The rule action presented in this item will be filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts new 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, §97.1072, Residential Facility Monitoring; Determinations, Investigations, and Sanctions. The new rule implements the requirements of the Texas Education Code (TEC), the Individuals with Disabilities Education Improvement Act (IDEA 2004) Amendments of 2004, and 34 Code of Federal Regulations (CFR), which require the agency to adopt and implement a comprehensive system for monitoring school district compliance with federal and state laws relating to special education. Specifically, the adoption establishes procedures for the administration of residential facility (RF) monitoring for public school districts and open-enrollment charter schools related to programs provided to students with disabilities residing in RFs. The action also adopts in rule the Residential Facility Monitoring (RFM) Manual, dated August 2010. No changes were made to the rule or manual since published as proposed.

STATUTORY AUTHORITY:

TEC, §29.010, and 34 CFR §300.149 and §300.600.

EFFECTIVE DATE:

December 22, 2010.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES:

On April 15, 2004, the United States District Court issued a decision in the Angel G. v. Texas Education Agency lawsuit and found that the Texas Education Agency (TEA) must develop a new monitoring system to ensure that students with disabilities residing in RFs received a free, appropriate public education (FAPE). On May 17, 2004, the TEA filed a Notice of Appeal in the United States Court of Appeals for the Fifth Circuit. During the pendency of the appeal, the parties agreed to the entry of a consent decree to resolve the disputes and to achieve a common goal of developing and implementing an effective monitoring system. The consent decree was filed with the District Court on August 8, 2005, and will automatically expire on December 31, 2010, given that neither party requested that the District Court extend the term of the consent decree.

The TEA began implementing the consent decree during the 2005-2006 school year by hiring and training RF monitoring staff and developing required products and data collection systems. During the 2006-2007 school year, the TEA completed initial development of the RF monitoring system in accordance with the terms of the consent decree, and on-site RF monitoring visits under the terms of the consent decree began. For the subsequent school years of 2007-2008, 2008-2009, and 2009-2010, the TEA continued to implement the monitoring system required under the consent decree.

While the Angel G. consent decree will expire on December 31, 2010, the TEA has identified an ongoing need to oversee and monitor the programs provided to students with disabilities who reside in RFs. Therefore, the commissioner will, through this rule adoption, implement a system of RF monitoring after the expiration of the consent decree.

Adopted new 19 TAC §97.1072, Residential Facility Monitoring; Determinations, Investigations, and Sanctions, establishes a residential facility monitoring (RFM) system through which the TEA will meet its federal and state special education monitoring obligations for the RF population. The new rule establishes a data collection system for RFM and the general criteria used to determine which districts will be subject to RFM activities. The new rule also describes the graduated monitoring activities that will comprise the RFM system and possible interventions and/or sanctions that will be implemented under the system. Furthermore, the action adopts in rule an RF monitoring manual to define RF districts subject to the RFM system and establish specific criteria, standards, and procedures for implementing the RFM system.

No changes were made to the rule or manual since published as proposed.

FISCAL IMPACT:

The TEA has determined that there are no additional costs to persons or entities required to comply with the rule action. The rule action modifies and continues a monitoring system that has been implemented under the terms of the Angel G. consent decree since the 2006-2007 school year and that is required to continue to ensure compliance with state and federal special education laws. The rule action assigns no additional fiscal burden beyond what already is imposed by law or the previous consent decree.

In addition, there is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

PUBLIC AND STUDENT BENEFIT:

The adopted rule action provides for standards and procedures for monitoring the special education programs provided to students with disabilities residing in RFs. In addition, the rule action provides for the implementation of sanctions and interventions to improve district performance and compliance with federal and state special education requirements for a unique and vulnerable population of students who often have limited access to family members who can advocate for their educational needs.

PROCEDURAL AND REPORTING IMPLICATIONS:

The adopted rule action has no new reporting implications. Consistent with current procedures, districts subject to the RFM system have a continuing obligation to submit data regarding RF students with disabilities to the TEA. Districts and campuses have continued reporting obligations related to required interventions and sanctions under this action. However, the TEA will seek to reduce, to the extent possible, the data reporting obligations previously associated with the requirements of the consent decree.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS:

The adopted rule action would have no new locally maintained paperwork requirements. Districts will continue to be required to maintain documentation related to completion of required RFM intervention activities and/or implementation of any required RFM sanctions.

PUBLIC COMMENTS:

The public comment period on the proposal began October 8, 2010, and ended November 8, 2010. Attachment III reflects a summary of public comments received and corresponding agency responses regarding the proposed new 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, §97.1072, Residential Facility Monitoring; Determinations, Investigations, and Sanctions.

ALTERNATIVES:

None.

OTHER COMMENTS AND RELATED ISSUES:

None.

Staff Members Responsible:

Laura Taylor, Associate Commissioner, Accreditation
Karen Batchelor, Deputy Associate Commissioner, Program Monitoring and Interventions

For additional information, email rules@tea.state.tx.us.

Page last modified on 8/30/2011.