Agency Response. The agency provides the following clarification. Beginning in the 2019-2020 school year, English learners will need to achieve scores of advanced high on all four Texas English Language Proficiency Assessment System (TELPAS) domains (reading, writing, listening, speaking), achieve success on state reading assessments or perform at the 40th percentile or above on the state-approved norm-referenced reading achievement test at Grades 1, 2, 11, and 12, and earn a satisfactory rating on the state's student exit rubric.

Comment. Two administrators asked for clarification on §89.1210(d)(1) and (2) regarding the certification requirements for teachers serving English learners through an ESL program in which two different teachers are assigned to deliver language arts and reading instruction, such as a reading teacher and a separate language arts teacher.

Agency Response. The agency provides the following clarification. When implementing an ESL program model, and the English language arts and reading (ELAR) Texas Essential Knowledge and Skills (TEKS) are divided between two teachers, an English language arts (ELA) teacher and a reading teacher, ESL certification is required for both the ELA teacher and the reading teacher.

Comment. Three administrators asked for clarification on §89.1210(d)(1) regarding the specific certification requirements for teachers serving in a content-based ESL program model and wanted to know whether the same ESL certification requirements applied at middle school and high school.

Agency Response. The agency provides the following clarification. When implementing a content-based ESL program model, all four content teachers, or an appropriately certified generalist, must be certified in ESL. This applies at all grade levels, including middle school and high school.

Comment. One administrator requested an explanation for the rationale for changes in ESL certification requirements in §89.1210.

Agency Response. The agency provides the following explanation. The changes in certification requirements for educators serving English learners through ESL pull-out or content-based ESL program models were made to ensure alignment with TEC, §29.066.

Comment. One administrator suggested revising the language to clarify specific teacher certification requirements for educators serving in the content-based ESL program model.

Agency Response. The agency agrees that additional clarification is necessary. In response to this and other comments, §89.1210(d)(1) has been modified at adoption to read, "An ESL/content-based program model is an English acquisition program that serves students identified as English learners through English instruction by a teacher certified in ESL under TEC, §29.061(c), through English language arts and reading, mathematics, science, and social studies."

Comment. Four administrators expressed concern that the revised program model descriptions put forth in §89.1210 may result in an increase in the number of applications districts submit for ESL waivers.

Agency Response. The agency agrees that some, but not all, school districts will be impacted. In some instances, school districts may need to apply for ESL waivers while they adjust to comply with new rules. Other districts may need to change how they code their program model in TSDS PEIMS from content-based ESL to ESL pull-out to avoid applying for additional ESL waivers. The agency has determined that this temporary situation will be remedied once districts have time to ensure staff are appropriately certified.

Comment. One administrator stated that Response to Intervention (RTI) for students served through bilingual education programs is not mentioned in rule text and asked for clarification on appropriate delivery of RTI services for English learners.

Agency Response. The agency provides the following clarification. Information on effective implementation of RTI for students served through bilingual education programs is provided by the agency through guidance posted on the TEA website at https://tea.texas.gov/Academics/Special_Student_Populations/Special_Education/Programs_and_Services/Response_to_Intervention/.

Comment. One administrator expressed concern over the mismatch between the four-week requirement set for identifying English learners and the lengthier allowable time period permitted for identifying students with special needs and the impact that these mismatched timelines may have on student identification, placement, and services.

Agency Response. The agency agrees that state law is incongruent with regard to identification timelines between program areas but has maintained language as proposed in accordance with TEC, §29.056.

Comment. Two administrators requested clarification on how "10th day" is defined under §89.1220(h).

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1220(h) has been modified at adoption to read, "...not later than the 10th calendar day after the date of the student's classification...."

Comment. Two administrators asked whether language describing monitoring requirements in §89.1220(k) should be changed from "in the first two years" to "the first four years after reclassification" to ensure alignment with the new monitoring requirements under ESSA.

Agency Response. The agency provides the following clarification. The ESSA requirement to track academic progress of English learners for the first four years after their reclassification is for federal accountability purposes only and is separate from the state's two-year monitoring requirement in accordance with TEC, §29.056.

Comment. Two administrators asked whether the TEA would ever consider selecting an instrument for identifying English learners that includes all four language domains (reading, writing, listening, speaking) so as to require the administration of only one instrument.

Agency Response. The agency provides the following clarification. In accordance with new ESSA requirements, a single assessment instrument that assesses all four language domains (reading, writing, listening, speaking) will be used to identify English learners beginning in the 2019-2020 school year in accordance with §89.1226.

Comment. Two administrators sought clarification of §89.1225(k) regarding the statement that English learners may not be exited from program services if the LPAC has recommended designated supports on the state reading or writing instrument, pointing out that only certain designated supports could keep students from exiting.

Agency Response. The agency provides the following clarification. While it is accurate that not all designated supports on state assessments would prevent an English learner from being reclassified as English proficient, this rule only applies to designated supports that are "recommended by the LPAC." Specific names and categories of designated supports, as determined by the TEA Student Assessment Division, may change over time, so TEA uses a general term in rule text to ensure alignment over time. The agency has maintained language as proposed.

Comment. One administrator asked for clarification regarding the timing of the administration of the home language survey by the receiving district of a transfer student for students previously enrolled in a public school in Texas, as described in §89.1215(d), and expressed the desire for the receiving district to have the authority to administer a new home language survey for the incoming student on the day of enrollment in order to begin the identification process immediately so that the child can be placed with the appropriate teacher as soon as possible.

Agency Response. The agency provides the following clarification. State law requires that a home language survey be administered upon a student's initial enrollment in a Texas school in accordance with TEC, §29.056. School districts receiving a transfer student coming from another Texas school shall document due diligence in attempting to locate that student's original home language survey to avoid duplicated efforts and the possibility of misidentification of English learners. If the receiving district is unable to obtain the original home language survey after multiple documented attempts, the district may administer a new home language survey while continuing its attempts. TEC, §29.056(a)(1), requires that students be identified as English learners within four weeks of enrollment, not within four weeks of completion of the home language survey, so in cases where the receiving district has failed to obtain the original home language survey from the sending district and must administer a new home language survey, the four-week timeframe still began on the child's school enrollment date, not the date when the new home language survey was administered. The agency has maintained language as proposed.

Comment. One member of the State Board of Education (SBOE) asked for clarification regarding the change from the use of English language learners to the use of English learners.

Agency Response. The agency provides the following clarification. The change in terms is to be in alignment with the language used in ESSA.

Comment. One member of the SBOE asked for clarification regarding the reference to timelines for being prepared for English-only instruction in dual language/one-way and dual language/two-way program models and its impact on A-F accountability ratings and its alignment with the policy that state assessments be made available in English only after the elementary grades.

Agency Response. The agency provides the following clarification. Regarding the impact of language of assessment on A-F accountability ratings, there is no discernable negative impact. English learners served through a dual language program model receive instruction in both English and another language with a goal of attaining full proficiency in both languages. Therefore, participating in state assessments administered in English at the secondary level is aligned with the program model goals.

Comment. One member of the SBOE stated that dual language program models are additive bilingual education models and that transitional bilingual education program models are subtractive and identified dual language goals as bilingualism/biliteracy, academic achievement, and cultural competence.

Agency Response. The agency provides the following clarification. These statements regarding characteristics of various bilingual program models go beyond the scope of basic program descriptions and will be addressed in guidance that is currently under development and will be posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One member of the SBOE stated that a student does not exit a dual language education model but rather exits language proficiency status.

Agency Response. The agency provides the following clarification. When an English learner demonstrates English proficiency through meeting established criteria, in accordance with TEC, §29.056(3)(g), that child is reclassified as English proficient. The term "reclassification" is used to make clear that reclassification does not necessarily equate with cessation of participation in ("exit from") program services.

Comment. One member of the SBOE stated that the only difference between a dual language one-way program model and a dual language two-way program model is student composition and that everything else is the same.

Agency Response. The agency provides the following clarification. For the purposes of providing basic program definitions, it is accurate to state that the main difference between a one-way and a two-way dual language program model is student composition. Differences in program implementation, which would include differences in approaches to instruction, strategies for family involvement, and others, exist between the two program models but go beyond the scope of a basic program model description.

Comment. One member of the SBOE recommended inclusion of information on research-based biliteracy, to include simultaneous and successive biliteracy, as well as a requirement of assessments to be administered in both program languages to all program participants.

Agency Response. The agency provides the following clarification. The recommended information goes beyond the scope of basic program descriptions and will be addressed in guidance that is currently under development and will be posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator asked whether students who meet reclassification criteria earlier than the sixth year of dual language program participation, in accordance with §89.1210(c)(3), would be reclassified and exited out of the program completely or if they would be reclassified but permitted to continue to participate in the program without generating funds.

Agency Response. The agency provides the following clarification. A student being served through a dual language program model reclassifies at the end of the year in which the child meets all reclassification criteria, in accordance with TEC, §29.056(3)(g), but shall continue participating in the program without generating funds. This is because the dual language program model is specifically designed with the goal of its participants being bilingual and biliterate through prolonged program participation, so reclassification does not equate with program exit.

Comment. One administrator noted the striking of language calling for an even balance of English speakers and English learners, whenever possible, in dual language/two-way classrooms at the beginning of the program and the application of statute limiting participation of fluent English speakers to no more than 40% of total program participants. The administrator asked for clarification as to whether districts will have autonomy in balancing student numbers in dual language/two-way classrooms and whether the 40% limit applies at the classroom or districtwide level.

Agency Response. The agency provides the following clarification. School districts have the autonomy to determine the specific makeup of individual dual language/two-way classrooms regarding the balance of English proficient students and English learners. The requirement that no more than 40% of program participants be English proficient applies districtwide and not at the classroom level.

Comment. One administrator recommended that the teacher certification requirements be loosened to allow for any content teacher serving the English learner to suffice as the ESL-certified teacher in the ESL/pull-out model to avoid an increase in the number of ESL waivers.

Agency Response. The agency disagrees and has maintained language as proposed in accordance with TEC, §29.066(b)(2).

Comment. One administrator expressed concern that defining the dual language/one-way program model in terms of a requirement that at least half of the instruction be delivered in the student's primary language for the duration of the program takes away district flexibility to offer a program with time allotments that best meet the needs of the student. The administrator also asserted that there is confusion in the field due to the fact that TEC, Chapter 29, does not provide a specific time allotment for language instruction to be delivered in the students' primary language.

Agency Response. The agency provides the following clarification. The requirement that instruction in the non-English program language not fall below 50% of the total instructional time for the duration of the program is a basic tenet of dual language program models identified in research (Thomas, W.P, and Collier, V.P. (2012). Dual language education for a transformed world. Albuquerque, NM: Fuente Press). For school districts seeking flexibility to offer a program with time allotments for primary language instruction diminishing as students acquire English, they have the autonomy to provide bilingual education services through one of the two transitional bilingual education models. As is generally the case, TEC, Chapter 29, Subchapter B, provides basic information and requirements, whereas rules in Chapter 89 are designed to assist school districts by providing more specific and detailed guidance on how to effectively implement statutory requirements.

Comment. One administrator expressed concern that §89.1225(k), which states that English learners for whom the LPAC has recommended designated supports or accommodations on the state reading or writing assessment instrument shall not be eligible for program exit, will increase the number of long-term English learners in the state.

Agency Response. The agency disagrees. If the LPAC has determined that linguistic supports are needed in order for an English learner to be successful on state assessments, the English learner is not considered ready for successful participation in classroom instruction that is not designed to meet his or her specific needs.

Comment. One administrator recommended that language be added in §89.1207(a)(1) to clarify that students should not be placed in ESL merely because an appropriately certified bilingual teacher is not available, but rather that an exception should be submitted and specific TSDS PEIMS codes entered.

Agency Response. The agency disagrees and has maintained language as proposed. The language in rule provides a general description of the actions to be taken when submitting a bilingual exception. The agency provides guidance on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator recommended that language be added to §89.1207(a) and (b)(1)(e) to make clear that Title III funds are not to be used to help meet the 10% minimum requirement for expenditure of bilingual education allotment funds to provide professional development activities in cases where an exception or waiver was filed.

Agency Response. The agency disagrees and has maintained language as proposed. The language in rule makes clear the expectation that a minimum of 10% of bilingual allotment funds, not Title III funds, are to be used to provide targeted professional development. In addition, a definition of the bilingual education allotment has been added in §89.1203(2) to provide further clarification.

Comment. One administrator recommended adding "in accordance with §89.1233(a)" to the end of the sentence in §89.1228(a) to clarify that services for English learners shall be prioritized over the needs of English-fluent students in a bilingual education program.