6A-6.03312: Discipline Procedures for Students with Disabilities
6A-6.0333: Surrogate Parents
6A-6.0361: Contractual Arrangements With Nonpublic Schools
PURPOSE AND EFFECT: Rule 6A-6.03312, F.A.C., is amended to align the rule with Section 1003.571, Florida Statutes, and the federal regulations at 34 CFR §300.530(e)(1). Rule 6A-6.0333, F.A.C., is amended to align the rule with Sections 39.0016(3)(b) and 1003.571, Florida Statutes, and the federal regulations at 34 CFR §300.519, regarding assignment of a surrogate parent to an eligible student with a disability, and to remove the requirement related to gifted students. Rule 6A-6.0361, F.A.C., is amended to comply with the requirement in Section 1003.57(3)(d), Florida Statutes, that the Department of Education adopt by rule procedures related to residential placement of students with disabilities and to update references, including services to infants and toddlers. The effect of all proposed amendments is to ensure consistency between Florida statute and federal regulations.
SUMMARY: The proposed revision to Rule 6A-6.03012, F.A.C., establishes ten school days as the timeline for school districts to conduct manifestation determinations. The proposed revision to Rule 6A-6.0333, F.A.C., establishes the timeline, procedures, and training requirements for assigning a surrogate parent to an eligible student with a disability and removes the requirements with regard to gifted students. The proposed revision to Rule 6A-6.0361, F.A.C., establishes procedures for written notification to school districts regarding the placement of students with disabilities in private residential care facilities by the Department of Children and Family Services, the Agency for Persons with Disabilities, and the Agency for Health Care Administration; incorporates services to children with disabilities, ages birth through two; and update references to ensure accuracy of content.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 1001.02(1), 1001.42, 1003.571 FS.
LAW IMPLEMENTED: 39.0016, 1001.42, 1003.57(3), 1003.571, 1003.58, 1011.62 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: February 15, 2011, 8:30 a.m.
PLACE: State College of Florida Manatee-Sarasota, 5840 26th St. W., Bradenton, FL 34207
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Bambi Lockman, Chief, Bureau of Exceptional Education and Student Services, PreK-12 Public Schools, Department of Education, 325 West Gaines Street, Room 614, Tallahassee, FL, (850)245-0475
THE FULL TEXT OF THE PROPOSED RULE IS:
6A-6.03312 Discipline Procedures for Students with Disabilities.
For students with disabilities whose behavior impedes their learning or the learning of others, strategies, including positive behavioral interventions and supports to address that behavior must be considered in the development of their individual educational plans (IEPs). School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the requirements and procedures in this rule, is appropriate for a student with a disability who violates a code of student conduct.
(1) through (2) No change.
(3) Manifestation determination. A manifestation determination, consistent with the following requirements, must be made within ten (10) school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct.
(a) through (e) No change.
(14) through (17) No change.
Rulemaking Specific Authority 1001.02(1), (2)(n), 1003.01(3), 1003.31(3), 1003.571, 1006.09 FS. Law Implemented 1001.03(8), 1001.42(4)(l), 1003.01, 1003.31(3), 1003.57, 1003.571, 1006.09 FS. HistoryNew 9-20-04, Amended 12-22-08,________.
Cf. P.L. 105-17, 20 USC 1401, 1414, and 1415
(Substantial rewording of Rule 6A-6.0333 follows. See Florida Administrative Code for present text).
6A-6.0333 Surrogate Parents.
A surrogate parent is an individual appointed to act in the place of a parent in educational decision-making and in safeguarding a students rights under the Individuals with Disabilities Education Act and Section 39.0016, Florida Statutes, when no parent can be identified; the students parent, after reasonable efforts, cannot be located by the school district; the student is a ward of the State under State law; the student is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 1143a(6)); or a court of competent jurisdiction over the student has determined that no person has the authority, willingness, or ability to serve as the educational decision maker for the student without judicial action. In addition to the requirements of Section 39.0016, Florida Statutes, the following requirements regarding the appointment of a surrogate parent for a student who has or is suspected of having a disability apply.
(1) Appointment of a surrogate parent. A surrogate parent for a student who is eligible for or who is suspected of being eligible for special programs made available through a school district or agency under contract with the school district shall be appointed by the districts school superintendent not more than thirty (30) days after the school district determines that the student needs a surrogate parent. The surrogate parent for a student who is eligible for or who is suspected of being eligible for special programs made available through a contract from the Department of Education shall be appointed by the individual specified in the contract. In the case of a student who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the students case, provided the surrogate meets the qualifications in subparagraph (3)(b)2. of Section 39.0016, Florida Statutes.
(2) Compensation of a surrogate parent. A school district may compensate persons appointed as surrogate parents. A person acting as a surrogate parent is not an employee of the school district or Department of Education contracted program solely because he or she is paid by the school district or Department of Education contracted program to serve as a surrogate parent.
(3) Unaccompanied homeless youth. In the case of a student who is an unaccompanied homeless youth, appropriate staff of emergency or transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to the requirements in subparagraph (3)(b)2. of Section 39.0016, Florida Statutes, until a surrogate can be appointed who meets all of the requirements in subparagraph (3)(b)2. of Section 39.0016, Florida Statutes.
Rulemaking Specific Authority 1001.02(1), 1003.01(3), 1003.571, 1006.09 FS. Law Implemented 39.0016, 1001.03(8). 1001.42(4)(1), 1003.01(3) (a), (b), 1003.57, 1003.571 FS. HistoryNew 6-28-83, Formerly 6A-6.333, Amended 12-22-08,________.
C.F. P.L. 94-142 (20 U.S.C. 1415(b)(1)(B)). Regulation 300.514, C.F.R.
(Substantial rewording of Rule 6A-6.0361 follows. See Florida Administrative Code for present text).
6A-6.0361 Contractual Agreements Arrangements With Nonpublic Schools and Residential Facilities.
(1) Requirement for contractual agreement.
(a) Each school district shall provide special education and related services to an exceptional student with a disability through a contractual agreement with an approved nonpublic school or community facility under the following circumstances:
1. When the school district has determined that no special educational program offered by it, a cooperating school district, or a state agency can adequately provide the educational program for the student, or
2. For the provision of the educational component of a residential placement for an exceptional student with a disability when such a placement is made by another public agency for the primary purpose of addressing residential or other non-educational needs in accordance with subsections (3) and (4) of Section 1003.57, Florida Statutes. The students individual educational plan (IEP) developed in accordance with Rule 6A-6.03028, F.A.C., may reflect that the residential placement is not required in order for the student to benefit from special education which could otherwise be provided by the school district during the day.
(b) Each school district may provide special education and related services to an exceptional student with a disability through a contractual agreement with an approved nonpublic school or community facility for the provision of a non-residential interagency program that includes the provision of educational programming in accordance with the students IEP.
(c) In collaboration with the Part C Early Steps Program, each school district may provide early intervention services for an infant or toddler with a disability through a contractual agreement with approved nonpublic or community facilities when the school district has determined that a nonpublic or community facility can provide appropriate services for the infant or toddler. The early intervention services shall be provided in accordance with an individualized family support plan (IFSP) developed in accordance with Rule 6A-6.03029, F.A.C.
(d) The requirements of this subsection do not apply when a school district provides educational assessments and a program of instruction and special education services to students in the custody of Department of Juvenile Justice programs who are served in residential and nonresidential care facilities and juvenile assessment facilities located in the school district in accordance with Section 1003.52(3), Florida Statutes.
(2) Placement in a residential facility of a student with a disability by a public agency other than the school district.
(a) In accordance with subsection (3) of Section 1003.57, Florida Statutes, an exceptional student with a disability may be placed in a private residential care facility by the Department of Children and Families, Agency for Persons with Disabilities, or Agency for Health Care Administration. For the purposes of this subsection, placement means the funding or arrangement of funding by an agency for all or a part of the cost for an exceptional student with a disability to reside in a private residential care facility.
(b) The private residential care facility or a residential facility that is operated, licensed, or regulated by a public agency shall ensure that, within ten (10) business days of a student with a disability being placed in the facility, written notification of the placement is provided to the school district where the student is currently enrolled and counted for funding purposes under Section 1011.62, F.S., (sending school district) and the school district where the residential facility is located (receiving school district). If the student is not currently counted for funding purposes in the school district in which the legal residence of the student is located, the school district in which the legal residence of the student is located also shall be notified by the residential facility in writing within the required timeline. The placing agency shall collaborate with the residential facility to determine how that notification will be provided within the required timeline.
(c) Within ten business days after receiving the notification, the receiving school district must review the students IEP to determine if it can be implemented by the receiving school district or by a provider or facility under contract with the receiving school district, and notify the residential facility in writing of its decision to:
1. Provide educational instruction to the student;
2. Contract with another provider or facility to provide the educational instruction;
3. Contract with the private residential care facility in which the student has been placed to provide the educational instruction; or
4. Decline to provide or contract for educational instruction.
(d) If the receiving school district declines to provide or contract for the educational instruction, the school district of legal residence of the student shall provide or contract for the educational instruction to the student.
(e) The school district that provides the educational instruction shall report the student for funding purposes pursuant to Section 1011.62, Florida Statutes.
(f) In accordance with subsection (3) of Rule 6A-6.0334, F.A.C., the sending school district shall take reasonable steps to promptly respond to the residential facilitys request for transmittal of the students educational records. If the students placement in the residential care facility occurs while the notification and procedures regarding payment are pending, the student shall remain enrolled in the sending school district and the sending school district shall collaborate with the residential care facility to ensure that the student receives a free and appropriate public education, special education, and related services, including services comparable to those in the described in the current IEP, until the notification and procedures regarding payment are completed.
(3) Each school district is responsible for assuring the proposed program at the nonpublic school or community facility are appropriate to meet the educational needs of the exceptional student with a disability, or early intervention needs of the infant or toddler with a disability, placed through a contractual agreement. This subsection shall not be construed to limit the responsibility of agencies in the state other than the district school boards from providing or paying some or all of the cost of a free appropriate public education or early intervention services to be provided children with disabilities ages birth through twenty-one (21) years old.
(4) Before a contractual agreement with a nonpublic school or community facility is executed by the school district, the school district shall determine that the school or community facility meets the following criteria:
(a) The nonpublic school or community facility program is staffed by qualified personnel as defined in Rule 6A-1.0503, F.A.C., or appropriate licensing entities. Personnel in an out-of-state nonpublic school or community facility shall be certified or licensed in accordance with the standards established by the state in which the nonpublic school or community facility is located.
(b) For the appointment of persons as noncertificated instructional personnel, the governing body of the nonpublic school or community facility shall adopt the policies required in Rule 6A-1.0502, F.A.C.
(c) The nonpublic schools or community facilitys instructional school day and year shall be consistent with Section 1011.61, Florida Statutes, taking into account the number of school hours or school days provided by the school district.
(d) The nonpublic school or community facility maintains current sanitation and health certificates and fire inspections for each appropriate building and will be open for inspection by appropriate authorities.
(e) The nonpublic school or community facility fully complies with the school districts procedures to protect the confidentiality of student records and information and assures it will provide the parent, or the student whose rights have transferred upon reaching the age of majority (age 18), the right of access, copies, amendments and hearings as specified in Rule 6A-1.0955, F.A.C.
(f) The nonpublic school or community facility will designate a staff member to be responsible for the administration of the provisions of the contract and for the supervision of the educational program provided to each student, or early intervention services provided to each child age birth through two (2), under the contract.
(g) The nonpublic school or community facility has written procedures for admission, dismissal, and separation of students, if appropriate.
(h) The nonpublic school or community facility has a written description of the support services that are available and will be provided to each student placed under a contract in accordance with each students IEP or each childs IFSP.
(i) The nonpublic school or community facility has written policies concerning: care of the student in emergencies; clinical and administrative records; personnel policies; staff duties; fee schedules; food services; and insurance coverage.
(j) The school district has determined that the nonpublic school or community facility is in compliance with the Office for Civil Rights requirements with respect to nondiscrimination on matters related to race, sex, disability, or age.
(k) The nonpublic school or community facility has filed reports with the Department of Education as prescribed in Section 1002.42, Florida Statutes, if applicable.
(5) Contents of contract. A contract between a district school board and a nonpublic school or community facility to provide educational programs for an exceptional student with a disability, or early intervention services to a child with disability age birth through two (2), shall not extend beyond the school districts fiscal year and shall include at least the following:
(a) Written assurance that the nonpublic school or community facility is staffed by qualified personnel as defined by Rule 6A-1.0503, F.A.C., or an appropriate and identified licensing entity.
(b) A description of the scope of service provided by the nonpublic school or community facility and how it relates to the IEP of the exceptional student with a disability or the IFSP of the infant or toddler with a disability.
(c) Provision for reporting to appropriate school district personnel and the parent on the students progress in meeting the annual goals in accordance with the IEP or the childs and familys progress in meeting the major outcomes in accordance with the IFSP.
(d) Provision for appropriate school district personnel to review the program provided by the nonpublic school or community facility and to confer with the staff of the nonpublic school or community facility at reasonable times.
(e) Provision for reporting to appropriate school district personnel any non-attendance of the exceptional student with a disability or the infant or toddler with a disability.
(f) Provision for notifying appropriate school district personnel and the parent of the use of seclusion or restraint of the student, in accordance with Section 1003.573, Florida Statutes.
(g) The method of determining charges and sharing costs with other agencies for the placements under the contract, including the projected total cost to the school district.
(h) Identification of financial responsibility.
(i) Method of resolving interagency disputes. Such methods may be initiated by district school boards to secure reimbursement from other agencies.
(j) A schedule for review of the program being provided the exceptional student with a disability or the infant or toddler with a disability, through the contract.
(k) Provision for terminating the contract.
(l) Written assurance that the nonpublic school or community facility is in compliance with applicable provisions of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1974, and section 504 of the Rehabilitation Act of 1973.
(6) When contracting with a nonpublic school or community facility in accordance with paragraph (1)(a) of this rule, the school district shall be responsible for at least the following:
(a) Selecting an appropriate nonpublic school or community facility in consultation with the parent and other appropriate agency personnel.
(b) Providing for transportation for students age three (3) through twenty-one (21).
(c) Maintaining a case file including progress reports and periodic evaluations of the exceptional student with a disability, or infant or toddler with a disability.
(d) Verifying that the exceptional student with a disability, or the infant or toddler who has been determined eligible by the Part C Early Steps Program, is a resident of the school district and is enrolled in, or has made application for admittance to, a school district program.
(e) Providing for the cost of the students educational program or early intervention services as specified in the contract.
(f) Maintaining documentation of the qualifications of personnel in nonpublic schools or community facilities as required in this rule or by the appropriate licensing entity, including the out-of-field notification requirements of Section 1012.42, Florida Statutes.
(g) Providing an appropriate educational program for the student in the least restrictive environment based on an annual or more frequent review of the students IEP, or early intervention services in a natural environment based on six-month or more frequent review of the childs IFSP.
(h) Maintaining copies of the IEPs or IFSPs in the school district and providing copies of the IEPs of students who are in residential placements to the Department of Education, Bureau of Exceptional Education and Student Services.
(i) Reporting, data collection, and monitoring the use of seclusion or restraint of the student, in accordance with Section 1003.573, Florida Statutes.
(7) When an exceptional student with a disability, or infant or toddler with a disability, is enrolled in a nonpublic school or community facility program under a contractual arrangement for providing a special educational program or early intervention services as provided herein, the student, or infant or toddler, shall generate Florida Education Finance Program funds for the school district in the appropriate cost categories as established in Section 1011.62, Florida Statutes, under the following conditions:
(a) The nonpublic school or community facility program meets the criteria established in subsection (4) of this rule.
(b) The student is regularly attending the program, and the length of the school day and minimum number of days are in compliance with Florida Statutes.
(c) The student is appropriately identified as an exceptional student with a disability by the school district, or the infant or toddler has been determined eligible as an infant or toddler with a disability by the Part C Early Steps Program, as required by law, State Board Rules, and criteria and procedures adopted by the school district.
(d) An IEP or IFSP for the student has been developed as required by subsection (6) of Rule 6A-6.0331, F.A.C.
(e) Full-time equivalent student membership for each exceptional student with a disability, or infant or toddler with a disability, under a contractual arrangement is included in the school districts report of membership.
(f) Annually and prior to the first report of full-time equivalent membership for a student in a residential placement in a nonpublic school or community facility program, a copy of the contracts signed by all participating parties shall be filed with the Department of Education, Division of Public Schools, Bureau of Exceptional Education and Student Services, 325 West Gaines Street, Tallahassee, Florida 32399.
(8) When a school district contracts for the educational component of a residential placement for a group of students, one (1) contract with student names or individual contracts shall be filed.
(9) When an exceptional student with a disability is offered an appropriate educational program by the school district and the parent waives this opportunity in favor of a program selected by the parent, the parent shall assume full financial responsibility for the students education.
Rulemaking Specific Authority 1001.02, 1001.42 FS. Law Implemented 1001.42, 1003.57(3), 1003.571, 1003.58, 1011.62 FS. HistoryNew 6-17-74, Repromulgated 12-5-74, Amended 3-28-78, 8-8-78, 7-13-83, Formerly 6A-6.361, Amended 2-18-93,_________.
