No. 43655 (New Rule): Rule R277-926. Certification of Residential Treatment Center Special Education Program

(New Rule)

DAR File No.: 43655
Filed: 04/15/2019 05:07:49 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to provide a certification process and procedure for residential treatment centers where a public education entity's Individualized Education Program (IEP) team places an in-state or out-of-state student receiving special education services for purposes of receiving a free and appropriate public education.

Summary of the rule or change:

This rule is being created to provide a certification process for special education programs provided by residential treatment centers (RTC). A local education agency (LEA) in any state may send a student receiving special education to an RTC in Utah or other states for the purposes of fulfilling the IEP of a student. Several states including California and Illinois now require that an LEA only send a student to an out of state RTC if the receiving state's LEA has a certification process for the RTC's special education program. This rule creates that certification process for Utah RTCs and this rule will allow the Utah RTC's to continue to serve students from other states.

Statutory or constitutional authorization for this rule:

• Article X Section 3
• Subsection 53E-3-401(4)

Anticipated cost or savings to:

the state budget:

This rule change is not expected to have any fiscal impact on state government revenues or expenditures. This rule is being created to provide a certification process for special education programs provided by RTCs. An LEA in any state may send a special education student to an RTC in Utah or other states for the purposes of fulfilling the IEP of a student. Several states including California and Illinois now require that an LEA only send a student to an out-of-state RTC if the receiving state's education agency has a certification process for an RTC's special education program. This rule creates that certification process for Utah RTCs. This proposed rule will not have a fiscal impact to the state because the Legislature appropriated funding to the Utah State Board of Education (Board) for RTC compliance during the 2019 General session.

local governments:

This proposed rule is not expected to have any fiscal impact on local governments' revenues or expenditures. This rule applies to RTCs and does not include an organization or agency that operates as a public agency or offers public service so it does not include local governments.

small businesses:

This proposed rule is not expected to have a fiscal impact on small businesses' revenues or expenditures. This rule is being created to provide a certification process for special education programs provided by RTCs. RTCs, some of which are small businesses, will need to apply for certification, but any fiscal impact from the application process is inestimable.

persons other than small businesses, businesses, or local governmental entities:

This proposed rule is not expected to have any fiscal impact on persons other than small businesses', businesses', or local government entities' revenues or expenditures. This rule applies to RTCs and a certification process through the Board and thus it does not have a fiscal impact on other entities.

Compliance costs for affected persons:

There were no compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed rule is not expected to have a fiscal impact on businesses' revenues or expenditures. This rule is being created to provide a certification process for special education programs provided by RTCs. RTCs will need to apply for certification, but any fiscal impact from the application process is inestimable. The Program Analyst at the Utah State Board of Education, Jill Curry, has reviewed and approved this fiscal analysis.

Sydnee Dickson, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7550, by FAX at 801-538-7768, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/31/2019

This rule may become effective on:

06/07/2019

Authorized by:

Angela Stallings, Deputy Superintendent of Policy

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Person

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

This rule is not expected to have a fiscal impact on non-small business revenues or expenditures. This rule is being created to provide a certification process for special education programs provided by residential treatment centers. Residential treatment centers, some of which are non-small businesses, will need to apply for certification, but any fiscal impact from the application process is inestimable.

 

The Program Analyst at the Utah State Board of Education, Jill Curry, has reviewed and approved this fiscal analysis.

 

 

R277. Education, Administration.

R277-926. Certification of Residential Treatment Center Special Education Program.

R277-926-1. Authority and Purpose.

(1) This rule is authorized by:

(a) Utah Constitution Article X, Section 3, which vests general control and supervision of public education in the Board; and

(b) Subsection 53E-3-401(4), which allows the Board to make rules to execute the Board's duties and responsibilities under the Utah Constitution and State of Utah law.

(2) The purpose of this rule is to provide a certification process and procedure for residential treatment centers where IEP teams place an in-state or out-of-state special education students for purposes of receiving a free and appropriate public education.

 

R277-926-2. Definitions.

(1) "Nonsectarian" means a nonpublic school or agency that is not owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility.

(2)(a) "Residential Treatment Center" or "RTC" means a private, or nonsectarian establishment that provides related services necessary for a student with special needs to benefit educationally from the student's IEP.

(b) "Residential Treatment Center" or "RTC" does not include an organization or agency that operates as a public agency or offers public service, including:

(i) a state or local agency;

(ii) an affiliate of a state or local agency including:

(A) a private, nonprofit corporation established or operated by a state or local agency;

(B) a public university or college; or

(C) a public hospital.

(3) "Qualified personnel" means an in-classroom staff member who:

(a) provides assistance with a student's education;

(b) has met requirements for federal and state certification, licensing, registration, or other comparable training requirements that apply to the area in which the staff member is providing related services, including board approved or recognized requirements; and

(c) actively adheres to the standards of professional practice established in federal and State of Utah law or regulation.

 

R277-926-3. Certification of a Residential Treatment Center.

(1) An RTC shall have the RTC's special needs program certified by the Superintendent before providing services for a free and appropriate public education to in-state or out-of-state students with special education needs and a current IEP from an LEA.

(2) An RTC seeking certification shall apply for an initial or renewal certification in a form prescribed by the Superintendent.

(3) An RTC's application shall include:

(a) a detailed description of the RTC's special education program provided, including:

(i) minimum instructional minutes for each grade level served;

(ii) specially designed instruction for:

(A) social skills;

(B) counseling; and

(C) parent training;

(iii) evidence of age appropriate core curriculum that aligns with the Utah core standards or aligns with the core standards of the student's state of origin;

(iv) for grades K-8, evidence showing the use of at least one resource, including a textbook or curricular program, adopted by the student's state of origin or Utah for each core standard subject including:

(A) English language arts;

(B) Math; and

(C) Science;

(v) for grades 9-12, evidence showing alignment of curriculum for core standard subjects with an LEA's curriculum in Utah or the student's state of origin;

(b) evidence, including educator licenses or employee resumes, of qualified personnel for each subject area including:

(i) English language arts;

(ii) Math; and

(iii) Science;

(c) evidence that each aide assisting in a student's education has received training in appropriate behavior as regulated by the Utah Department of Human Services and academic content areas specific to an aide's classroom assignment, including training required by state of Utah and federal law;

(d) an assurance that each student, aged 14 years and above, has a transition plan as described in Subsection R277-926-4(3)(a);

(e) evidence that an RTC is collaborating with a student's LEA of origin's fully constituted IEP team to:

(i) carry out the specific requirements of the student's IEP, including the general requirements described in Subsection R277-926-4(3)(b);

(ii) facilitate an annual IEP review; and

(iii) when necessary, participate in the student's triennial evaluation, including:

(A) an outlined process for the evaluation;

(B) the ability to allow on-site accessibility to third parties required for evaluation participation; and

(C) collaborate with the LEA of origin for the administration of the assessment.

(f) a description of the RTC's behavior intervention plan, including the incident management procedures and reporting requirements described in Subsection R277-926-4(3)(c);

(g) evidence of how meaningful parental involvement is facilitated;

(h) documentation showing all staff at the RTC have been fingerprinted and have passed state and federal criminal background checks before being allowed to have contact with any student;

(i) an assurance showing participation in the LEA of origin with federal Child Find mandates as outlined in 20 U.S.C. 1412(a)(3);

(j) an assurance that the RTC is a nonsectarian RTC; and

(k) if applicable, a copy of the Private School Affidavit filed with a student's state of origin.

(4) Except as provided in Subsection (7), an RTC may apply for an initial certification and receive notification of certification approval or denial within 60 days.

(5) An RTC shall apply for certification renewal no later than June 1 ^st for the upcoming school year.

(6) Except as provided in Subsection (7), the Superintendent shall provide the RTC notice of the Superintendent's approval or denial of the RTC's application for certification within 60 days of receipt of the RTC's application.

(7) For an application received before January 1, 2020, the Superintendent shall notify an RTC of the Superintendent's approval or denial of the RTC's request for certification within 45 days.

(8) An RTC with a pending application shall be subject to an on-site review by the Superintendent within 45 days of the RTC submitting the RTC's application.

(9) An RTC's application for certification and on-site review shall be reviewed collectively by the Superintendent in considering approval or denial of certification.

(10) If approved, an RTC's certification lasts for two years from the date of approval and is subject to monitoring protocols as described in Subsection R277-926-4.

(11) If the Superintendent denies an RTC's application for certification, the Superintendent shall provide the reason for the denial in writing to the RTC.

(12) If an RTC operates a special needs program at more than one site, the RTC shall submit a separate certification application for each site.

 

R277-926-4. Certification Maintenance and General Monitoring.

(1) An RTC that has been certified is subject to periodic monitoring and review.

(2) An RTC shall ensure general compliance with the requirements of this rule, state law, and federal law by providing the Superintendent with:

(a) documentation, including:

(i) applicable student and program records; and

(ii) information for which the Board is responsible;

(b) access to on-site visits at any time; and

(c) any combination of Subsections (a) and (b).

(3) An RTC that has been certified shall comply with all requirements of this rule, State of Utah law and federal law, including the following requirements:

(a) collaborating with an LEA of origin to maintain and facilitate a transition plan for each student served by the RTC that includes:

(i) a list of a relevant course of study related to needs and ability of the student;

(ii) a list of all required transition assessments needed;

(iii) a plan for transitions to and from restrictive placement; and

(iv) age of majority documentation in a form approve by the Superintendent;

(b) collaborating with the LEA of origin on a student's IEP through:

(i) timely and appropriate IEP progress monitoring;

(ii) documentation of a student's specially designed instruction and related services including:

(A) service provisions;

(B) treatment notes; and

(C) service logs;

(iii) sign-in or attendance sheets for each IEP meeting held for a student; and

(iv) adhering to all other applicable state and federal laws;

(c) when appropriate, establishing a discipline guide consistent with IDEA that includes a behavior intervention plan with the following minimum components:

(i) general behavior goals;

(ii) crisis de-escalation and restraint training and training frequency;

(iii) restraint and seclusion policies and procedures consistent with state and federal law; and

(iv) parental notification policies requiring notice within at least 24-hours.

(4) An RTC shall notify the Superintendent within 30 days if the RTC makes any material change to the RTC's special education program.

(5) If a certified RTC is found to be noncompliant with a provision of R277-926, State of Utah law, or federal law, the Superintendent may suspend or revoke the RTC's certification as outlined in Subsection R277-926-5.

 

R277-926-5. Revocation of Certification.

(1) The Superintendent may revoke an RTC's certification at any time if the RTC fails to comply with the requirements of R277-926, State of Utah law, or federal law.

(2) The Superintendent shall provide the reason for revocation of the RTC's certification in writing to the RTC and provide a 30-day cure period before revocation may occur.

(3) If an RTC does not cure identified non-compliance described in Subsection (2) within the 30-day cure period, the Superintendent shall revoke the RTC's certification.

(4) If an RTC's certification is revoked, the RTC:

(a) may not receive new students into the RTC's special education program; and

(b) may maintain the students currently attending the RTC's special education program.

(5) An RTC may reapply for certification within 12 months following the RTC's completed corrective action in response to the Superintendent's reasons for revocation described in Subsection (2).

 

R277-926-6. Request for Review.

(1) A public education agency that contracts with a certified RTC may request the Superintendent to review the status of the RTC's certification.

(2) The Superintendent shall establish a mechanism for referrals, complaints, and information related to the status of an RTC's certification.

(3) The Superintendent shall conduct a review pursuant to this in accordance with all requirements in Sections R277-926-4 and R277-926-5.

 

R277-926-7. RTC Appeal of Certification Application Denial or Certification Revocation.

(1) An RTC may file an appeal to the Board of an adverse decision of the Superintendent resulting in the denial of application or revocation of a certification.

(2) An appeal pursuant to this rule shall be an informal adjudication.

(3) An appeal described in Subsection (1) shall be made in writing and within 30 days of the date of the Superintendent's action.

(4) The Board may:

(a) review the appeal as a full board; or

(b) refer the appeal to the Board's audit committee to make a recommendation to the Board for action.

 

KEY: residential treatment centers, special education, certification

Date of Enactment or Last Substantive Amendment: 2019

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53E-3-401(4)

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