the student; and

(3) has an opportunity to request assistance regarding implementation of the student's IEP.

(d) Each school district must develop a process to be used by a teacher who instructs a student with a disability in a regular classroom setting:

(1) to request a review of the student's IEP;

(2) to provide input in the development of the student's IEP;

(3) that provides for a timely district response to the teacher's request; and

(4) that provides for notification to the student's parent or legal guardian of that response.

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

(f) School districts that contract for services from non-public day schools must do so in accordance with 34 Code of Federal Regulations, §300.147, and §89.1094 of this title (relating to Students Receiving Special Education and Related Services in an Off-Campus Program).

Statutory Authority: The provisions of this §89.1075 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1076. Interventions and Sanctions.

The Texas Education Agency (TEA) must establish and implement a system of interventions and sanctions, in accordance with the Individuals with Disabilities Education Act, 20 United States Code, §§1400 et seq., Texas Education Code (TEC), §29.010, and TEC, Chapter 39, as necessary to ensure program effectiveness and compliance with federal and state requirements regarding the implementation of special education and related services. In accordance with TEC, §39.102, 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 program or compliance requirements;

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

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

(4) required technical assistance, paid for by the district;

(5) public release of program or 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, conservator, 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;

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

(12) other authorized interventions and sanctions as determined by the commissioner.

Statutory Authority: The provisions of this §89.1076 issued under the Texas Education Code, §§29.001, 29.010, 39.102, 39.103, 39.104, 39.107, 39.108, 39.109, 39.110, 39.111, 39.112, 39.113, and 39.152, and 34 Code of Federal Regulations, §300.600.

Source: The provisions of this §89.1076 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446.

§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.

Statutory Authority: The provisions of this §89.1080 issued under the Texas Education Code, §§29.001, 30.081, 30.082, 30.083, 30.084, 30.085, 30.086, and 30.087.

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, §§1400, 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 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, §§1400, 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.

Statutory Authority: The provisions of this §89.1085 issued under the Texas Education Code, §§29.001, 30.021, 30.051, and 30.057, and 34 Code of Federal Regulations, §§300.101, 300.114, and 300.116.

Source: The provisions of this §89.1085 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129.

§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 and the Texas School for the Deaf, 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.

Statutory Authority: The provisions of this §89.1090 issued under the Texas Education Code, §29.001 and §30.087.

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; amended to be effective November 11, 2007, 32 TexReg 8129.

§89.1092. Contracting for Residential Educational Placements for Students with Disabilities.

(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.

Statutory Authority: The provisions of this §89.1092 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

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

§89.1094. Students Receiving Special Education and Related Services in an Off-Campus Program.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) School district--The definition of a school district includes independent school districts established under Texas Education Code (TEC), Chapter 11, Subchapters A-F, and open-enrollment charter schools established under TEC, Chapter 12, Subchapter D.

(2) Off-campus program--An off-campus program includes special education and related services provided during school hours by someone other than school district personnel in a facility other than a school district campus.

(3) Off-campus program provider--An off-campus program provider is an entity that provides the services identified in subsection (a)(2) of this section and includes:

(A) a county system operating under application of former law as provided in TEC, §11.301;

(B) a regional education service center established under TEC, Chapter 8;

(C) a nonpublic day school; or

(D) any other public or private entity with which a school district enters into a contract under TEC, §11.157(a), for the provision of special education services in a facility other than a school district campus operated by a school district.

(b) Off-campus program placement. A school district may contract with an off-campus program provider to provide some or all of the special education and related services to a student in accordance with the requirements in this section.

(1) Before the school district places a student with a disability in, or refers a student to, an off-campus program, the district shall initiate and conduct an onsite review to ensure that the off-campus program is appropriate for meeting the student's educational needs.

(2) Before the school district places a student with a disability in, or refers a student to, an off-campus program, the district shall initiate and conduct a meeting of the student's admission, review, and dismissal (ARD) committee to develop an individualized education program (IEP) for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner of education rules in Chapter 89 of this title (relating to Commissioner's Rules Concerning Special Education Services).

(3) The appropriateness of the off-campus program for each student placed shall be documented in the IEP annually. The student's ARD committee may only recommend an off-campus program placement for a student if the committee determines that the nature and severity of the student's disability and special education needs are such that the student cannot be satisfactorily educated in the school district.

(A) The student's IEP must list which services the school district is unable to provide and which services the facility will provide.

(B) At the time the ARD committee determines placement, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school and document this information in the IEP.

(C) The school district shall make two on-site visits annually, one announced and one unannounced, to:

(i) verify that the off-campus program can, and will, provide the services listed in the student's IEP that the off-campus program has agreed to provide to the student;

(ii) obtain written verification that the facility meets minimum standards for health and safety and holds applicable local and state accreditation and permit requirements; and

(iii) verify the educational program provided at the off-campus program facility is the least restrictive environment for the student.

(4) The placement of more than one student in the same off-campus program facility may be considered in the same on-site visit to a facility. However, the IEP of each student must be individually reviewed, and a determination of appropriateness of placement and services must be made for each student.

(c) Notification. Within 30 calendar days from an ARD committee's decision to place or continue the placement of a student in an off-campus 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 the TEA.

(1) If the off-campus program is on the commissioner's list of approved off-campus programs, the 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, the TEA will notify the school district whether federal or state funds for the off-campus program placement are approved. If the TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.

(2) If the off-campus program is not on the commissioner's list of approved off-campus programs, the TEA will begin the approval procedures described in subsection (d) 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 an off-campus program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify the TEA of the order within 30 calendar days. The off-campus program serving the student is not required to go through the approval procedures described in subsection (d) of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the off-campus program, the off-campus program will be required to go through the approval procedures to be included on the commissioner's list of approved off-campus programs.

(d) Approval of the off-campus program. Off-campus programs must have their educational programs approved for contracting purposes by the commissioner.

(1) For a program to be approved, the school district must electronically submit to the TEA notice of, and information regarding, the placement in accordance with submission procedures specified by the TEA. The TEA shall begin approval procedures and conduct an on-site visit to the facility within 30 calendar days after the TEA has been notified by the school district. Initial approval of the off-campus program shall be for one calendar year.

(2) The off-campus program may be approved only after, at minimum, a programmatic evaluation of personnel qualifications, adequacy of physical plant and equipment, and curriculum content.

(3) The commissioner shall renew approvals and issue new approvals only for those facilities that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. This approval does not apply to facilities that only provide related services. Nor does it apply to facilities when the school district, within which the facility is located, provides the educational program. Re-approval of the off-campus program may be for one, two, or three years at the TEA's discretion.

(e) Funding procedures and other requirements. The cost of off-campus program placements will be funded according to TEC, §48.102 (Special Education), and §89.1005(e) of this title (relating to Instructional Arrangements and Settings).

(1) Contracts between school districts and approved off-campus programs must not exceed a school district's fiscal year and shall not begin prior to July 1 of the contracted fiscal year.

(2) Amendments to a contract must be electronically submitted to the TEA in accordance with submission procedures specified by the TEA no later than 30 calendar days from the change in placement or services within the school district's fiscal year.

(3) If a student who is placed in an off-campus program by a school district changes his or her residence to another Texas school district during the school year, the school district must notify the TEA within 10 calendar days of the date on which the school district ceased contracting with the off-campus program for the student's placement. The student's new school district must meet the requirements of 34 CFR, §300.323(e), by providing comparable services to those described in the student's IEP from the previous school district until the new school district either adopts the student's IEP from the previous school district or develops, adopts, and implements a new IEP. The new school district must comply with all procedures described in this section for continued or new off-campus program placement.

Statutory Authority: The provisions of this §89.1094 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1094 adopted to be effective November 10, 2019, 44 TexReg 6876; amended to be effective March 14, 2021, 46 TexReg 1466.

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

(a) Except as specifically provided in this section, in accordance with 34 Code of Federal Regulations (CFR), §300.137, 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, §§300.130-300.144.

(1) For purposes of subsections (a) and (d) of this section only, private school is defined as a private elementary or secondary school, including any pre-school, religious school, and institutional day or residential school, that:

(A) as required by 34 CFR, §300.13 and §300.130, is a nonprofit entity that meets the definition of nonprofit in 34 CFR, §77.1; and

(B) provides elementary or secondary education that incorporates an adopted curriculum designed to meet basic educational goals, including scope and sequence of courses, and formal review and documentation of student progress.

(2) A home school must meet the requirements of paragraph (1)(B) of this subsection, but not paragraph (1)(A) of this subsection, to be considered a private school for purposes of subsections (a) and (d) of this section.

(b) 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, §§300.130-300.144, or subsection (e) of this section, until such time as the parents choose to enroll the student in public school full time.

(c) 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 or until the student is eligible to attend a district's public school kindergarten program, whichever comes first, subject to paragraphs (1)-(3) of this subsection. The public school district where a student resides is responsible for providing special education and related services to a student whose parents choose dual enrollment.

(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, §§300.114-300.120, 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.

(d) Parents of an eligible student ages 3 or 4 who decline dual enrollment for their student may request a services plan as described in 34 CFR, §§300.130-300.144. The public school district where the private school is located is responsible for the development of a services plan, if the student is designated to receive services under 34 CFR, §300.132.

(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 (c) of this section may be filed with the Texas Education Agency under the procedures in 34 CFR, §§300.151-300.153. Additionally, parents may request mediation as outlined in 34 CFR, §300.506. The procedures in 34 CFR, §§300.300, 300.504, 300.507, 300.508, and 300.510-300.518 (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 (c).

Statutory Authority: The provisions of this §89.1096 issued under 34 Code of Federal Regulations, §§300.129, 300.130, 300.131, 300.132, 300.133, 300.134, 300.135, 300.136, 300.137, 300.138, 300.139, 300.140, 300.141, 300.142, 300.143, and 300.144.

Source: The provisions of this §89.1096 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129.

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.

Statutory Authority: The provisions of this §89.1100 issued under the Texas Education Code, §29.001, and the Texas Human Resources Code, §22.011.

Source: The provisions of this §89.1100 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 Facilities.

(a) Parties. The state agencies named in this subsection are parties to this memorandum of understanding (MOU) and will be collectively referred to as the "parties." The term "Health and Human Service (HHS) agencies" will refer to all parties except the Texas Education Agency, Texas Juvenile Probation Commission, and Texas Youth Commission.

(1) Texas Education Agency (TEA);

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

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

(4) Texas Department of Health (TDH);

(5) Texas Department of Protective and Regulatory Services (PRS);

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

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

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

(9) Texas Youth Commission (TYC).

(b) Purpose. In accordance with Texas Education Code (TEC),§29.012(d), the purpose of this MOU is to:

(1) establish the respective responsibilities of school districts and of residential facilities (RFs) for the provision of a free appropriate public education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA)(20 USC §1400 et seq.) and its subsequent amendments, including each requirement for children with disabilities who reside in those facilities;

(2) coordinate regulatory and planning functions of the parties;

(3) establish criteria for determining when a public school will provide educational services;

(4) provide for appropriate educational space when education services will be provided at the residential facility;

(5) establish measures designed to ensure the safety of students and teachers; and

(6) provide for binding arbitration consistent with Texas Government Code, Chapter 2009, and Civil Practice and Remedies Code, §154.027.

(c) Definitions. The following words and terms, when used in this MOU, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Consistent with TEC, §5.001(8), "residential facility" (RF) means:

(A) a facility operated by a state agency or political subdivision, including a child placement agency, that provides 24-hour custody or care of a person 22 years of age or younger, if the person resides in the facility for detention, treatment, foster care, or any non-educational purpose; and

(B) any person or entity that contracts with or is funded, licensed, certified, or regulated by a state agency or political subdivision to provide custody or care for a person under subparagraph (A) of this paragraph. RFs include, but are not limited to:

(i) child care facilities or institutions;

(ii) independent foster group homes providing basic, therapeutic or rehabilitative services;

(iii) independent foster family homes providing basic, therapeutic or rehabilitative services;

(iv) agency foster family/group homes verified by a child placing agency licensed by PRS;

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

(vi) psychiatric treatment centers;

(vii) therapeutic camps or ranches;

(viii) residential treatment centers licensed by PRS;

(ix) nursing facilities;

(x) TYC halfway houses and contract facilities;

(xi) emergency shelters;

(xii) hospitals;

(xiii) juvenile pre-adjudication detention facilities;

(xiv) juvenile post-adjudication secure correctional facilities;

(xv) residential facilities funded and/or licensed by TCADA;

(xvi) settings other than the student's natural or adoptive home in which residential services are provided in programs authorized by the Social Security Act, §1915(c); and

(xvii) state hospitals, state schools, and state centers operated by TDMHMR.

(2) "Student with a disability" means an individual who is eligible to receive special education and related services in accordance with IDEA and its implementing regulations, Code of Federal Regulations, Title 34, §§300.1 et seq., and state laws and rules, including, without limitation, TEC, Chapter 29, and Chapter 89 of this title (relating to Adaptations for Special Populations).

(3) Consistent with 20 USC §1401(8), "free appropriate public education" (FAPE) means special education and related services that:

(A) are provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of TEA;

(C) include preschool, elementary, or secondary school education; and

(D) are provided in conformity with the student's individualized education program (IEP).

(4) Consistent with 20 U. S. C. §1401(15), "local educational agency" (LEA) means any public authority, institution, or agency having administrative control and direction of a public elementary or secondary school, including a public charter school that is established as an LEA under state law.

(d) Terms of MOU. The parties agree to the following terms:

(1) The responsibilities of LEAs and RFs related to the provision of a FAPE to students with disabilities who reside in RFs are established as follows.

(A) LEAs must provide or ensure the provision of a FAPE to students with disabilities residing in RFs in accordance with IDEA, applicable federal regulations, and state laws and rules.

(i) Except as provided in paragraph (2) of this subsection, an LEA must provide or ensure the provision of a FAPE for a student with a disability residing in an RF located in the geographical area served by that LEA.

(ii) If an LEA places a student with a disability in an RF for educational purposes, the placing LEA must provide or ensure the provision of a FAPE to the student.

(B) Not later than the third day after the date a person 22 years of age or younger is placed in an RF, the RF must provide notification in accordance with TEC, §29.012(a), as follows:

(i) if the person placed in the RF is three years of age or older, the RF must notify the LEA in which the RF is located, unless the RF is an open-enrollment charter school or the RF has been designated as an LEA (e.g., TYC correctional facilities, Texas School for the Deaf, the University of Texas Medical Branch); or

(ii) if the person placed in the RF is younger than three years of age, the RF must notify a local early childhood intervention program in the area in which the RF is located.

(2) Regulatory and planning functions of the parties are coordinated as follows.

(A) The parties will require LEAs and RFs to:

(i) share, within a reasonable period of time and to the extent permitted by applicable statutes and regulations, all appropriate records and relevant information relating to a student with a disability. This subsection does not authorize the LEA to modify requirements for admission and enrollment into an LEA as set forth in TEC, Chapter 25. The records and information to be shared may include, but are not limited to:

(I) birth certificate or other identifying document that proves the student's age;

(II) medical history and medical records, including current immunization records and a history of infectious disease (e.g., Hepatitis B, tuberculosis), including a description of any behavioral characteristics related to the transmission of such disease;

(III) social history;

(IV) vision and hearing screening and evaluation;

(V) evaluation reports, including psychological, educational, related service, assistive technology and vocational evaluations, and behavioral assessments;

(VI) treatment plan of care or service;

(VII) educational history (e.g., previous educational placement information);

(VIII) any relevant court orders (e.g., orders related to placement in an RF, guardianship or conservatorship, or court-ordered services);

(IX) information regarding a student's movement from an RF to a subsequent residence, including but not limited to the date the student left the RF and the location of the student's subsequent residence; and

(X) name and phone number of contact persons representing the RF and the LEA; and

(ii) coordinate a student's individualized education program (IEP) and treatment plan of care or service. Coordination between an LEA and RF includes but is not limited to communication about responsibilities and timelines related to the development and implementation of the IEP and treatment plan, including permanency planning.

(B) TEA will require LEAs to provide:

(i) the name and phone number of the contact person representing the RF to the surrogate parent, upon assignment of the surrogate parent;

(ii) the name and phone number of the surrogate parent, upon assignment of the surrogate parent, to the contact person representing the RF; and

(iii) designation and training of surrogate parents in accordance with §89.1047 of this title (relating to Procedures for Surrogate and Foster Parents).

(C) TYC and the HHS agencies will provide the following notifications to TEA.

(i) TYC and the HHS agencies, other than PRS, will notify TEA when an RF opens, closes, expands, or reduces its capacity to provide services, if the notifying agency expects such action will have a significant effect on one or more LEAs. The notice will be provided to TEA before the RF opens, closes, expands, or reduces its capacity to provide services, or as soon thereafter as the notifying agency becomes aware of the action. If an RF is closing, the notifying TYC or HHS agency will request that the RF attempt to obtain any consent necessary to release to TEA and an LEA, information about a student with a disability residing in the RF, including the student's name, date of birth, social security number, disability, and name of the LEA to which the student will be moving. TEA will notify the affected LEA of the expected action so the LEA can adjust its capacity to serve students with disabilities.

(ii) PRS will provide TEA with a copy of the notice required by Texas Human Resources Code, §42.0461(a)(2). Additionally, PRS and TEA will explore possible use of PRS' Child Care Licensing Automation Support Services management system to generate information that may assist TEA in its effort to notify LEAs when an RF opens, closes, expands, or reduces its capacity to provide services.

(3) Criteria for determining when a public school will provide educational services are established as follows.

(A) TEA will ensure that the local school district provides a FAPE to all eligible students with disabilities, in the least restrictive environment (LRE), to the maximum extent appropriate, to meet the individual educational needs of the student as determined by a duly-constituted admission, review, and dismissal (ARD) committee, and in accordance with §89.1001 of this title (relating to Scope and Applicability).

(B) The student's ARD committee must determine the appropriate educational placement for the student, considering all available information regarding the educational needs of the student, and including the non-educational needs that may restrict the ability of the LEA to serve the student on a public school campus or other instructional setting. These non-educational needs could include the student's health and safety (e.g. substance abuse), and/or the student's placement in a restrictive RF program (e.g., juvenile incarceration or restrictive court-ordered placements). The ARD committee's determination must be individualized based on student need and not made on a categorical basis, such as the student's disability or residence in an RF. Further, ARD committees must not determine educational placement on the basis of what is most convenient to LEAs or RFs.

(4) When educational services will be provided at an RF, appropriate educational space will be determined as follows.

(A) The ARD committee must determine whether space available at the RF is appropriate for the provision of a FAPE. This determination must be based on the individual student's needs and the RF's available space.

(B) An ARD committee must find alternative locations for providing educational services if the ARD committee or RF determines that the RF has no appropriate available space.

(5) Measures designed to ensure the safety of students and teachers are established as follows.

(A) The parties will require RFs and LEAs to agree in writing to the staffing levels that will be maintained by both the RF and the LEA to ensure the safety of students and teachers while educational services are provided at an RF.

(B) TYC, TJPC, and HHS agencies will require RFs to communicate to LEA staff applicable safety, emergency, and security procedures to be followed while educational services are provided at an RF.

(6) Disputes concerning the implementation of this MOU will be resolved as follows.

(A) Local disputes. Resolution of disputes concerning implementation of this MOU between LEAs or between an LEA and an RF shall first be attempted at the local level. The specific issues involved in the dispute and possible solutions shall be identified and referred to local personnel authorized to make decisions necessary to resolve the dispute. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing entities agree otherwise), the LEA shall refer (and the RF may refer) the dispute to TEA for further negotiations toward a mutually agreeable resolution. TEA will contact the disputing entities and set up a meeting for this purpose. Local entities referring disputes to TEA shall identify:

(i) the nature of the dispute;

(ii) any resolutions agreed upon;

(iii) the issues that remain unresolved; and

(iv) the contact persons representing the disputing entities.

(B) State agency disputes. Resolution of disputes concerning implementation of this MOU between two or more parties must first be attempted at the staff level. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing parties agree otherwise), the disputing parties will refer the dispute to their respective executive officers, or their designees for further negotiation. The appropriate state officials shall meet to seek resolution of the dispute.

(i) Mediation. If the chief executive officers of the disputing parties determine that the dispute cannot be resolved at their level, the disputing parties may pursue resolution through the use of mediation pursuant to the Governmental Dispute Resolution Act, Texas Government Code, Chapter 2009.

(ii) Arbitration. If the disputing parties do not agree to pursue resolution of their dispute through mediation, or if mediation does not result in a resolution of their dispute, the disputing parties will participate in binding arbitration consistent with Texas Government Code, Chapter 2009, and Texas Civil Practice and Remedies Code, §154.027.

(7) Other terms of this MOU.

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

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

(C) 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.

Statutory Authority: The provisions of this §89.1115 issued under the Texas Education Code, §29.001 and §29.012.

Source: The provisions of this §89.1115 adopted to be effective August 6, 2002, 27 TexReg 6851.

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 must be developed by the commissioner of education and included in the student attendance accounting handbook adopted under §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook).

(b) State special education funds must 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 must 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 (ABA) or adjusted allotment (AA) 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 is divided by 30 to determine the full-time equivalents. Special education full-time equivalents generated are deducted from the school district's ADA for purposes of the regular education allotment.

(d) The receipt of special education funds is 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 Use of State Funds). 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) must be enrolled on the district home or regional day school campus and must 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 must be based on the average daily attendance of the students in the arrangement multiplied by the ABA or AA and the 1.1 weight. The attendance must not be converted to contact hours/full-time equivalents as with the other instructional arrangements.

Statutory Authority: The provisions of this §89.1121 issued under the Texas Education Code, §29.001.

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; amended to be effective January 1, 2015, 39 TexReg 10446.

§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. Funds may also be used to pay for the joint training of parents and special education, related services, and general education personnel.

Statutory Authority: The provisions of this §89.1125 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §§300.202, 300.203, 300.204, 300.205, 300.206, 300.208, and 300.705.

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; amended to be effective November 11, 2007, 32 TexReg 8129.

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 must be certified, endorsed, or licensed in the area or areas of assignment in accordance with 34 Code of Federal Regulations, §300.156; the Texas Education Code, §§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 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 students with disabilities must be assigned only to programs serving infants through Grade 6.

(3) 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.

(4) 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, or a shared services arrangement with other school districts.

(5) The following provisions apply to physical education.

(A) When the admission, review, and dismissal committee has made the determination and the arrangements are specified in the student's individualized education program, 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.

(6) Teachers assigned full-time or part-time to instruction of students from birth through age two with visual impairments, including deaf-blindness, must 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, must be certified in education for students who are deaf and severely hard of hearing.

(7) 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. Educational 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. Educational aides paid from state administrative funds may be assigned to special education clerical or administrative duties.

(d) Interpreting services for students who are deaf must 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 a certified member of or certified by the Registry of Interpreters for the Deaf (RID) or the Texas Board for Evaluation of Interpreters (BEI), Department of Assistive and Rehabilitative Services (DARS), Office for Deaf and Hard of Hearing Services (DHHS).

(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.

Statutory Authority: The provisions of this §89.1131 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.100 and §300.156.

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; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective January 1, 2015, 39 TexReg 10446.

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) §300.119.

(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 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.

Statutory Authority: The provisions of this §89.1141 issued under the Texas Education Code, §§8.001, 8.002, 8.051, 8.052, 8.053, 8.054, and 29.001, and 34 Code of Federal Regulations, §300.12.

Source: The provisions of this §89.1141 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129.

Division 7. Dispute Resolution

§89.1150. General Provisions.

(a) It is the policy and intent of the Texas Education Agency (TEA) to encourage and support the resolution of any dispute that arises between a parent and a public education agency 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 at the lowest level possible and in a prompt, efficient, and effective manner.

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

(1) meetings of the student's admission, review, and dismissal committee, including individualized education program (IEP) facilitation if offered by the public education agency in accordance with §89.1196 of this title (relating to Individualized Education Program Facilitation);

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

(3) meetings or conferences, subject to the public education agency's policies, with the campus administrator, the special education director of the public education agency (or the shared services arrangement to which the public education agency may be a member), the superintendent of the public education agency, or the board of trustees of the public education agency;

(4) requesting state IEP facilitation in accordance with §89.1197 of this title (relating to State Individualized Education Program Facilitation);

(5) requesting mediation through the TEA in accordance with 34 Code of Federal Regulations (CFR), §300.506;

(6) filing a complaint with the TEA in accordance with 34 CFR, §300.153; or

(7) requesting a due process hearing through the TEA in accordance with 34 CFR, §§300.507-300.514.

Statutory Authority: The provisions of this §89.1150 issued under the Texas Education Code, §§29.001, 29.019, and 29.020; and 34 Code of Federal Regulations, §§300.151-300.153.

Source: The provisions of this §89.1150 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective January 1, 2015, 39 TexReg 10446.

§89.1151. Special Education Due Process Hearings.

(a) A parent or public education agency may initiate a due process hearing as provided in 34 Code of Federal Regulations (CFR), §300.507 and §300.508.

(b) The Texas Education Agency will implement a one-tier system of hearings. The proceedings in hearings will be governed by the provisions of 34 CFR, §§300.507-300.515 and 300.532, if applicable, and this division.

(c) A parent or public education agency must request a hearing within one year of the date the parent or public education agency knew or should have known about the alleged action that serves as the basis for the request, unless tolled pursuant to 50 USC, §3936, as set forth in subsection (e) of this section.

(d) The timeline described in subsection (c) of this section does not apply to a parent if the parent was prevented from filing a request for a due process hearing due to:

(1) specific misrepresentations by the public education agency that it had resolved the problem forming the basis of the request for a hearing; or

(2) the public education agency's withholding of information from the parent that was required by 34 CFR, §300.1, et seq. to be provided to the parent.

(e) TEA will include in the Notice of Procedural Safeguards a statement that the statute of limitations for the parent of a student to request an impartial due process hearing under 20 USC, §1415(b), may be tolled if:

(1) the parent is an active-duty member of the armed forces, the Commissioned Corps of the National Oceanic and Atmospheric Administration, or the Commissioned Corps of the United States Public Health Service; and

(2) 50 USC, §3936, applies to the parent.

Statutory Authority: The provisions of this §89.1151 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.507 and §300.508.

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; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760; amended to be effective February 15, 2018, 43 TexReg 766.

§89.1165. Request for Special Education Due Process Hearing.

(a) A request for a due process hearing (due process complaint) must be in writing and must be filed with the Texas Education Agency (TEA) by electronic mail, mail, hand-delivery, or facsimile.

(b) The party filing a request for a hearing must forward a copy of the request to the non-filing party at the same time that the request is filed with the TEA. The timelines applicable to hearings will commence the calendar day after the non-filing party receives the request. Unless rebutted, it will be presumed that the non-filing party received the request on the date it is sent to the parties by the TEA.

(c) The request for a hearing must include:

(1) the name of the child;

(2) the address of the residence of the child;

(3) the name of the school the child is attending;

(4) in the case of a homeless child or youth (within the meaning of §725(2) of the McKinney-Vento Homeless Assistance Act (42 United States Code §11434a(2)), available contact information for the child, and the name of the school the child is attending;

(5) a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) a proposed resolution of the problem to the extent known and available to the party at the time.

(d) A party may not have a hearing until the party files a request for a hearing that meets the requirements of subsection (c) of this section.

(e) The TEA has developed a model form that may be used by parents and public education agencies to request a hearing. The form is available on request from the TEA and on the TEA website.

Statutory Authority: The provisions of this §89.1165 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1165 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1170. Impartial Hearing Officer.

(a) The Texas Education Agency (TEA) will maintain a pool of impartial hearing officers to conduct due process hearings. The TEA will assign cases to hearing officers who are private practice attorneys based on an alphabetical rotation. The TEA will assign cases to hearing officers who are employed by the State Office of Administrative Hearings (SOAH) in accordance with the procedures specified in the interagency contract between the TEA and SOAH. If, however, a request for a hearing relates to the same student who was involved in another hearing that was filed within the last 12 months, the TEA may assign the recently filed hearing request to the same hearing officer who presided over the previous hearing. In addition, the same hearing officer may be assigned to hearings involving siblings that are filed within 12 months of each other.

(b) If a hearing officer is also a mediator under §89.1193 of this title (relating to Special Education Mediation), that individual will not be assigned as hearing officer if he or she is the mediator in a pending mediation involving the same student who is the subject of the hearing or was the mediator in a previous mediation involving the student who is the subject of the hearing.

(c) A hearing officer must possess the knowledge and abilities described in 34 Code of Federal Regulations, §300.511(c), and must not be:

(1) an employee of the TEA or the public agency that is involved in the education or care of the child who is the subject of the hearing; or

(2) a person having a personal or professional interest that conflicts with the person's objectivity in the hearing.

(d) A hearing officer is not an employee of the TEA solely because the individual is paid by the TEA to serve as a hearing officer.

(e) A 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.

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

(g) A party to a hearing who has grounds to believe that the assigned hearing officer cannot afford the party a fair and impartial hearing due to bias, prejudice, or a conflict of interest may file a written request with the assigned hearing officer asking that the hearing officer recuse himself or herself from presiding over the hearing. Any such written request must state the grounds for the request and the facts upon which the request is based. Upon receipt of a request, the assigned hearing officer must review the request and determine the sufficiency of the grounds stated in the request. The hearing officer then must prepare a written order concerning the request and serve the order on the parties to the hearing within three business days of receiving the request. If the hearing officer finds that the grounds for recusal are insufficient, the TEA will assign a second hearing officer to review the request. The second hearing officer must rule on the request and serve a written order on the parties to the hearing within three business days of receiving the assignment. If the second hearing officer also determines that the grounds for recusal are insufficient, the assigned hearing officer will continue to preside over the hearing. If either the assigned hearing officer or the second hearing officer finds that the grounds for recusal are sufficient, the TEA will assign another hearing officer to preside over the remainder of the proceedings in accordance with the procedures in subsection (a) of this section.

Statutory Authority: The provisions of this §89.1170 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.511.

Source: The provisions of this §89.1170 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective February 15, 2018, 43 TexReg 766.

§89.1175. Representation in Special Education Due Process Hearings.

(a) A party to a due process hearing may represent himself or herself or be represented by:

(1) an attorney who is licensed in the State of Texas; or

(2) an individual who is not an attorney licensed in the State of Texas but who has special knowledge or training with respect to problems of children with disabilities and who satisfies the qualifications of this section.

(b) A party who wishes to be represented by an individual who is not an attorney licensed in the State of Texas must file a written authorization with the hearing officer promptly after filing the request for a due process hearing or promptly after retaining the services of the non-attorney representative. The party must forward a copy of the written authorization to the opposing party at the same time that the written authorization is filed with the hearing officer.

(c) The written authorization must be on the form provided in this subsection.
Figure: 19 TAC §89.1175(c)
(d) The written authorization must include the non-attorney representative's name and contact information and a description of the non-attorney representative's:

(1) special knowledge or training with respect to problems of children with disabilities;

(2) knowledge of the rules and procedures that apply to due process hearings, including those in 34 Code of Federal Regulations, §§300.507-300.515 and 300.532, if applicable, and this division;

(3) knowledge of federal and state special education laws, regulations, and rules; and

(4) educational background.

(e) The written authorization must state the party's acknowledgment of the following:

(1) the non-attorney representative has been given full authority to act on the party's behalf with respect to the hearing;

(2) the actions or omissions by the non-attorney representative are binding on the party, as if the party had taken or omitted those actions directly;

(3) documents are deemed to be served on the party if served on the non-attorney representative;

(4) communications between the party and a non-attorney representative are not generally protected by the attorney-client privilege and may be subject to disclosure during the hearing proceeding;

(5) neither federal nor state special education laws provide for the recovery of fees for the services of a non-attorney representative; and

(6) it is the party's responsibility to notify the hearing officer and the opposing party of any change in the status of the authorization and that the provisions of the authorization will remain in effect until the party notifies the hearing officer and the opposing party of the party's revocation of the authorization.

(f) If the non-attorney representative receives monetary compensation in exchange for representing the party in the due process hearing, the written authorization must affirm the following:

(1) the non-attorney representative has agreed to abide by a voluntary code of ethics and professional conduct during the period of representation; and

(2) the non-attorney representative and the party have entered into a confidential, written representation agreement that includes a process for resolving any disputes that may arise between the non-attorney representative and the party.

(g) The written authorization must be signed and dated by the party.

(h) An individual is prohibited from being a party's representative under subsection (a)(2) of this section if the individual has prior employment experience with the school district and the school district raises an objection to the individual serving as a representative based on the individual's prior employment experience. No other objections to a party's representation by a non-attorney are permitted under this section.

(i) Upon receipt of a written authorization filed under this section, the hearing officer must promptly determine whether the non-attorney representative is qualified and meets the requirements to represent the party in the hearing and must notify the parties in writing of the determination. A hearing officer's determination is final and not subject to review or appeal.

(j) A non-attorney representative may not file pleadings or other documents on behalf of a party, present statements and arguments on behalf of a party, examine and cross-examine witnesses, offer and introduce evidence, object to the introduction of evidence and testimony, or engage in other activities in a representative capacity unless the hearing officer has reviewed a written authorization filed under this section and determined that the non-attorney representative is qualified to represent the party in the hearing.

(k) In accordance with the Texas Education Code, §38.022, a school district may require an attorney or a non-attorney representative who enters a school campus to display his or her driver's license or another form of government-issued identification. A school district may also verify whether the representative is a registered sex offender and may apply a policy adopted by its board of trustees regarding the action to be taken when a visitor to a school campus is identified as a sex offender.

Statutory Authority: The provisions of this §89.1175 issued under the Texas Education Code, §29.001 and §29.0162, and 34 Code of Federal Regulations, §300.512.

Source: The provisions of this §89.1175 adopted to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760; amended to be effective February 15, 2018, 43 TexReg 766.

§89.1180. Prehearing Procedures.

(a) Promptly upon being assigned to a due process hearing, the hearing officer will forward to the parties a scheduling order which sets the time, date, and location of the hearing and contains the timelines for the following actions, as applicable:

(1) Response to Request for a Due Process Hearing (34 Code of Federal Regulations (CFR), §300.508(f));

(2) Resolution Meeting (34 CFR, §300.510(a));

(3) Contesting Sufficiency of the Request for a Hearing (34 CFR, §300.508(d));

(4) Resolution Period (34 CFR, §300.510(b));

(5) Five-Business Day Disclosure (34 CFR, §300.512(a)(3)); and

(6) the date by which the final decision of the hearing officer must be issued (34 CFR, §300.515 and §300.532(c)(2)).

(b) The hearing officer must schedule a prehearing conference to be held at a time reasonably convenient to the parties to the hearing. The prehearing conference must be held by telephone unless the hearing officer determines that circumstances require an in-person conference.

(c) The prehearing conference must be recorded and transcribed by a court reporter, who will promptly prepare a transcript of the prehearing conference for the hearing officer with copies to each of the parties.

(d) The purpose of the prehearing conference will be to consider any of the following:

(1) specifying issues as set forth in the request for a hearing;

(2) admitting certain assertions of fact or stipulations;

(3) establishing any limitations on 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.

(e) Promptly upon the conclusion of the prehearing conference, the hearing officer will issue and deliver to the parties a written prehearing order which confirms and/or identifies:

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

(2) the issues to be adjudicated 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 must be issued; and

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

(f) No pleadings, other than the request for a hearing, and the response to the request for a hearing, if applicable, are mandatory, unless ordered by the hearing officer. Any pleadings after the request for a hearing must be filed with the hearing officer. Copies of all pleadings must be sent to all parties of record in the hearing and to the hearing officer. If a party is represented by an attorney or a non-attorney determined by the hearing officer to be qualified to represent the party, all copies must be sent to the attorney of record or non-attorney representative, as applicable. 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 subsection.

(g) Discovery methods are 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 must be issued in the name of the Texas Education Agency.

(h) On or before the Disclosure Deadline (which must be at least five business days prior to a scheduled 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) that 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) that the party anticipates calling to testify at the hearing.

(i) A party may request a dismissal or nonsuit of a hearing to the same extent that a plaintiff may dismiss or nonsuit a case under the Texas Rules of Civil Procedure, Rule 162. However, if a party requests a dismissal or nonsuit of a hearing after the Disclosure Deadline has passed and, at any time within one year thereafter requests a subsequent hearing involving the same or substantially similar issues as those alleged in the original hearing, then, absent good cause or unless the parties agree otherwise, only evidence disclosed and witnesses identified by the Disclosure Deadline in the original hearing may be introduced at the subsequent hearing.

Statutory Authority: The provisions of this §89.1180 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §§300.508, 300.510, 300.512, 300.515, and 300.532.

Source: The provisions of this §89.1180 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760.

§89.1183. Resolution Process.

(a) Within 15 calendar days of receiving notice of the parent's request for a due process hearing, the public education agency must convene a resolution meeting with the parent and the relevant members of the admission, review, and dismissal committee who have specific knowledge of the facts identified in the request. The resolution meeting:

(1) must include a representative of the public education agency who has decision-making authority on behalf of the public education agency; and

(2) may not include an attorney of the public education agency unless the parent is accompanied by an attorney.

(b) The purpose of the resolution meeting is for the parent of the child to discuss the hearing issues and the facts that form the basis of the request for a hearing so that the public education agency has the opportunity to resolve the dispute.

(c) The resolution meeting described in subsections (a) and (b) of this section need not be held if:

(1) the parent and the public education agency agree in writing to waive the meeting; or

(2) the parent and the public education agency agree to use the mediation process described in §89.1193 of this title (relating to Special Education Mediation).

(d) The parent and the public education agency determine the relevant members of the admission, review, and dismissal committee to attend the resolution meeting.

(e) The parties may enter into a confidentiality agreement as part of their resolution agreement. There is nothing in this division, however, that requires the participants in a resolution meeting to keep the discussion confidential or make a confidentiality agreement a condition of a parent's participation in the resolution meeting.

(f) If the public education agency has not resolved the hearing issues to the satisfaction of the parent within 30 calendar days of the receipt of the request for a hearing, the hearing may occur.

(g) Except as provided in subsection (k) of this section, the timeline for issuing a final decision begins at the expiration of this 30-day resolution period.

(h) Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding subsections (f) and (g) of this section, the failure of the parent filing a request for a hearing to participate in the resolution meeting delays the timelines for the resolution process and the hearing until the meeting is held.

(i) If the public education agency is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented in accordance with the procedures in 34 Code of Federal Regulations, §300.322(d)), the public education agency may at the conclusion of the 30-day resolution period, request that a hearing officer dismiss the parent's request for a hearing.

(j) If the public education agency fails to hold the resolution meeting within 15 calendar days of receiving the parent's request for a hearing or fails to participate in the resolution meeting, the parent may seek the intervention of the hearing officer to begin the hearing timeline.

(k) Notwithstanding subsections (f) and (g) of this section, the timeline for issuing a final decision starts the calendar day after one of the following events:

(1) both parties agree in writing to waive the resolution meeting;

(2) after either the mediation or resolution meeting starts but before the end of the 30-day resolution period, the parties agree in writing that no agreement is possible; or

(3) if both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later the parent or public education agency withdraws from the mediation process.

(l) If a resolution to the dispute is reached at the resolution meeting, the parties must execute a legally binding agreement that is:

(1) signed by both the parent and a representative of the public education agency who has the authority to bind the public education agency; and

(2) enforceable in any state or federal court of competent jurisdiction.

(m) If the parties execute an agreement pursuant to subsection (l) of this section, a party may void the agreement within three business days of the agreement's execution.

Statutory Authority: The provisions of this §89.1183 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.510.

Source: The provisions of this §89.1183 adopted to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760.

§89.1185. Hearing Procedures.

(a) The hearing officer must afford the parties an opportunity for hearing within the timelines set forth in 34 Code of Federal Regulations (CFR), §300.515 and §300.532, as applicable, unless the hearing officer, at the request of either party, grants an extension of time, except that the timelines for expedited hearings cannot be extended.

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

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

(d) Except as modified or limited by the provisions of 34 CFR, §§300.507-300.514 or 300.532, or this division, the Texas Rules of Civil Procedure will govern the proceedings at the hearing and the Texas Rules of Evidence will 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 concerning any student who is not the subject of the hearing 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 will be at the hearing officer's discretion.

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

(j) The hearing must be recorded and transcribed by a court reporter, who will promptly prepare and transmit a transcript of the evidence to the hearing officer with copies to each of the parties.

(k) Filing of post-hearing briefs will be permitted only upon order of the hearing officer.

(l) The hearing officer must issue a final decision, signed and dated, no later than 45 calendar days after the expiration of the 30-day resolution period under 34 CFR, §300.510(b), and §89.1183 of this title (relating to Resolution Process) or the adjusted time periods described in 34 CFR, §300.510(c), and §89.1183 of this title after a request for a due process hearing is received by the Texas Education Agency (TEA), unless the deadline for a final decision has been extended by the hearing officer as provided in §89.1186 of this title (relating to Extensions of Time). 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 must be mailed to each party by the hearing officer on the day that the decision is issued. 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 must include, in the final decision, specific findings of fact regarding the following issues:

(1) whether the parent or the public education agency 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 public education agency the appropriate information in the request for a hearing in accordance with 34 CFR, §300.508(b).

(n) 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 hearing in any state court of competent jurisdiction or in a district court of the United States, as provided in 34 CFR, §300.516.

(o) A public education agency must implement any decision of the hearing officer that is, at least in part, adverse to the public education agency within the timeframe prescribed by the hearing officer or, if there is no timeframe prescribed by the hearing officer, within ten school days after the date the decision was rendered. In accordance with 34 CFR, §300.518(d), a public education agency must implement a hearing officer's decision during the pendency of an appeal, except that the public education agency may withhold reimbursement for past expenses ordered by the hearing officer.

(p) In accordance with 34 CFR, §300.152(c)(3), a parent may file a complaint with the TEA alleging that a public education agency has failed to implement a hearing officer's decision.

Statutory Authority: The provisions of this §89.1185 issued under the Texas Education Code, §29.001 and §29.0162, and 34 Code of Federal Regulations, §§300.512, 300.515, and 300.532.

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; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760.

§89.1186. Extensions of Time.

(a) A hearing officer may grant extensions of time for good cause beyond the time period specified in §89.1185(l) of this title (relating to Hearing Procedures) at the request of either party. A hearing officer must not solicit extension requests, grant extensions on his or her own behalf, or unilaterally issue extensions for any reason. Any extension must be granted to a specific date, and the reason for the extension must be documented in a written order of the hearing officer and provided to each of the parties.

(b) A hearing officer may grant a request for an extension only after fully considering the cumulative impact of the following factors:

(1) whether the delay will positively contribute to, or adversely affect, the child's educational interest or well-being;

(2) the need of a party for additional time to prepare or present the party's position at the hearing;

(3) any adverse financial or other detrimental consequences likely to be suffered by a party in the event of delay; and

(4) whether there has already been a delay in the proceeding through the actions of one of the parties.

Statutory Authority: The provisions of this §89.1186 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.515.

Source: The provisions of this §89.1186 adopted to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760.

§89.1191. Special Rule for Expedited Due Process Hearings.

A parent who disagrees with any decision regarding a child's placement under 34 Code of Federal Regulations (CFR), §300.530 and §300.531, or a manifestation determination under 34 CFR, §300.530(e), or a school district that believes that maintaining the current placement of a child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing under 34 CFR, §300.532. An expedited due process hearing will be governed by the same procedural rules as are applicable to due process hearings generally, except that:

(1) the hearing must occur within 20 school days of the date the request for a due process hearing is filed;

(2) the hearing officer must make a decision within 10 school days after the hearing;

(3) unless the parents and the school district agree in writing to waive the resolution meeting required by 34 CFR, §300.532(c)(3)(i), or to use the mediation process described in 34 CFR, §300.506, the resolution meeting must occur within seven calendar days of the receipt of the request for a hearing;

(4) the hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of the receipt of the request for a hearing;

(5) the hearing officer must not grant any extensions of time or grant permission for the hearing to proceed under the timelines that apply to hearings involving non-disciplinary matters; and

(6) the provisions in 34 CFR, §300.508(d), do not apply.

Statutory Authority: The provisions of this §89.1191 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.532.

Source: The provisions of this §89.1191 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760.

§89.1192. Attorneys' Fees.

In an action or proceeding brought under this division, a court, in its discretion, may award reasonable attorneys' fees to the prevailing party under the circumstances described in 34 Code of Federal Regulations, §300.517.

Statutory Authority: The provisions of this §89.1192 issued under the Texas Education Code, §29.001 and §29.0162, and 34 Code of Federal Regulations, §§300.100, 300.121, 300.506-300.508, 300.511, 300.512, 300.517, and 300.532.

Source: The provisions of this §89.1192 adopted to be effective March 1, 2017, 42 TexReg 760.

§89.1193. Special Education Mediation.

(a) In accordance with 34 Code of Federal Regulations (CFR), §300.506, the Texas Education Agency (TEA) has established a mediation process to provide parents and public education agencies with an opportunity to resolve disputes involving any matter arising under Part B of the Individuals with Disabilities Education Act (IDEA) or 34 CFR, §300.1 et seq.Mediation is available to resolve these disputes at any time.

(b) The mediation procedures must ensure that the process is:

(1) voluntary on the part of the parties;

(2) not used to deny or delay a parent's right to a due process hearing or to deny any other rights afforded under Part B of the IDEA; and

(3) conducted by a qualified and impartial mediator who is trained in effective mediation techniques and who is knowledgeable in laws and regulations relating to the provision of special education and related services.

(c) A request for mediation must be in writing and must be filed with the TEA by electronic mail, mail, hand-delivery, or facsimile. The TEA has developed a form that may be used by parties requesting mediation. The form is available on request from the TEA and is also available on the TEA website.

(d) The TEA will maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.

(e) An individual who serves as a mediator:

(1) must not be an employee of the TEA or the public education agency that is involved in the education or care of the child who is the subject of the mediation process;

(2) must not have a personal or professional conflict of interest, including relationships or contracts with schools or parents outside of mediations assigned by the TEA; and

(3) is not an employee of the TEA solely because the individual is paid by the TEA to serve as a mediator.

(f) The TEA will select mediators on a random, rotational, or other impartial basis. Selecting mediators on an impartial basis includes permitting the parties involved in a dispute to agree on a mediator from the TEA's list of mediators. If the parties agree to a mediator, they must advise the TEA of the desired mediator. The TEA will provide the parties with written notice of the specific mediator assigned to conduct the mediation. The parties must not contact a mediator on the TEA's list of mediators until the TEA has provided the parties with the written notice of the mediator assignment.

(g) If a mediator is also a hearing officer under §89.1170 of this title (relating to Impartial Hearing Officer), that individual may not serve as a mediator if he or she is the hearing officer in a pending due process hearing involving the same student who is the subject of the mediation process or was the hearing officer in a previous due process hearing involving the student who is the subject of the mediation process.

(h) The TEA will bear the cost of the mediation process.

(i) A mediation session must be scheduled in a timely manner and held in a location that is convenient to the parties.

(j) If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that:

(1) states that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(2) is signed by both the parent and a representative of the public education agency who has the authority to bind the public education agency.

(k) A written, signed mediation agreement under subsection (j) of this section is enforceable in any state or federal court of competent jurisdiction.

(l) Discussions that occur during the mediation process are confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings of any state or federal court.

Statutory Authority: The provisions of this §89.1193 issued under the Texas Education Code, §29.001, and 34 Code of Federal Regulations, §300.506.

Source: The provisions of this §89.1193 adopted to be effective December 31, 2013, 38 TexReg 9552; amended to be effective March 1, 2017, 42 TexReg 760; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1195. Special Education Complaint Resolution.

(a) In accordance with 34 Code of Federal Regulations (CFR), §300.151, the Texas Education Agency (TEA) has established a complaint resolution process that provides for the investigation and issuance of findings regarding alleged violations of Part B of the Individuals with Disabilities Education Act (IDEA).

(b) A complaint may be filed with the TEA by any individual or organization and must:

(1) be in writing;

(2) include the signature and contact information for the complainant;

(3) contain a statement that a public education agency has violated Part B of the IDEA; 34 CFR, §300.1 et seq.; or a state special education statute or administrative rule;

(4) include the facts upon which the complaint is based;

(5) if alleging violations with respect to a specific student, include:

(A) the name and address of the residence of the student;

(B) the name of the school the student is attending;

(C) in the case of a homeless child or youth (within the meaning of §725(2) of the McKinney-Vento Homeless Act (42 United States Code, §11434a(2)), available contact information for the student and the name of the school the student is attending;

(D) a description of the nature of the problem of the student, including facts relating to the problem; and

(E) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed;

(6) allege a violation that occurred not more than one calendar year prior to the date the complaint is received; and

(7) be forwarded to the public education agency that is the subject of the complaint at the same time that the complaint is filed with the TEA.

(c) A complaint must be filed with the TEA by electronic mail, mail, hand-delivery, or facsimile. The TEA has developed a form that may be used by persons or organizations filing a complaint. The form is available on request from the TEA and is also available on the TEA website. The complaint timeline will commence the next business day after the day on which the TEA receives the complaint.

(d) If a complaint does not meet the requirements outlined in subsection (b) of this section, the TEA must notify the complainant of the deficiencies in the complaint.

(e) Upon receipt of a complaint that meets the requirements of this section, the TEA must initiate an investigation to determine whether the public education agency is in compliance with applicable law and regulations in accordance with the following procedures.

(1) The TEA must send written notification to the parties acknowledging receipt of a complaint.

(A) The notification must include:

(i) the alleged violations that will be investigated;

(ii) alternative procedures available to address allegations in the complaint that are outside of the scope of Part B of the IDEA; 34 CFR, §300.1, et seq.; or a state special education statute or administrative rule;

(iii) a statement that the public education agency may, at its discretion, investigate the alleged violations and propose a resolution of the complaint;

(iv) a statement that the parties have the opportunity to resolve the complaint through mediation in accordance with the procedures in §89.1193 of this title (relating to Special Education Mediation);

(v) a timeline for the public education agency to submit:

(I) documentation demonstrating that the complaint has been resolved; or

(II) a written response to the complaint and all documentation and information requested by the TEA;

(vi) a statement that the complainant may submit additional information about the allegations in the complaint, either orally or in writing within a timeline specified by the TEA, and may provide a copy of any additional information to the public education agency to assist the parties in resolving the dispute at the local level; and

(vii) a statement that the TEA may grant extensions of the timeline for a party to submit information under clause (v) or (vi) of this subparagraph at the request of either party.

(B) The public education agency must provide the TEA with a written response to the complaint and all documentation and information requested by the TEA. The public education agency must forward its response to the parent who filed the complaint at the same time that the response is provided to the TEA. The public education agency may also provide the parent with a copy of the documentation and information requested by the TEA. If the complaint was filed by an individual other than the student's parent, the public education agency must forward a copy of the response to that individual only if written parental consent has been provided to the public education agency.

(2) If the complaint is also the subject of a due process hearing or if it contains multiple issues of which one or more are part of that due process hearing, the TEA must:

(A) set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing; and

(B) resolve any issue in the complaint that is not a part of the due process hearing.

(3) If an issue raised in the complaint has previously been decided in a due process hearing involving the same parties, the TEA must inform the complainant that the due process hearing decision is binding.

(4) The TEA has 60 calendar days after a valid written complaint is received to carry out the investigation and to resolve the complaint. The TEA may extend the time limit beyond 60 calendar days if exceptional circumstances, as determined by the TEA, exist with respect to a particular complaint. The parties will be notified in writing by the TEA of the exceptional circumstances, if applicable, and the extended time limit. The time limit may also be extended if the parties agree to extend it in order to engage in mediation pursuant to §89.1193 of this title or other alternative means of dispute resolution. In accordance with the Texas Education Code, §29.010(e), the TEA must expedite a complaint alleging that a public education agency has refused to enroll a student eligible for special education and related services or that otherwise indicates a need for expedited resolution, as determined by the TEA.

(5) During the course of the investigation, the TEA must:

(A) conduct an investigation of the complaint that must include a complete review of all relevant documentation and that may include interviews with appropriate individuals and an independent on-site investigation, if necessary;

(B) consider all facts and issues presented and the applicable requirements specified in law, regulations, or standards;

(C) make a determination of compliance or noncompliance on each issue in the complaint based upon the facts and applicable law, regulations, or standards and issue a written report of findings of fact and conclusions, including reasons for the decision, and any corrective actions that are required, including the time period within which each action must be taken;

(D) review any evidence that the public education agency has corrected noncompliance on its own initiative;

(E) ensure that the TEA's final decision is effectively implemented, if needed, through technical assistance activities, negotiations, and corrective actions to achieve compliance; and

(F) in the case of a complaint filed by an individual other than the student's parent, provide a copy of the written report only if written parental consent has been provided to the TEA.

(6) In resolving a complaint in which a failure to provide appropriate services is found, the TEA must address:

(A) the failure to provide appropriate services, including corrective action appropriate to address the needs of the student, including compensatory services, monetary reimbursement, or other corrective action appropriate to the needs of the student; and

(B) appropriate future provision of services for all students with disabilities.

(7) In accordance with 34 CFR, §300.600(e), the public education agency must complete all required corrective actions as soon as possible, and in no case later than one year after the TEA's identification of the noncompliance. A public education agency's failure to correct the identified noncompliance within the one-year timeline will result in an additional finding of noncompliance under 34 CFR, §300.600(e), and may result in sanctions against the public education agency in accordance with §89.1076 of this title (relating to Interventions and Sanctions).

(f) If a party to a complaint believes that the TEA's written report includes an error that is material to the determination in the report, the party may submit a signed, written request for reconsideration to the TEA by electronic mail, mail, hand-delivery, or facsimile within 15 calendar days of the date of the report. The party's reconsideration request must identify the asserted error and include any documentation to support the claim. The party filing a reconsideration request must forward a copy of the request to the other party at the same time that the request is filed with the TEA. The other party may respond to the reconsideration request within five calendar days of the date on which the TEA received the request. The TEA will consider the reconsideration request and provide a written response to the parties within 45 calendar days of receipt of the request. The filing of a reconsideration request must not delay a public education agency's implementation of any corrective actions required by the TEA.

(g) In accordance with 34 CFR, §300.151, the TEA's complaint resolution procedures must be widely disseminated to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities.

Statutory Authority: The provisions of this §89.1195 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1195 adopted to be effective December 31, 2013, 38 TexReg 9552; amended to be effective January 1, 2015, 39 TexReg 10446; amended to be effective March 22, 2017, 42 TexReg 1247; amended to be effective March 14, 2021, 46 TexReg 1466.

§89.1196. Individualized Education Program Facilitation.

(a) For the purpose of this section and Texas Education Code, §29.019, individualized education program (IEP) facilitation refers to a method of alternative dispute resolution that involves the use of a trained facilitator to assist an admission, review, and dismissal (ARD) committee in developing an IEP for a student with a disability. The facilitator uses facilitation techniques to help the committee members communicate and collaborate effectively. While public education agencies are not required to offer IEP facilitation as an alternative dispute resolution method, the Texas Education Agency (TEA) encourages the use of IEP facilitation as described in this section.

(b) A public education agency is not prohibited from incorporating elements of IEP facilitation into ARD committee meetings that are conducted without the assistance of a facilitator as described in this section. For example, a public education agency may provide training on communication skills, conflict management, or meeting effectiveness to individuals who participate in ARD committee meetings to enhance collaboration and efficiency in those meetings.

(c) A public education agency that chooses to offer IEP facilitation under this section may determine whether to use independent contractors, employees, or other qualified individuals as facilitators. At a minimum, an individual who serves as a facilitator must:

(1) have demonstrated knowledge of federal and state requirements relating to the provision of special education and related services to students with disabilities;

(2) have demonstrated knowledge of and experience with the ARD committee meeting process;

(3) have completed 18 hours of training in IEP facilitation, consensus building, and/or conflict resolution; and

(4) complete continuing education as determined by the public education agency.

(d) A public education agency that chooses to offer IEP facilitation under this section must ensure that:

(1) participation is voluntary on the part of the parties;

(2) the facilitation is provided at no cost to parents; and

(3) the process is not used to deny or delay the right to pursue a special education complaint, mediation, or a due process hearing in accordance with Part B of the Individuals with Disabilities Education Act (IDEA) and this division.

(e) A public education agency that chooses to offer IEP facilitation under this section must develop written policies and procedures that include:

(1) the procedures for requesting facilitation;

(2) facilitator qualifications, including whether facilitators are independent contractors, employees, or other qualified individuals;

(3) the process for assigning a facilitator;

(4) the continuing education requirements for facilitators; and

(5) a method for evaluating the effectiveness of the facilitation services and the individual facilitators.

(f) A public education agency that chooses to offer IEP facilitation under this section must provide parents with information about the process, including a description of the procedures for requesting IEP facilitation and information related to facilitator qualifications. This information must be included when a copy of the procedural safeguards notice under 34 Code of Federal Regulations (CFR), §300.504 is provided to parents, although this information may be provided as a separate document and may be provided in a written or electronic format.

(g) A facilitator under this section must not be a member of the student's ARD committee, must not have any decision-making authority over the committee, and must remain impartial to the topics under discussion. The facilitator must assist with the overall organization and conduct of the ARD committee meeting by:

(1) assisting the committee in establishing an agenda and setting the time allotted for the meeting;

(2) assisting the committee in establishing a set of guidelines for the meeting;

(3) guiding the discussion and keeping the focus on developing a mutually agreed upon IEP for the student;

(4) ensuring that each committee member has an opportunity to participate;

(5) helping to resolve disagreements that arise; and

(6) helping to keep the ARD committee on task so that the meeting purposes can be accomplished within the time allotted for the meeting.

(h) Promptly after being assigned to facilitate an ARD committee meeting, or within a timeline established under the public education agency's procedures, the facilitator must contact the parents and public education agency representative to clarify the issues, gather necessary information, and explain the IEP facilitation process.

(i) A public education agency that chooses to offer IEP facilitation under this section must ensure that facilitators protect the confidentiality of personally identifiable information about the student and comply with the requirements in the Family Educational Rights and Privacy Act regulations, 34 CFR, Part 99, relating to the disclosure and redisclosure of personally identifiable information from a student's education record.

(j) The TEA will develop information regarding IEP facilitation as an alternative dispute resolution method, and such information will be available upon request from the TEA and on the TEA website.

Statutory Authority: The provisions of this §89.1196 issued under the Texas Education Code, §29.001 and 29.019.

Source: The provisions of this §89.1196 adopted to be effective January 1, 2015, 39 TexReg 10446.

§89.1197. State Individualized Education Program Facilitation.

(a) In accordance with the Texas Education Code, §29.020, the Texas Education Agency (TEA) will establish a program that provides independent individualized education program (IEP) facilitators beginning with the 2014-2015 school year.

(b) For the purpose of this section, IEP facilitation has the same general meaning as described in §89.1196(a) of this title (relating to Individualized Education Program Facilitation), except that state IEP facilitation is used when the admission, review, and dismissal (ARD) committee is in dispute about decisions relating to the provision of a free and appropriate public education to a student with a disability and the facilitator is an independent facilitator provided by the TEA.

(c) A request for IEP facilitation under this section must be filed by completing a form developed by the TEA that is available upon request from the TEA and on the TEA website. The form must be filed with the TEA by one of the parties by electronic mail, mail, hand-delivery, or facsimile.

(d) IEP facilitation under this section must be voluntary on the part of the parties and provided at no cost to the parties.

(e) In order for the TEA to provide an independent facilitator, the following conditions must be met.

(1) The required form must be completed and signed by both parties.

(2) The dispute must relate to an ARD committee meeting in which mutual agreement about one or more of the required elements of the IEP was not reached and the parties have agreed to recess and reconvene the meeting in accordance with §89.1050(g) of this title (relating to The Admission, Review, and Dismissal Committee).

(3) The request for IEP facilitation must have been filed within 10 calendar days of the ARD committee meeting that ended in disagreement, and a facilitator must be available on the date set for reconvening the meeting.

(4) The dispute must not relate to a manifestation determination or determination of interim alternative educational setting under 34 Code of Federal Regulations (CFR), §300.530 or §300.531.

(5) The same parties must not be concurrently involved in special education mediation under §89.1193 of this title (relating to Special Education Mediation).

(6) The issues in dispute must not be the subject of a special education complaint under §89.1195 of this title (relating to Special Education Complaint Resolution) or a special education due process hearing under §89.1151 of this title (relating to Special Education Due Process Hearings) and §89.1165 of this title (relating to Request for Special Education Due Process Hearing).

(7) The same parties must not have participated in IEP facilitation concerning the same student under this section within the same school year of the filing of the current request for IEP facilitation.

(f) Within five business days of receipt of a request for an IEP facilitation under this section, the TEA will determine whether the conditions in subsections (c)-(e) of this section have been met and will notify the parties of its determination and the assignment of the independent facilitator, if applicable.

(g) Notwithstanding subsections (b)-(e) of this section, if a special education due process hearing or complaint decision requires a public education agency to provide an independent facilitator to assist with an ARD committee meeting, the public education agency may request that the TEA assign an independent facilitator. Within five business days of receipt of a written request for IEP facilitation under this subsection, the TEA will notify the parties of its decision to assign or not assign an independent facilitator. If TEA declines the request to assign an independent facilitator, the public education agency must provide an independent facilitator at its own expense.

(h) The TEA's decision not to provide an independent facilitator is final and not subject to review or appeal.

(i) The independent facilitator assignment may be made based on a combination of factors, including, but not limited to, geographic location and availability. Once assigned, the independent facilitator must promptly contact the parties to clarify the issues, gather necessary information, and explain the IEP facilitation process.

(j) The TEA will use a competitive solicitation method to seek independent facilitation services, and the contracts with independent facilitators will be developed and managed in accordance with the TEA's contracting practices and procedures.

(k) At a minimum, an individual who serves as an independent facilitator under this section:

(1) must have demonstrated knowledge of federal and state requirements relating to the provision of special education and related services to students with disabilities;

(2) must have demonstrated knowledge of and experience with the ARD committee meeting process;

(3) must have completed 18 hours or more of training in IEP facilitation, consensus building, and/or conflict resolution as specified in the TEA's competitive solicitation;

(4) must complete continuing education as determined by the TEA;

(5) may not be an employee of the TEA or the public education agency that the student attends; and

(6) may not have a personal or professional interest that conflicts with his or her impartiality.

(l) An individual is not an employee of the TEA solely because the individual is paid by the TEA to serve as an independent facilitator.

(m) An independent facilitator must not be a member of the student's ARD committee, must not have any decision-making authority, and must remain impartial to the topics under discussion. The independent facilitator must assist with the overall organization and conduct of the ARD committee meeting by:

(1) assisting the committee in establishing an agenda and setting the time allotted for the meeting;

(2) assisting the committee in establishing a set of guidelines for the meeting;

(3) guiding the discussion and keeping the focus on developing a mutually agreed upon IEP for the student;

(4) ensuring that each committee member has an opportunity to participate;

(5) helping to resolve disagreements that arise; and

(6) helping to keep the ARD committee on task so that the meeting purposes can be accomplished within the time allotted for the meeting.

(n) An independent facilitator must protect the confidentiality of personally identifiable information about the student and comply with the requirements in the Family Educational Rights and Privacy Act regulations, 34 CFR, Part 99, relating to the disclosure and redisclosure of personally identifiable information from a student's education record.

(o) The TEA will develop surveys to evaluate the IEP facilitation program and the independent facilitators and will request that parties who participate in the program complete the surveys.

Statutory Authority: The provisions of this §89.1197 issued under the Texas Education Code, §§28.025, 29.001, 29.003, 29.004, 29.005, 29.010, 29.011, 29.0111, 29.012, 29.013, 29.0151, 29.017, 29.018, 29.019, 29.020, 30.001, 30.0015, 30.002, 30.021, 30.005, 30.051, 30.057, 30.083, 37.0021, 48.004, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.121, 300.124, 300.129, 300.147, 300.149, 300.151, 300.152, 300.153, 300.307, 300.320, 300.500, 300.506, 300.507, and 300.600.

Source: The provisions of this §89.1197 adopted to be effective January 1, 2015, 39 TexReg 10446; amended to be effective March 14, 2021, 46 TexReg 1466.

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Slide #10 Local Administrative Law/Policy/Rule:

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Slide #10 Local Administrative Law/Policy/Rule:

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Mt. San Jacinto Community College. (2002). Board Policies Ch. 5. Student Services-Disabled Students Programs and Services. BP 5140.

https://go.boarddocs.com/ca/msjc/Board.nsf/goto?open&id=ANJ35S048AAC#

Commitment to the inclusion of students with disabilities. Students with disabilities shall be reasonably accommodated pursuant to federal and state requirements in all applicable District programs and activities.

The Disabled Students Programs and Services (DSPS) program shall be the primary provider of disability services

DSPS services shall be available to students with verified disabilities

Students with a disability are not required to participate in DSPS

The District shall respond in a timely manner to accommodation requests

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Board of Trustees - Board of Trustees (L-R): Brian Sylva (Area 1), Joshua Rivera (Area 2), Ann Motte (Area 4), Vicki Carpenter (Area 3, President), Tom Ashley (Area 5, Clerk)

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The ASCA Ethical Standards for School Counselors

A.10.G Recognize the strengths of students with disabilities as well as their challenges and provide best practices and current research in supporting their academic, career and social/emotional needs.

Citation: American School Counselor Association. (2016). The ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/getmedia/764178fc-c4b7-45d2-a4bc-bd4e101ab15e/EthicalStandards.pdf
Connection:
It is essential for teachers and counselors to provide customized support to students with disabilities. Helping them to build on their strengths and improve their weak areas. This ethical principle also applies to their duty according to tort law.

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Slide #12 Personal Connection to the Legal and Ethical Standards:

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Slide #12 Personal Connection to the Legal and Ethical Standards:

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The disability laws advocating and ensuring the support required for students with disabilities to receive an equitable education has helped me fight my way through my education and receive my master's degree. Additionally, having teachers who would help me build upon my strengths and encourage gave me hope along this challenging journey. I would have never imagined someone like myself would ever have the ability or opportunity to receive a master's degree. I did not realize how complicated the legal process can be and how many levels and types of laws are required to support one federal law such as IDEA. As a future community college counselor, it is crucial to understand the laws that protect students with disabilities to ensure they receive the support they need to succeed.

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Slide #13 Bulleted list of Recommendations:

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Slide #13 Bulleted list of Recommendations:

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·      Become familiar with disability law related to education

·      Become familiar with the ethical standards related to disability

·      Become familiar with the disability services are offered on your campus

·      Provide a warm handoff between students seeking services and the disability
services department on your campus

·      Actively listen to students who are struggling academically

·      Make a list of Instructors who have more patience when working with
students with disabilities in their classrooms