TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT

CHAPTER 348. JUVENILE JUSTICE ALTERNATIVE EDUCATION PROGRAMS

The Texas Juvenile Justice Department (TJJD) proposes to repeal §§348.100 - 348.102, 348.104, 348.106, 348.108, 348.110, 348.112, 348.114, 348.116, 348.118, 348.120, 348.122, 348.124, 348.126, 348.128, 348.130, 348.132, 348.134, 348.136, 348.138, 348.200, 348.202, 348.204, and 348.206, relating to Juvenile Justice Alternative Education Programs.

SECTION-BY-SECTION SUMMARY

The repeal of §348.100 will allow for the content to be revised and republished as new §348.100.

The repeal of §348.101 will allow for the content to be revised and republished as new §348.104.

The repeal of §348.102 will allow for the content to be revised and republished as new §348.102.

The repeal of §348.104 will allow for the content to be revised and republished as new §348.200.

The repeal of §348.106 will allow for the content to be revised and republished as new §348.202.

The repeal of §348.108 will allow for the content to be revised and republished as new §348.204.

The repeal of §348.110 will allow for the content to be revised and republished as new §348.206.

The repeal of §348.112 will allow for the content to be revised and republished as new §348.208.

The repeal of §348.114 will allow for the content to be revised and republished as new §348.210.

The repeal of §348.116 will allow for the content to be revised and republished as new §348.212.

The repeal of §348.118 will allow for the content to be revised and republished as new §348.214.

The repeal of §348.120 will allow for the content to be revised and republished as new §348.216.

Sections 348.122, 348.124, 348.126, 348.128, and §348.130 are proposed for repeal to eliminate redundancy. Chapter 341 of this title addresses requirements for the use of restraints in non-residential settings within juvenile justice programs, which would include juvenile justice alternative education programs. These requirements do not need to be repeated in this chapter.

The repeal of §348.132 will allow for the content to be revised and republished as new §348.220.

The repeal of §348.134 will allow for the content to be revised and republished as new §348.222.

The repeal of §348.136 will allow for the content to be revised and republished as new §348.224.

The repeal of §348.138 will allow for the content to be revised and republished as new §348.106.

The repeal of §348.200 will allow for the content to be revised and republished within new §348.200.

Section 348.202 is proposed for repeal because TJJD does not provide an annual evaluation of JJAEPs. TJJD's evaluation of JJAEPs is addressed in §348.206, which will be renumbered as §348.300.

The repeal of §348.204 will allow for the content to be revised and republished within new §348.208.

The repeal of §348.206 will allow for the content to be revised and republished within new §348.300.

FISCAL NOTE

Mike Meyer, Chief Financial Officer, has determined that for each year of the first five years the repeals are in effect, there will be no significant fiscal impact for the state or for local governments as a result of enforcing or administering the repeals, under the assumption the repealed chapter will be readopted in modified form.

PUBLIC BENEFIT/COSTS

Marie Welsch, PhD, Lead JJAEP Performance Accountability Specialist, has determined that for each year of the first five years the repeals are in effect, the public benefit anticipated as a result of administering the repeals will be allowing for the adoption of a revised chapter.

Mike Meyer, Chief Financial Officer, has also determined that, assuming the repealed chapter will be readopted in modified form, there will be no effect on small businesses, micro-businesses, or rural communities and there will be no anticipated economic cost to persons who are required to comply with the repeals as proposed. No private real property rights are affected by the repeal of these sections.

GOVERNMENT GROWTH IMPACT

TJJD has determined that, during the first five years the repeals are in effect, the repeals will have the following impacts, provided the repealed chapter is readopted in modified form.

(1) The proposed repeals do not create or eliminate a government program.

(2) The proposed repeals do not require the creation of new employee positions or the elimination of existing positions at TJJD.

(3) Implementation of the proposed repeals does not require an increase or decrease in future legislative appropriations to TJJD.

(4) The proposed repeals do not require an increase or decrease in fees paid to TJJD.

(5) The proposed repeals do not create a new regulation.

(6) The proposed repeals do not expand or limit an existing regulation. The proposed repeals will permanently repeal several existing regulations. Specifically, §§348.122, 348.124, 348.126, 348.128, and 348.130 will be repealed and will not be readopted in modified form. However, as mentioned earlier in this notice, these sections are proposed for repeal to eliminate redundancy with Chapter 341, not to eliminate the requirements of the rules.

Additionally, §348.202 will be permanently repealed. The requirements contained in this section, relating to TJJD's obligation to complete an annual evaluation of JJAEPs, will not be readopted.

(7) The proposed repeals do not increase or decrease the number of individuals subject to the rules' applicability.

(8) The proposed repeals are not anticipated to positively or negatively affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted within 30 days after publication of this notice to Steve Roman, Policy Coordinator, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas 78711, or email to policy.proposals@tjjd.texas.gov.

SUBCHAPTER A. PROGRAM OPERATIONS

37 TAC §§348.100 - 348.102, 348.104, 348.106, 348.108, 348.110, 348.112, 348.114, 348.116, 348.118, 348.120, 348.122, 348.124, 348.126, 348.128, 348.130, 348.132, 348.134, 348.136, 348.138

STATUTORY AUTHORITY

The repeals are proposed under §221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code.

No other statute, code, or article is affected by this proposal.

§348.100.Purpose.

§348.101.Interpretation and Applicability.

§348.102.Definitions.

§348.104.Program Administration and Organization.

§348.106.Personnel Administration.

§348.108.Management Information System.

§348.110.Curriculum.

§348.112.Program Requirements.

§348.114.Student Attendance Accounting.

§348.116.Inter-Local Cooperation.

§348.118.Physical Plant.

§348.120.Security and Control.

§348.122.Personal Restraint Definitions.

§348.124.Mechanical Restraint.

§348.126.Requirements.

§348.128.Prohibitions.

§348.130.Documentation.

§348.132.Serious Incidents.

§348.134.Abuse, Exploitation and Neglect.

§348.136.Student Code of Conduct.

§348.138.Waiver or Variance to Standards.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800175

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014


SUBCHAPTER B. ACCOUNTABILITY

37 TAC §§348.200, 348.202, 348.204, 348.206

STATUTORY AUTHORITY

The repeals are proposed under Section 221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code.

No other statute, code, or article is affected by this proposal.

§348.200.Mission of Program.

§348.202.Annual Performance Evaluation.

§348.204.Assessment Reliability and Safeguards.

§348.206.Performance Reports.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800177

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014


CHAPTER 348. JUVENILE JUSTICE ALTERNATIVE EDUCATION PROGRAMS

The Texas Juvenile Justice Department (TJJD) proposes new §§348.100, 348.102, 348.104, 348.106, 348.200, 348.202, 348.204, 348.206, 348.208, 348.210, 348.212, 348.214, 348.216, 348.218, 348.220, 348.222, 348.224, 348.300, and 348.400, relating to Juvenile Justice Alternative Education Programs.

SECTION-BY-SECTION SUMMARY

New §348.100 modifies and republishes information currently found in §348.100. The new section establishes the overall purpose of the chapter. Changes in the new section include only minor, non-substantive wording changes.

New §348.102 modifies and republishes information currently found in §348.102. The new section provides definitions for terms used in the chapter. Changes in the new section include: (1) adding definitions for Community Activities Officer, JJAEP Administrator, JJAEP Electronic Data Interchange Extract, Juvenile Probation Department, Juvenile Probation Officer, Juvenile Supervision Officer, Sending School District, and TJJD; (2) deleting definitions for Commission and Exit Reason; (3) clarifying that the term Intensive Physical Activity does not include activities required as part of a physical education class; and (4) clarifying that Chapter 37, Education Code, is the sole authorizing source for determining who is eligible to be served by a juvenile justice alternative education program (JJAEP).

New §348.104 modifies and republishes information currently found in §348.101. The new section establishes which programs are covered by this chapter and general rules for interpreting the chapter. Changes in the new section include: (1) specifying that this chapter applies to all JJAEPs operated under Section 37.011, Education Code, regardless of whether the JJAEP receives funds from TJJD for operating the JJAEP; (2) clarifying that the words "including" and "includes" mean that a non-exhaustive list will follow; (3) deleting the paragraph about use of headings; (4) removing redundant information relating to the expectation that a JJAEP must be operated in accordance with its policies and procedures; (5) removing the statement that indicated TJJD may publish a compliance resource manual to establish required guidelines, procedures, and documentation to ensure compliance with this chapter; (6) adding a requirement stating that any JJAEP policies and procedures required by this chapter must be adopted by the juvenile board; (7) adding that any requirement in this chapter to notify a student's parent, guardian, or custodian applies only if the student is under age 18 or if any of several exceptions apply to youth age 18 or older; and (8) adding that any notifications provided to a parent, guardian, or custodian without the written consent of a student who is age 18 or older must also be provided to the student.

New §348.106 modifies and republishes information currently found in §348.138. The new section addresses applying for a waiver or variance for any standard in this chapter. Changes in the new section include only minor, non-substantive wording changes.

New §348.200 modifies and republishes information currently found in §348.104. The new section establishes the duties of the JJAEP relating to operational policies, research studies, performance reviews, and staffing. The following paragraphs describe changes in the new section.

Changes relating to policies and procedures include: (1) adding a requirement for the JJAEP to submit its policies and procedures to TJJD for review no later than October 1 of each year and also upon request from TJJD; and (2) clarifying that the requirement for policies to be available to all staff applies to all JJAEP policies, not just to personnel-related policies (this provision, relating to policy access, was moved from §348.106).

Changes relating to memorandums of understanding include: (1) adding a requirement for the juvenile board to annually enter into an MOU with each participating school district; and (2) adding a requirement to submit the MOU to TJJD annually no later than October 1.

Changes relating to truancy and failure to attend include removing the requirement for the JJAEP to have written policies concerning truancy and failure to attend. A new section on reporting absences to the sending school district has been added to §348.210.

Changes relating to research studies include removing specific provisions relating to research programs and adding a requirement for the JJAEP to adhere to 37 TAC §341.200 as it relates to participation in research studies and experimentation. The provisions relating to research studies and experimentation were moved from §348.106.

Changes relating to performance reviews include: (1) clarifying that the juvenile board and the JJAEP administrator must conduct (rather than participate in) an annual performance review; (2) clarifying that the review must include the number of new arrests or referrals for youth who attended the JJAEP (rather than recidivism rates for students who exit); (3) clarifying that the review must include the number of restraints by type; (4) clarifying that the review must include the number of students eligible for special education services (rather than students with disabilities); (5) adding that the performance review must be documented in a report that includes the data listed in this standard, an analysis of the program's effectiveness, and any changes implemented as a result of the review; and (6) adding that the report must be submitted to TJJD by October 1.

Changes relating to management reviews include clarifying that one of the purposes of the JJAEP management review is for the JJAEP administrator to assess certain topics (i.e., safety and security, inter-local cooperation, and student code of conduct) and identify any needed changes.

Changes relating to the JJAEP administrator include clarifying that the bachelor's degree held by the JJAEP administrator must be from an institution that is accredited by an organization recognized by the Texas Higher Education Coordinating Board.

Changes relating to instructional staff include: (1) removing the requirement for instructional staff to hold a bachelor's degree; (2) adding that the only individuals who may count toward the instructional-staff-to-student ratio are teachers (must be certified, be highly qualified, or meet the teaching requirements of the organization providing education services), certified educational aides, and substitute teachers; (3) adding that substitute teachers who are not JJAEP staff members must be provided the JJAEP student code of conduct and policies that directly affect their duties and must sign an acknowledgment of receipt; and (4) removing the preferred ratio for instructional staff. The rule now provides only the required ratio, which is unchanged.

Changes relating to caseworkers include: (1) removing the preferred ratios for caseworkers. The rule now provides only the required ratio, which is unchanged; (2) clarifying that the provision allowing any "additional" caseworker to be present for less than a full day applies to only one caseworker (rather than to all caseworkers beyond the first one); and (3) clarifying that a substitute caseworker is required only when a caseworker is absent for more than three consecutive school days.

Changes relating to supervision staff include: (1) adding community activities officers and juvenile probation officers to the list of personnel who may be considered supervision staff; (2) removing caseworker aides from the list of personnel who may be considered supervision staff; and (3) adding that community activities officers who have received training in adolescent development and behavior, as well as juvenile probation officers, may participate in the administration of intensive physical activity (this is no longer limited to certified juvenile supervision officers (JSOs)); and (4) removing the provision that allowed optional JSO certification for county-employed staff who primarily supervise students. To correspond with recent changes in 37 TAC Chapter 341, the section now requires all JJAEP staff who may be required to supervise or transport students, whether employed by the county or not, to be certified by TJJD as a community activities officer unless the person holds another TJJD certification or is defined as a professional (e.g., teacher or educational aide).

Changes relating to operational staff include removing the preferred ratios. The rule now provides only the required ratio for operational staff, which is unchanged.

General changes to §348.200 include: (1) clarifying that electronic records are acceptable for documenting whether staff members are present or absent; (2) adding a reference to 37 TAC Chapter 355 for the definition of a mental health provider; and (3) moving certain provisions relating to the mission of the JJAEP from §348.200 to this section. Clarified that the mission statement must be included in the JJAEP's policies and procedures manual and (rather than and/or) in the student code of conduct.

New §348.202 modifies and republishes information currently found in §348.106. The new section establishes requirements for personnel records, new employee training, and criminal history checks. Changes in the new section include: (1) clarifying that the JJAEP administrator must have access to personnel files (rather than ensure files are maintained) for each person included in a program ratio; (2) removing all documents listed as required items (i.e., criminal history searches, training records, personnel actions, and education transcripts) in the personnel file, with the exception of documentation verifying that any required certifications are current; (3) adding a requirement for the JJAEP administrator to have access to documentation verifying that each person working at the JJAEP who is included in any program ratio has completed all training required by this chapter; (4) clarifying that the orientation training is required for any staff member who is expected to work at the JJAEP for six weeks or longer; (5) adding that documentation of orientation training must include the staff members' signatures on training sign-in sheets; (6) moving the provision relating to policy access to §348.200 from this section; removing the requirement for the JJAEP to maintain documentation of staff members' acknowledgment that they received the policies; (7) removing all requirements relating to criminal history searches, disqualifying criminal history, and criminal history records retention; and (8) adding that the criminal history and background check requirements and criminal history standards established by 37 TAC Chapter 344 apply to JJAEPs.

Additional changes included in §348.202 include several revisions to the topics that must be covered in orientation training, such as: (1) adding serious incidents to the topic that addresses identification and reporting of child abuse, neglect, and exploitation; (2) adding procedures for reporting suicidal ideation or behavior to the topic that addresses crisis intervention; and (3) removing the topic relating to sexual harassment.

New §348.204 modifies and republishes information currently found in §348.108. The new section identifies the types of data and source documentation JJAEPs are required to keep. Changes in the new section include: (1) removing the list of data elements the JJAEP must maintain; (2) adding a requirement that the JJAEP must maintain the data specified on the JJAEP Electronic Data Interchange (EDI) Specifications; (3) adding a requirement for TJJD to discuss with juvenile probation departments any proposed changes to the JJAEP EDI Specifications before any substantive changes are made; (4) adding that the required data must be entered into the juvenile probation department's automated case management system unless an alternate data entry system has been approved by TJJD; (5) specifying that the JJAEP EDI Extract must be submitted to TJJD no later than the 10th calendar day of each month following the reporting period; (6) adding a requirement for JJAEPs to submit the JJAEP Monthly Activity Report to TJJD no later than the 10th calendar day of each month via TJJD's Internet database; and (7) clarifying that the documentation required for each student includes the grade level upon entry to the JJAEP.

New §348.206 modifies and republishes information currently found in §348.110. The new section establishes the courses and areas of study required at JJAEPs. Changes in the new section include: (1) removing the list of recommended courses; and (2) clarifying that the purpose of the accelerated component of the instructional program is to support credit recovery at the high school level and to regain academic and social skills at the elementary and middle school levels.

New §348.208 modifies and republishes information currently found in §348.112. The new section establishes requirements for programming not directly related to the curriculum. Changes in the new section include: (1) clarifying that the JJAEP collaborates with the sending school district to ensure that appropriate special education services and English as a second language services are provided to eligible students; (2) adding that the JJAEP must maintain the most recent full and complete ARD meeting paperwork, the manifestation determination ARD meeting paperwork, and the most recent evaluation of special education eligibility; (3) adding that the JJAEP must maintain documentation of language proficiency assessment committee determinations; (4) adding a section requiring the JJAEP to provide appropriate services to students eligible for services under Section 504 of the Rehabilitation Act and to maintain documentation of Section 504 eligibility determinations; (5) moving the section relating to testing safeguards from §348.204 to this section; (6) adding that the policies relating to testing safeguards must address confidentiality of test results, a prohibition on making copies (rather than just releasing copies) of the test, and a prohibition on unauthorized persons receiving electronic or hard copy test results; and (7) adding a requirement for the JJAEP to adhere to all standardized testing protocols required by the Texas Education Agency.

Additional changes included within §348.208 include: (1) moving the requirement related to administration of the TJJD-selected pre- and post-tests in reading and math from §348.202 to this section; (2) changing the pre- and post-test requirement such that it will now apply to students who will be enrolled in the JJAEP for at least 75 days (rather than 90 days); (3) specifying that the post-test must be administered no sooner than 60 days after enrollment; (4) removing the requirement for scores on each section of the GED exam to be certified by a GED examiner; (5) adding that if a parent refuses to sign the authorization to consent to medical treatment, the JJAEP must maintain documentation indicating the refusal; (6) adding that the policies addressing extreme weather at JJAEPs with intensive physical activity programs must be written and must address humidity level, along with temperature, in determining when outside activity is not allowed; (7) changing "registered nurse" to "advanced practice nurse" in the list of medical professionals who are authorized to conduct pre-participation physical evaluations; and (8) clarifying that pre-participation exam documentation may indicate that a student has a condition that limits, but does not prohibit, participation in intensive physical activity and that the JJAEP must adhere to any such limitations.

New §348.210 modifies and republishes information currently found in §348.114. The new section establishes requirements relating to a student's status as present or absent. Changes in the new section include: (1) clarifying that a student's withdrawal date cannot be a date on which the student was present; (2) clarifying that the requirement for a student to be present for at least four hours to qualify as an attendance day applies during the regular school year; (3) clarifying that a student must be placed on inactive status when admitted to juvenile detention but only if the student is not permitted to attend the JJAEP; (4) clarifying that absences due to an illness or other medical reason are to be counted as inactive status if the student is absent for four consecutive school days, although the date the inactive status begins is the first date the student was absent, if supported by verification documentation; (5) adding that documentation verifying an absence due to illness or other medical reasons may be provided by an advanced practice registered nurse (in addition to physicians and physician assistants); (6) clarifying that when a student is absent for at least 10 consecutive school days, the student is placed on inactive status even if the 10 days roll over to the start of the next semester attended by the student; (7) clarifying that if documentation showing the start date of an event that qualifies as inactive status is not provided, inactive status may not begin until the 11th consecutive school day of absence; (8) clarifying that the requirement to withdraw a student after 30 consecutive days on inactive status applies even if the 30 days roll over to the start of the next semester attended by the student; and (9) adding a requirement for the JJAEP to have written policies that specify which staff member is responsible for reporting student absences to the home school, which must occur at least once per week.

New §348.212 modifies and republishes information currently found in §348.116. The new section describes information-sharing and cooperation with the school district, juvenile probation department, and parent/guardian/custodian. Changes in the new section include: (1) removing the requirement for the JJAEP to notify the parent, guardian, or custodian of a student's enrollment in a JJAEP; (2) clarifying that the requirement to notify the parent, guardian, or custodian of a youth's withdrawal from the JJAEP must be made prior to the withdrawal date unless that date is not known and that the requirement does not apply when the parent, guardian, or custodian withdraws his/her child; (3) clarifying that the exit transition plan must include all information regarding courses in progress or completed, current grades for ongoing courses, and number of attendance days and absent days; (4) removing the requirement for the exit transition plan to include academic and behavioral improvements and "information necessary for the student's continued success;" (5) adding a requirement for the JJAEP to maintain written verification that the exit transition plan was sent to the receiving school district; (6) adding a requirement to provide a copy of the exit transition plan to the student; (7) removing the requirement for the JJAEP to provide the receiving school district with "any other records" upon the student's transition back to that district; and (8) clarifying that the JJAEP must have policies that address the delivery of testing materials to and from the JJAEP only if the statewide assessment is administered on-site.

New §348.214 modifies and republishes information currently found in §348.118. The new section establishes basic requirements for complying with health and fire codes and providing adequate classroom space and fixtures. Changes in the new section include: (1) clarifying that the JJAEP must conform to all applicable federal, state, and (rather than and/or) local codes; and (2) adding that the JJAEP must maintain documentation of the rated capacity for the entire building, in addition to each classroom; (3) adding that all fixtures, including any emergency lighting, must be in working order; (4) adding that repairs must be made promptly to all furniture, equipment, and fixtures currently in use that are not in safe working order; and (5) adding that the classroom space and common areas must provide sufficient seating and desks or tables.

New §348.216 modifies and republishes information currently found in §348.120. The new section establishes requirements relating to safety/security, transportation, and emergencies. Changes in the new section include: (1) clarifying that policies must require appropriate auto liability insurance when staff members transport students in personal vehicles only if such transportation is allowed; (2) adding active shooter events to the list of emergency situations that must be addressed in the JJAEP's policies and procedures; (3) clarifying that at least two staff members who are certified in CPR and first aid must be in close proximity to the students at all times when students are present at the JJAEP campus (rather than on duty at all times); (4) adding that the JJAEP's policies must prohibit use of a locked room for disciplinary removals from the classroom; (5) adding that, if pat-down searches are used, they must be conducted by a staff member of the same gender (rather than sex) as the student unless an exception is approved and documented by the JJAEP administrator; (6) adding that anal and genital body cavity searches are prohibited; (7) clarifying that disciplinary reports must include the discipline imposed, if any (rather than the outcome); (8) specifying that disciplinary reports must be sent to the JJAEP administrator no later than the next school day (rather than within 24 hours or the next working day); and (9) removing the provisions relating to who may possess weapons within the JJAEP, which is primarily addressed by state law.

New §348.218 establishes that requirements relating to restraints as published in 37 TAC Chapter 341 apply to JJAEPs.

New §348.220 modifies and republishes information currently found in §348.132. The new section requires JJAEPs to follow other TJJD standards relating to serious incidents. Changes in the new section include clarifying that requirements relating to serious incidents are contained in 37 TAC Chapter 358 only (rather than in Chapters 358 and 350).

New §348.222 modifies and republishes information currently found in §348.134. The new section requires JJAEPs to follow other TJJD standards relating to abuse, neglect, and exploitation and requires JJAEPs to have a zero-tolerance policy regarding sexual abuse. Changes in the new section include: (1) clarifying that requirements relating to abuse, neglect, and exploitation are contained in 37 TAC Chapter 358 only (rather than in Chapters 358 and 350); and (2) specifying that that the zero-tolerance policies and practices of the JJAEP are concerning sexual abuse, as defined in TAC Chapter 358 (rather than in accordance with the Prison Rape Elimination Act of 2003).

New §348.224 modifies and republishes information currently found in §348.136. The new section establishes a requirement for adoption and annual review of the student code of conduct and lists the topics that must be addressed. Changes in the new section include: (1) adding that the student code of conduct must be adopted annually by the juvenile board; (2) adding that documentation must be sent to TJJD annually by October 1 verifying that the annual review of the student code of conduct was completed; (3) clarifying that the student code of conduct must be readily accessible to every JJAEP staff member (rather than requiring staff to be provided a copy); (4) specifying that JJAEP staff members' annual acknowledgment of having read and understanding the student code of conduct must occur no later than the first day of each school year; (5) removing the requirement for disciplinary procedures to be carried out promptly; (6) specifying that the student code of conduct must describe prohibited conduct as minor or major violations and must list the corresponding consequences available for each violation; (7) specifying that the description of the disciplinary process must include safeguards designed to promote consistent application of the process; (8) clarifying that disciplinary removals from the classroom must be with staff supervision; (9) clarifying that the student code of conduct must include the due-process procedures used to issue discipline; (10) adding physical exercises imposed for intimidation to the list of prohibited sanctions; (11) adding that physical exercise may not be used for discipline unless the JJAEP operates an intensive physical activity program and adheres to certain stated conditions; and (12) specifying that information relating to the JJAEP's policy on sexual abuse must be included in the student code of conduct. This replaces a requirement to have policies and procedures regarding the Prison Rape Elimination Act.

Additional changes included within §348.224 include adding the following as items that must be stated in the student code of conduct: (1) which issues are grievable and not grievable; (2) the method(s) by which students may obtain and submit a grievance without the assistance or permission of staff; (3) retaliation by staff is prohibited; (4) the student will receive a written response within five school days; (5) the parent, guardian, or custodian will be provided a copy of a grievance and the response upon request; (6) the deadline for a student to submit an appeal, which must be no earlier than five school days after receiving the initial response; and (7) the student will receive a response within 10 school days after submitting an appeal.

New §348.300 modifies and republishes information currently found in §348.206. The new section requires TJJD to complete an assessment of JJAEP performance. Changes in the new section include: (1) clarifying that the performance assessment report is not limited to covering only mandatory JJAEPs (i.e., those who are required by law to operate); (2) adding that the performance assessment report addresses the factors identified in the most recent General Appropriations Act; (3) removing the specific list of factors to be addressed in the report; (4) adding that TJJD provides a copy of the report to each JJAEP administrator and each chief administrative officer; (5) specifying that the administrator of a mandatory JJAEP must provide a copy of the report to the superintendent of each participating school district (rather than choosing between the superintendent and the school board chairman); and (6) removing the requirement for the administrator at a mandatory JJAEP to provide a copy of the report to the regional education service center representing the area served by the JJAEP.

New §348.400 establishes basic requirements for TJJD to provide funding to JJAEPs.

FISCAL NOTE

Mike Meyer, Chief Financial Officer, has determined that for each year of the first five years the new sections are in effect, there will be no significant fiscal impact for the state or for local governments as a result of enforcing or administering the sections.

PUBLIC BENEFIT/COSTS

Marie Welsch, PhD, Lead JJAEP Performance Accountability Specialist, has determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of administering the sections will be the promotion of successful youth outcomes and the availability of clarified and up-to-date rules.

Mr. Meyer has also determined that there will be no effect on small businesses, micro-businesses, or rural communities and there will be no anticipated economic cost to persons who are required to comply with the sections as proposed. No private real property rights are affected by adoption of these sections.

GOVERNMENT GROWTH IMPACT

TJJD has determined that, during the first five years the proposed rules are in effect, the rules will have the following impacts.

(1) The proposed rules do not create or eliminate a government program.

(2) The proposed rules do not require the creation or elimination of employee positions at TJJD.

(3) The proposed rules to do not require an increase or decrease in future legislative appropriations to TJJD.

(4) The proposed rules do not require an increase or decrease in fees paid to TJJD.

(5) The proposed rules do not create new regulations.

(6) The proposed rules do not repeal an existing regulation. The proposed rules do contain changes that affect the actions required for compliance with the rules. Some changes within the proposed rules will add responsibilities; some will limit or remove responsibilities. All such changes are itemized earlier in this notice in the section-by-section summary.

(7) Although these rules may appear to increase the number of individuals required to obtain a certification with TJJD, they do not. Individuals who supervise or transport juveniles in a non-secure setting within a juvenile justice program, which includes a JJAEP, are required to obtain a certification under recently adopted changes to 37 TAC Chapters 341 and 344. The changes in this chapter are designed to ensure consistency with those requirements. The requirement to obtain this certification is based on TJJD's statutory obligation to adopt educational, training, and certification standards for court-supervised community-based program personnel. Section 221.002(a)(3), Human Resources Code.

Additionally, the change that would make this chapter applicable to a JJAEP that does not receive JJAEP-specific funds from TJJD does not expand the applicability to any new JJAEPs currently in operation. As far as TJJD is aware, all JJAEPs in Texas are receiving JJAEP-specific funds from TJJD. The statutory responsibility of TJJD is to establish minimum standards for all JJAEPs in Texas. Section 221.002(a)(5), Education Code.

(8) The proposed rules are not anticipated to positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted within 30 days after publication of this notice to Steve Roman, Policy Coordinator, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas 78711 or to policy.proposals@tjjd.texas.gov.

SUBCHAPTER A. PURPOSE, DEFINITIONS, AND APPLICABILITY

37 TAC §§348.100, 348.102, 348.104, 348.106

STATUTORY AUTHORITY

The new sections are proposed under Section 221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code.

No other statute, code, or article is affected by this proposal.

§348.100.Purpose.

This chapter establishes minimum operational, programmatic, and educational standards for juvenile justice alternative education programs in Texas.

§348.102.Definitions.

When used in this chapter, the following words and terms have the following meanings unless the context clearly indicates otherwise.

(1) Absent Days--The actual number of instructional days a student enrolled in the JJAEP is not in attendance for a minimum of four hours.

(2) Attendance Days--The actual number of instructional days a student enrolled in the JJAEP is in attendance for a minimum of four hours.

(3) Community Activities Officer--Has the meaning assigned by §344.100 of this title.

(4) Inactive Status--Attendance status assigned to a student in which the student remains enrolled but is not counted as absent or present.

(5) Intensive Physical Activity--Rigorous physical activity that involves rhythmic, repetitive physical movement that uses large muscle groups and results in an increase in heart rate and respiration. This term does not include activities required as part of a physical education class.

(6) JJAEP Administrator--A juvenile probation department employee designated by the chief administrative officer or governing board of a juvenile probation department as the person responsible for the overall management of the JJAEP.

(7) JJAEP Electronic Data Interchange (EDI) Extract--An automated process to extract and submit modified case records from the juvenile probation department's case management system to TJJD.

(8) JJAEP Staff Member--Any full-time, part-time, temporary, or seasonal employee or volunteer performing JJAEP-related duties.

(9) Juvenile Justice Alternative Education Program (JJAEP)--An educational program operated by the juvenile board designated to serve students pursuant to Chapter 37, Education Code.

(10) Juvenile Probation Department (Department)--Has the meaning assigned by §344.100 of this title.

(11) Juvenile Probation Officer--Has the meaning assigned by §344.100 of this title.

(12) Juvenile Supervision Officer--Has the meaning assigned by §344.100 of this title.

(13) Sending School District--The school district that sends the notice of expulsion and/or documentation needed for a student to enroll in a JJAEP.

(14) TJJD--Texas Juvenile Justice Department.

§348.104.Interpretation and Applicability.

(a) Use of the Words "Including" and "Includes." When used in this chapter, the words "including" and "includes" are to be understood as introducing a non-exhaustive list, unless the context clearly indicates otherwise.

(b) Applicability. This chapter applies to JJAEPs operated under Section 37.011, Education Code.

(c) Records Retention. For purposes of this chapter, any standard that requires documentation to be maintained but does not specify the length of the retention period means at least two years past the end of the school year in which the student exited the JJAEP unless the local records retention schedule specifies a longer retention period.

(d) Policies and Procedures. Any policy or procedure required by this chapter must be established by the juvenile board that is responsible for the operation of the JJAEP.

(e) Parent Notifications.

(1) Any requirement in this chapter for the JJAEP to provide a notice to a student's parent, guardian, or custodian applies only if:

(A) the student is under 18 years of age; or

(B) the student is 18 years of age or older and:

(i) has provided written consent;

(ii) the student has a disability and has authorized the parent, guardian, custodian, or other designated individual to receive the notification under a supported decision-making agreement, as referenced in Chapter 1357, Estates Code;

(iii) the student is a dependent student as defined in Section 152 of the Internal Revenue Code and the notice relates to education services; or

(iv) the notification is one that the parent would have received under the Individuals with Disabilities Education Act before the student reached 18 years of age.

(2) Any notifications provided under paragraph (1)(B) of this subsection to a parent, guardian, or custodian without the written consent of a student who is at least 18 years of age must also be provided to the student.

§348.106.Waivers and Variances.

Unless expressly prohibited by another TJJD standard, an application for a waiver or variance of any standard in this chapter may be submitted in accordance with §349.200 of this title.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800178

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014


SUBCHAPTER B. PROGRAM OPERATIONS

37 TAC §§348.200, 348.202, 348.204, 348.206, 348.208, 348.210, 348.212, 348.214, 348.216, 348.218, 348.220, 348.222, 348.224

STATUTORY AUTHORITY

The new sections are proposed under Section 221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code.

No other statute, code, or article is affected by this proposal.

§348.200.Program Administration and Organization.

(a) Mission of the JJAEP.

(1) Academically, the mission of the JJAEP shall be to enable students to perform at grade level.

(2) The mission statement must be located in the JJAEP's policies and procedures manual and in the student code of conduct.

(b) Policies and Procedures.

(1) The JJAEP must:

(A) have written policies and procedures that govern all aspects of the operation of the program, including personnel, administration, programming, training, and any other program requirement included in this chapter;

(B) be operated according to the written policies and procedures; and

(C) submit the written policies and procedures to TJJD for review and comment at the following times:

(i) no later than October 1 of each year; and

(ii) upon request from TJJD.

(2) The written policies and procedures must be readily accessible to every JJAEP staff member.

(c) Memorandum of Understanding.

(1) The juvenile board must annually enter into a memorandum of understanding with each participating school district. The memorandum of understanding must address the items listed in Section 37.011(k), Education Code.

(2) The memorandum of understanding must be submitted to TJJD annually no later than October 1.

(d) Research Studies and Experimentation. The JJAEP must adhere to requirements established by §341.200 of this title regarding research studies and experimentation involving students in JJAEPs.

(e) JJAEP Performance Review. The juvenile board and the JJAEP administrator must conduct an annual performance review of the JJAEP between the conclusion of the school year and the beginning of the next school year to determine the effectiveness of the program.

(1) The information reviewed must include:

(A) the number of student entries and exits;

(B) the reason for student entries and exits;

(C) student academic performance;

(D) attendance rates;

(E) assessment scores for mathematics and reading;

(F) the number of new arrests or referrals for students who attended the JJAEP;

(G) the number of restraints by type (i.e., mechanical or personal); and

(H) the number of students eligible for special education services.

(2) A written report must be completed that includes the data listed in paragraph (1) of this subsection, an analysis of the JJAEP's effectiveness, and any changes to be implemented as a result of the review.

(3) The report must be submitted to TJJD no later than October 1.

(f) JJAEP Management Review. The JJAEP administrator must conduct an annual review of the overall operations of the JJAEP before the beginning of each school year.

(1) The review must include an assessment of the following topics and identify any needed changes:

(A) safety and security;

(B) inter-local cooperation; and

(C) the student code of conduct.

(2) Existing policies and procedures must be reviewed and assessed to determine their continued relevance to the mission of the JJAEP.

(3) Documentation of the review must be maintained.

(g) Required Staff Members.

(1) JJAEP Administrator. The juvenile board or chief juvenile probation officer must designate a JJAEP administrator. The JJAEP administrator must:

(A) hold a bachelor's degree from a college or university accredited by an organization recognized by the Texas Higher Education Coordinating Board;

(B) possess juvenile justice experience and/or education experience;

(C) ensure compliance with all applicable laws and rules related to JJAEPs; and

(D) ensure compliance with provisions of all contracts with TJJD related to JJAEPs.

(2) Instructional Staff Members.

(A) The JJAEP must maintain a ratio of at least one instructional staff member for every 24 enrolled students. Instructional staff members include only:

(i) teachers who are certified, are highly qualified, and/or meet the teaching requirements of the organization providing education services at the JJAEP;

(ii) certified educational aides; and

(iii) substitute teachers.

(B) The instructional staff members for the JJAEP must include at least one teacher certified by the State Board for Education Certification (SBEC).

(C) The JJAEP must provide at least the minimum number of special education teachers required by federal law.

(D) A special education teacher must be certified as a special education teacher by SBEC or be eligible to work as a special education teacher prior to obtaining certification, as allowed by SBEC.

(E) Upon entry into the JJAEP, substitute teachers who are not JJAEP staff members must be provided the JJAEP student code of conduct and JJAEP policies and procedures that directly affect their duties and sign an acknowledgment of receipt.

(3) Caseworkers.

(A) A caseworker must be a social worker, juvenile probation officer assigned to the JJAEP, counselor, or other mental health provider, as defined in Chapter 355 of this title.

(B) Caseworkers must meet the minimum professional requirements and be licensed or certified by the appropriate licensing board in their field.

(C) The JJAEP must maintain a ratio of at least one caseworker for every 50 enrolled students.

(i) At a JJAEP with 50 or fewer enrolled students, the caseworker must be present during all operational hours of the JJAEP, except as noted in clauses (vi) and (vii) of this subparagraph.

(ii) At a JJAEP with 51-100 enrolled students, one caseworker must be present during all operational hours of the JJAEP, except as noted in clauses (vi) and (vii) of this subparagraph. The second caseworker must be present for at least four of the JJAEP's daily operational hours, except as noted in clauses (vi) and (vii) of this subparagraph.

(iii) At a JJAEP with 101-150 enrolled students, two caseworkers must be present during all operational hours of the JJAEP, except as noted in clauses (vi) and (vii) of this subparagraph. The third caseworker must be present for at least four of the JJAEP's daily operational hours, except as noted in clauses (vi) and (vii) of this subparagraph.

(iv) At a JJAEP with 151-200 enrolled students, three caseworkers must be present during all operational hours of the JJAEP, except as noted in clauses (vi) and (vii) of this subparagraph. The fourth caseworker must be present for at least four of the JJAEP's daily operational hours, except as noted in clauses (vi) and (vii) of this subparagraph.

(v) At a JJAEP with more than 200 enrolled students, the number of caseworkers required to be present during all operational hours of the JJAEP follows the same pattern set forth in clauses (i) - (iv) of this subparagraph.

(vi) A substitute caseworker is not required when a caseworker is absent for three or fewer consecutive school days. A substitute caseworker is required if an absence is more than three consecutive school days.

(vii) A caseworker who must leave the JJAEP site to complete a JJAEP-related duty is considered present for purposes of calculating the ratio.

(4) Supervision Staff Members.

(A) The JJAEP must ensure an adequate number of supervision staff members are present during all operational hours.

(B) Supervision staff members include drill instructors, educational aides, security personnel, juvenile supervision officers, juvenile probation officers, community activities officers, and behavior management staff.

(C) Any staff member, excluding a certified physical education teacher, who participates in the administration of intensive physical activity must be a:

(i) juvenile supervision officer;

(ii) juvenile probation officer; or

(iii) community activities officer who has received training in adolescent development and behavior, as required by §341.402 of this title.

(D) Except for professionals as defined in §344.100 of this title who are providing services in their professional capacity, any staff member whose position may require supervising or transporting JJAEP students must be:

(i) certified by TJJD as a juvenile probation officer, juvenile supervision officer, or community activities officer; or

(ii) otherwise authorized to perform the duties of a certified juvenile probation officer, community activities officer, or juvenile supervision officer under §§341.400, 341.402, 343.428, 343.622, or 355.428 of this title, as applicable.

(5) Operational Staff Members.

(A) Operational staff members include instructional staff members, supervision staff members, caseworkers, and JJAEP administrators.

(B) The JJAEP must maintain a ratio of at least one operational staff member for every twelve enrolled students.

(h) Verification Documentation.

(1) The JJAEP must maintain a daily staff member roster, staff sign-in sheet, or other verification document that identifies each of the operational staff members who are present in the JJAEP each day.

(2) The staff member roster, sign-in sheet, or other verification document must include the date, the time of entry and exit, the staff member's full name, and the staff member's position or title. Electronic records are acceptable for documenting whether staff members are present or absent.

§348.202.Personnel Administration.

(a) Personnel Records. The JJAEP administrator must have access to a personnel file for each employee or person working at the JJAEP who is included in any program ratio. The file must include verification that any required certifications are current.

(b) Training Records. For each employee or person working at the JJAEP who is included in any program ratio, the JJAEP program administrator must have access to documentation verifying that the individual has completed all training required by this chapter.

(c) New Employee Orientation. All staff members expected to work at the JJAEP for six weeks or longer must receive an orientation training prior to having direct, unsupervised access to students.

(1) Orientation training must occur within the first two weeks of the staff member's employment.

(2) Documentation of completion of orientation training and agendas must be maintained, including staff signatures on training sign-in sheets.

(3) Orientation must include training on:

(A) safety and security procedures, including emergency exit drills and the JJAEP's disaster safety plan;

(B) identification and reporting of serious incidents and child abuse, neglect, and exploitation as required by Chapter 358 of this title;

(C) writing incident reports;

(D) student code of conduct;

(E) behavior management program;

(F) transporting students;

(G) crisis intervention, including how to report suicidal ideation or behavior;

(H) distribution of medication;

(I) restraint policy;

(J) student grievance procedures; and

(K) job descriptions, including duties and responsibilities of the assigned position.

(d) Criminal History and Background Checks. The criminal history and background check requirements and criminal history standards established by Chapter 344, Subchapters C and D, of this title apply to a JJAEP.

§348.204.Data Collection and Case File Information.

(a) Data Collection and Reporting.

(1) JJAEP EDI Extract.

(A) Unless an alternate data entry system has been approved by TJJD, the JJAEP administrator or designee must ensure that:

(i) statistical and programmatic data for each student, as required by the JJAEP Electronic Data Interchange (EDI) Specifications, are accurately documented and entered into the juvenile probation department's automated case management system; and

(ii) the JJAEP EDI Extract is submitted to TJJD no later than the 10th calendar day of each month following the reporting period.

(B) TJJD staff must discuss any proposed changes to the JJAEP EDI Specifications with juvenile probation departments' designated representatives before making substantive changes to the specifications.

(2) JJAEP Monthly Activity Report. The JJAEP administrator or designee must ensure the JJAEP Monthly Activity Report is submitted in the required format to TJJD no later than the 10th calendar day of each month following the reporting period via TJJD's Internet database.

(b) Student Educational Records. The following information must be documented and maintained in the case file for each student in the program:

(1) grade level upon entry to the JJAEP;

(2) notice of expulsion;

(3) court order(s) placing student into the JJAEP;

(4) police offense report, if applicable;

(5) entry and exit transition plans;

(6) education records, to include:

(A) special education determination;

(B) appropriate special education records;

(C) scores on assessments required by the Texas Education Agency; and

(D) home-language survey;

(7) admission and exit testing data, if applicable;

(8) pre-participation physical evaluation, if required under §348.208 of this title;

(9) documentation of regular reviews of academic progress as required by Section 37.011(d), Education Code;

(10) date of admission;

(11) number of attendance days;

(12) number of absent days;

(13) date of release;

(14) emergency notification contacts;

(15) special medical needs, if any;

(16) immunization records; and

(17) medical release form.

§348.206.Curriculum.

(a) Required Courses and Additional Areas of Study.

(1) At a minimum, the JJAEP must provide the following courses at the JJAEP:

(A) English language arts;

(B) mathematics;

(C) social studies; and

(D) science.

(2) The JJAEP must provide the following additional areas of study:

(A) high school equivalency program; and

(B) self-discipline, which may be integrated into the program and may include topics such as drug awareness, anger management, impulse control, and cognitive skills.

(b) Curriculum Development.

(1) A teacher certified by the State Board for Educator Certification must oversee the development and implementation of the educational curriculum.

(2) The JJAEP administrator must ensure that course instruction is consistent with the essential knowledge and skills of each subject of the foundation curriculum as defined by the rules of the State Board of Education.

(3) The high school equivalency program curriculum must address the elements required to pass the topics tested: English, mathematics, science, and social studies. High school equivalency program components may be integrated into the regular educational curriculum.

(4) The JJAEP must offer an accelerated component for each required area of instruction to support credit recovery at the high school level and to regain academic and social skills at the elementary and middle school levels.

§348.208.Program Requirements.

(a) Special Education.

(1) The JJAEP, in collaboration with the sending school district, must ensure that a student with a disability who receives special education services is provided educational services that will support the student in meeting the goals identified in the individualized education program established by a duly constituted admission, review, and dismissal (ARD) committee, in accordance with Section 37.004, Education Code, and federal requirements.

(2) The following ARD committee documentation must be maintained for each special education eligible student:

(A) the most recent full and complete ARD meeting paperwork;

(B) the manifestation determination ARD meeting paperwork; and

(C) the most recent evaluation of eligibility for special education services.

(b) English as a Second Language (ESL).

(1) The JJAEP, in collaboration with the sending school district, must ensure that a student who is non-English speaking or who speaks English as a second language is provided ESL services and instruction appropriate to address his or her needs, as determined by a language proficiency assessment committee (LPAC).

(2) Documentation of LPAC determinations must be maintained.

(c) Section-504-Eligible Students.

(1) The JJAEP must ensure, in collaboration with the sending school district, that a student who is eligible for services under Section 504 of the Rehabilitation Act of 1973 is provided services and instruction appropriate to address his or her needs, as determined by a Section 504 committee.

(2) Documentation of Section 504 eligibility determinations must be maintained.

(d) Standardized Testing Protocols.

(1) JJAEP policies and procedures must describe the safeguards the JJAEP will use to maintain the integrity of the standardized testing process and confidentiality of test results.

(2) JJAEP policies and procedures must include the following requirements:

(A) tests must be maintained in a secure setting (e.g., a locked file cabinet) so that staff and students do not have access to the test except while the test is being administered;

(B) staff are prohibited from making copies of the test;

(C) staff are prohibited from teaching the specific questions on the test; and

(D) unauthorized persons are prohibited from receiving test results, whether hard copy or electronic.

(3) For statewide standardized tests, the JJAEP must adhere to all testing protocols required by the Texas Education Agency.

(4) The JJAEP must administer the standardized test selected by TJJD to measure progress in reading and mathematics for students who will be enrolled in the JJAEP for at least 75 school days.

(A) The pre-test must be administered within 15 days after the student's enrollment.

(B) The post-test must be administered no sooner than 60 days after the student's enrollment.

(e) Counseling. Counseling services (individual or group) must be available to all students in attendance at the JJAEP.

(f) Meals.

(1) Written policies and procedures must require that each student in attendance at the JJAEP is provided a lunch meal on each school day.

(2) A student may not be denied a lunch meal as a disciplinary measure.

(g) Medical.

(1) Authorization to Consent to Treatment. The JJAEP must have on file for each student:

(A) an authorization to consent to medical treatment in accordance with Section 32.001, Family Code, signed by the student's parent, guardian, or custodian; or

(B) documentation indicating the parent, guardian, or custodian has refused to sign.

(2) Medication Administration. The JJAEP must have written policies and procedures governing the administration of medication to students. The policies and procedures must:

(A) specify which personnel are authorized to dispense medication to students;

(B) identify requirements for the storage, use, and distribution of all medication provided to students;

(C) require the student's parent, guardian, or custodian to provide a written request for the administration of the medication;

(D) specify that the JJAEP will not accept medication unless it is in the original, properly labeled container; and

(E) require that distribution of all medication be documented, including the date/time administered, name of the person who administered, student's name, type of medication, and dosage.

(h) Programs that Include Intensive Physical Activity.

(1) Weather-Related Policies. A JJAEP that has an intensive physical activity component must develop written policies and procedures regarding extreme weather conditions. These policies and procedures must address the following:

(A) gradual acclimatization to hot weather;

(B) student clothing for various weather conditions;

(C) specific criteria for temperature and humidity level and other weather conditions that indicate when outside activity is not allowed; and

(D) the provision of a water break to students at least once every 30 minutes during the intensive physical activity period.

(2) Pre-Participation Physical Evaluation.

(A) A student may not participate in intensive physical activity unless the student has received a pre-participation physical evaluation performed by a Texas-licensed:

(i) physician;

(ii) physician assistant;

(iii) advanced practice nurse; or

(iv) doctor of chiropractic.

(B) The pre-participation physical evaluation must have been completed within one calendar year prior to the student's participation in intensive physical activity.

(C) The pre-participation physical evaluation must indicate whether or not the student has any temporary or permanent physical limitations or conditions that would limit or prohibit participation in intensive physical activity.

(D) The JJAEP must adhere to the limitations or prohibitions noted in the pre-participation physical evaluation report.

§348.210.Student Attendance Accounting.

(a) Administrator's Responsibility. The JJAEP administrator must ensure that attendance records for all students enrolled in the JJAEP are accurately documented, maintained, and reported to TJJD.

(b) Aggregate Attendance Accounting.

(1) The expulsion category of each student enrolled must be recorded on the student attendance records.

(2) A specific character on the student attendance record must be used to identify a student's status as present, absent, or inactive.

(c) Student Entry and Exit Accounting.

(1) The student's recorded entry date is the first day the student is physically present at the JJAEP.

(2) A student's recorded withdrawal date is the first school day on which the student is no longer enrolled in the program. The withdrawal date cannot be a date on which the student was present.

(3) The JJAEP must maintain daily student sign-in sheets that contain each student's printed name and signature.

(4) The time of entry or exit must be noted on the student sign-in or sign-out sheet for a student who arrives late or leaves early on any school day.

(5) During the regular school year, a student must be present for at least four hours of the school day for it to qualify as an attendance day.

(d) Inactive Status.

(1) A student must be placed on inactive status if he or she:

(A) is in juvenile detention and is not permitted to attend the JJAEP;

(B) is in jail;

(C) is a documented runaway;

(D) is absent for a minimum of four consecutive school days due to an illness or other medical reason documented by a licensed physician, physician assistant, or advanced practice registered nurse; or

(E) is absent for a minimum of 10 consecutive school days, which may roll over to the start of the next semester attended by the student.

(2) Inactive status begins on the date the event resulting in placement on inactive status begins, as noted on the verification documentation. The documentation must be maintained in the student's file. If verification documentation is not provided, inactive status may not begin until the 11th consecutive school day of absence.

(3) A student who is maintained on inactive status for 30 consecutive school days must be withdrawn on the 31st day of inactive status. A student may not be maintained on inactive status for more than 30 consecutive school days, which may roll over to the start of the next semester attended by the student.

(e) Reporting Absences. The JJAEP must have written policies and procedures that specify which staff member is responsible for reporting absences to the sending school district, which must occur at least once per week.

§348.212.Inter-local Cooperation.

(a) Parent, Guardian, or Custodian.

(1) Progress reports must be given to the student and the student's parent, guardian, or custodian a minimum of once every 120 school days.

(2) Except in cases where a parent, guardian, or custodian withdraws a student, the JJAEP must notify the student's parent, guardian, or custodian in writing of the student's withdrawal from the JJAEP prior to the withdrawal date unless the date is not known prior to the withdrawal. The JJAEP must maintain this documentation.

(b) School District.

(1) Student Entry and Exit Transition Plans.

(A) For each student, the JJAEP must coordinate with the sending school district to develop a written transition plan for entrance into the JJAEP.

(B) For each student, the JJAEP must develop a written exit transition plan, provide the plan to the receiving school district, and maintain written verification that the plan was sent. The exit transition plan must include all information regarding courses in progress or completed, current grades for courses in progress, and number of attendance days and absent days.

(C) The JJAEP must provide the student and the parent, guardian, or custodian with a copy of the exit transition plan.

(2) Student Assessment. All students enrolled in the JJAEP must take the statewide assessment as required under Section 39.023, Education Code. The JJAEP must have policies and procedures addressing:

(A) the delivery of testing materials to and from the JJAEP if the assessment is administered on-site; and

(B) the administration of the statewide assessment to the students.

(c) Juvenile Probation Departments.

(1) The JJAEP and the local juvenile probation department must jointly coordinate the provision of needed social services for the students enrolled in the JJAEP.

(2) Local juvenile probation departments must provide to the JJAEP information regarding the probation status of each student and the name of the student's juvenile probation officer.

(3) The JJAEP must provide the local juvenile probation department with monthly attendance records of juvenile probationers enrolled in the JJAEP.

§348.214.Physical Plant.

(a) The JJAEP must conform to all applicable federal, state, and local ordinances and codes. Each JJAEP must have on file the most recent inspections (i.e., health and fire) conducted by the local governmental authority having jurisdiction.

(b) The number of occupants in the JJAEP may not exceed the rated capacity as determined by the local fire marshal. The JJAEP must maintain documentation from the appropriate fire authority for the rated capacity of each classroom and for the entire building.

(c) The classroom space and common areas must be adequate to meet the programmatic requirements for each student enrolled and in attendance in the JJAEP, including sufficient seating and desks or tables.

(d) All fixtures, including any emergency lighting, must be in working order.

(e) Repairs must be made promptly to all furniture, equipment, and fixtures currently in use that are not in safe working order.

§348.216.Safety, Security, and Emergency Response.

(a) Security Plan. The JJAEP must have a written plan that addresses security:

(1) within the JJAEP building(s);

(2) on the JJAEP campus;

(3) at JJAEP-sponsored events that take place off campus property; and

(4) during transportation of JJAEP students; if applicable.

(b) Transportation. The JJAEP must have written policies and procedures that govern the use of motor vehicles to transport students enrolled in the JJAEP. The policies and procedures must address the following:

(1) authorized methods of transportation;

(2) security and supervision requirements;

(3) authorized transport personnel;

(4) procedures for responding to emergencies while transporting students;

(5) a requirement to possess appropriate auto liability insurance when transporting students in personal vehicles, if allowed; and

(6) circumstances under which a student is allowed to drive a personal vehicle to the JJAEP campus.

(c) Emergency Situations. The JJAEP must have written policies and procedures regarding emergency situations. The policies and procedures must address the following:

(1) emergency evacuation plans;

(2) assignment of staff responsibilities;

(3) notification of emergency services; and

(4) procedures for specific emergency situations, including:

(A) fire;

(B) bomb threat;

(C) hazardous weather conditions;

(D) active shooter event; and

(E) riot.

(d) Medical Emergencies. The JJAEP must have written policies and procedures addressing medical emergencies. The policies and procedures must address the following:

(1) obtaining medical assistance;

(2) when emergency medical services must be called;

(3) notification to appropriate staff and to the parent, guardian, or custodian of the student involved; and

(4) documentation of the incident.

(e) Cardiopulmonary Resuscitation (CPR) and First Aid. Each JJAEP must have at least two staff members certified in CPR and first aid on duty and in close proximity to the students at all times when students are present at the JJAEP campus. Proof of current certification must be maintained in personnel or training files. Documentation must reflect the day certification expires.

(f) Emergency Exit Drills. The JJAEP must conduct at least two emergency exit drills during the school year unless local fire codes or ordinances require these drills more frequently. At least one drill must be conducted during the first half of the school year (August-December) and at least one drill must be conducted during the second half of the school year (January-June).

(1) Written documentation (e.g., fire drill log) of the emergency exit drills must be maintained. Documentation must include the date, time, and staff involved in the emergency drill.

(2) The JJAEP must post emergency exit routes in all classrooms and common areas.

(g) JJAEP Closure. The JJAEP must have written policies and procedures addressing the cancellation of classes due to an emergency situation. The policies and procedures must:

(1) address the cancellation of classes due to inclement weather and/or emergency situations;

(2) identify the individual responsible for making the decision to cancel classes; and

(3) specify the method(s) by which the closure is to be communicated to the students and their parents, guardians, or custodians.

(h) Supervision upon Removal from a Classroom.

(1) The JJAEP must have written policies and procedures that ensure students removed from the classroom for disciplinary reasons and placed in isolation, administrative segregation, time-out, in-school suspension, or any other location are under continuous visual supervision by a JJAEP staff member.

(2) Policies and procedures must prohibit:

(A) use of a locked room for disciplinary removals; and

(B) the use of electronic monitoring equipment as a substitute for continuous visual supervision.

(i) Searches.

(1) All students entering the JJAEP must be subjected to a pat-down search or a metal detector screening on a daily basis.

(2) Searches must be conducted in accordance with written policies and procedures. The policies must:

(A) address:

(i) when a search is appropriate and/or required;

(ii) who is authorized to conduct the search;

(iii) what types of searches are permissible;

(iv) how pat-down searches will be conducted, if applicable; and

(v) what to do when contraband is found;

(B) if pat-down searches are used, require that the staff member conducting a pat-down search is the same gender as the student unless an exception is approved and documented by the JJAEP administrator; and

(C) prohibit strip searches and anal and genital body cavity searches.

(j) Disciplinary Reports.

(1) Written policies and procedures must require JJAEP staff to prepare a written disciplinary report for each incident occurring in the JJAEP that constitutes a major violation of the student code of conduct or of JJAEP rules. The policies must require that the written disciplinary report include:

(A) details of the incident;

(B) violation(s) that occurred;

(C) action(s) taken by the staff member(s);

(D) date and time of the incident; and

(E) discipline imposed, if any.

(2) The disciplinary report must be sent to the JJAEP administrator no later than the next school day. Documentation that shows the date and time the disciplinary report was sent to the JJAEP administrator must be maintained.

§348.218.Restraint Requirements.

(a) The JJAEP must adhere to the restraint requirements set forth in Chapter 341, Subchapter G, of this title, except as noted in subsection (b) of this section.

(b) Personal restraints may be used by any JJAEP staff member trained in the approved personal restraint technique in accordance with training requirements set forth in Chapter 341, Subchapter G, of this title.

§348.220.Serious Incidents.

The JJAEP must adhere to the requirements related to serious incidents set forth in Chapter 358 of this title.

§348.222.Abuse, Neglect, and Exploitation.

(a) The JJAEP must adhere to the requirements related to abuse, neglect, and exploitation set forth in Chapter 358 of this title.

(b) The JJAEP must have zero-tolerance policies and practices regarding sexual abuse, as defined in Chapter 358 of this title, that provide for administrative and/or criminal disciplinary sanctions.

§348.224.Student Code of Conduct.

(a) Adoption.

(1) The JJAEP student code of conduct must be adopted annually by the juvenile board and must describe and define in writing the JJAEP's behavior management system.

(2) The JJAEP administrator must:

(A) conduct an annual review of the student code of conduct after the conclusion of each school year and before the beginning of the next school year; and

(B) no later than October 1 of each year, submit to TJJD documentation verifying the review was completed.

(b) Notice to Students, Parents, and Staff.

(1) The JJAEP student code of conduct must be provided to each student and to the student's parent, guardian, or custodian upon the student's entry into the JJAEP.

(2) The student code of conduct must be reviewed with each student and the student's parent, guardian, or custodian and must be translated if necessary to ensure understanding of the content by all parties.

(3) Acknowledgment of receipt of the student code of conduct signed by the student and by his/her parent, guardian, or custodian must be maintained in each student's file.

(4) No later than the first day of each school year, each JJAEP staff member must sign an acknowledgement that he/she has read and understands the student code of conduct. This acknowledgement must be maintained in the staff's personnel file.

(5) The student code of conduct must be readily accessible to every JJAEP staff member.

(c) Discipline and Sanctions. The student code of conduct must include the following:

(1) prohibited conduct described as minor violations and major violations and the corresponding disciplinary consequences available for each violation;

(2) a description of the disciplinary process, including safeguards designed to promote consistent application of the process;

(3) circumstances that will allow a student's removal from the classroom with staff supervision;

(4) circumstances under which a student may be placed into another educational setting;

(5) due-process procedures; and

(6) a prohibition on one student sanctioning another student.

(d) Prohibited Sanctions.

(1) The following sanctions are prohibited in the JJAEP, and their prohibition must be noted in the student code of conduct:

(A) corporal punishment, physical abuse, humiliating punishment, and hazing;

(B) physical exercises imposed for discipline or intimidation, except as allowed under paragraph (2) of this subsection;

(C) deprivation of food and water; and

(D) expulsion from the JJAEP.

(2) Physical exercise may be used for discipline only if:

(A) the JJAEP operates an intensive physical activity program;

(B) the JJAEP has established written policies and procedures that include limitations on the types of physical activity that may be used for discipline; and

(C) the physical exercise does not cause bodily duress (i.e., physical punishment to the body).

(e) Dress Code. The student code of conduct may establish a dress code or require uniforms for students in attendance.

(f) Grievance Procedures. The student code of conduct must state:

(1) which issues are grievable and not grievable;

(2) the process by which a student may submit a grievance;

(3) the method(s) by which students may obtain and submit a grievance without the assistance or permission of staff;

(4) that retaliation by staff against a student for submitting a grievance is prohibited;

(5) that the student will receive a written response within five school days after submitting the grievance;

(6) that, upon request, a student's parent, guardian, or custodian will be provided a copy of a grievance submitted by the student, including the response;

(7) the deadline for submitting an appeal of the initial response, which must be no earlier than five school days after the student receives the initial response; and

(8) that the student will receive a written response within 10 school days after submitting an appeal.

(g) Sexual Abuse. The student code of conduct must include information relating to the JJAEP's zero-tolerance policy for sexual abuse. The information provided must address the following:

(1) prevention and intervention;

(2) methods of minimizing the risk of sexual abuse;

(3) reporting sexual abuse and assault; and

(4) treatment and counseling.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800180

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014


SUBCHAPTER C. ACCOUNTABILITY

37 TAC §348.300

STATUTORY AUTHORITY

The new section is proposed under Section 221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code.

No other statute, code, or article is affected by this proposal.

§348.300.TJJD Performance Reports.

(a) TJJD completes a JJAEP performance assessment report as required by the General Appropriations Act (GAA). The report addresses factors identified by the GAA. TJJD provides each JJAEP administrator and each chief administrative officer with a copy of the report.

(b) At mandatory JJAEPs (i.e., JJAEPs whose operation is required by law), the JJAEP administrator must provide a copy of the report to the juvenile board and to the superintendent of each school district that participates in the JJAEP.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800182

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014


SUBCHAPTER D. FUNDING

37 TAC §348.400

STATUTORY AUTHORITY

The new section is proposed under Section 221.002(a)(5), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for juvenile justice alternative education programs created under Section 37.011, Education Code. The new section is also proposed under Section 37.011(h), Education Code, which requires TJJD to adopt rules for the distribution of funds appropriated under this section to juvenile boards in counties required to establish JJAEPs.

No other statute, code, or article is affected by this proposal.

§348.400.Funding for JJAEPs.

(a) Funding for JJAEPs is provided in accordance with requirements in the General Appropriations Act.

(b) TJJD will not release funds to a JJAEP until it has received the following:

(1) memorandum of understanding with completed signature page(s), as required by §348.200 of this title;

(2) student code of conduct for the current school year;

(3) school calendar; and

(4) application for a waiver of the required 180 days of operation, if applicable.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2018.

TRD-201800183

Jill Mata

General Counsel

Texas Juvenile Justice Department

Earliest possible date of adoption: March 4, 2018

For further information, please call: (512) 490-7014