The Texas Education Agency (TEA) proposes amendments to §§89.1011, 89.1040, 89.1045, 89.1047, 89.1049, 89.1050, 89.1052, 89.1053, 89.1055, 89.1056, 89.1065, 89.1070, 89.1075, 89.1076, 89.1085, 89.1090, 89.1096, 89.1125, 89.1131, 89.1141, 89.1150, 89.1151, 89.1165, 89.1180, 89.1185, and 89.1191, and the repeal of §89.1060, concerning special education services. The proposed amendments and repeal would reflect changes required by the Individuals with Disabilities Education Improvement Act (IDEA 2004) Amendments of 2004, 34 Code of Federal Regulations (CFR), and Texas Education Code (TEC).

On December 3, 2004, President Bush signed into law the Individuals with Disabilities Education Improvement Act (IDEA 2004) Amendments of 2004, which contain many changes to the federal law pertaining to the education of students with disabilities. On October 13, 2006, the United States Department of Education, Office of Special Education Programs, published final federal regulations. As a result of the changes to the federal special education law and regulations, 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services, must be amended to reflect these changes to ensure school district compliance with new procedural and reporting requirements. The proposed rule actions for 19 TAC Chapter 89, Subchapter AA, add, revise, and delete text and update references to statutory citations to reflect changes in the IDEA 2004, 34 CFR, and the TEC and to reflect minor, technical corrections, as follows.

Division 2. Clarification of Provisions in Federal Regulations and State Law

Section 89.1011, Referral for Full and Individual Initial Evaluation, would be amended to reflect proposed revisions in 19 TAC §89.1040, relating to consideration of scientific, research-based intervention and other academic or behavior support services for all students prior to referral for possible special education services.

Section 89.1040, Eligibility Criteria, would be amended to reflect changes in the new IDEA regulations regarding learning disability eligibility, as well as stakeholder recommendations regarding mental retardation eligibility. Stakeholder recommendations indicate that the current definition regarding eligibility criteria for mental retardation in subsection (c)(5) is outdated and inconsistent with current research. Proposed new text in subsection (c)(5) would address this recommendation. Proposed new text in subsection (c)(9) would address changes in the new IDEA regulations regarding learning disability eligibility that require states to develop rules defining eligibility criteria for learning disabilities that are consistent with the new IDEA regulations. Clarification about other health impairments would be made in subsection (c)(8). Additional changes would be made throughout the section to reflect the renumbering of the new IDEA regulations.

Section 89.1045, Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings, would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1047, Procedures for Surrogate and Foster Parents, would be amended to be consistent with the new IDEA regulations and an amendment made to §89.1055(g), relating to transition services in 2004. Throughout §89.1047, citations to the IDEA regulations would be updated to reflect the renumbering of the new IDEA regulations. Subsection (a)(1)(D), concerning training for transition services, would be updated to reflect an amendment made to §89.1055(g) in 2004 concerning the consideration of transition services in the development of an individualized education program. In addition, deadlines for completing training when §89.1047 was initially adopted would be deleted from subsections (a)(3) and (4) and (b)(1) and (2) because they are obsolete. References to the Texas Department of Protective and Regulatory Services would be updated to reflect the agency's new name, the Texas Department of Family and Protective Services.

Section 89.1049, Parental Rights Regarding Adult Students, would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1050, The Admission, Review, and Dismissal (ARD) Committee, would be amended to reflect requirements of and update references to the new IDEA regulations. A new subsection (c) would address membership, attendance, and the excusal of ARD committee members. In addition, subsection (f) would be revised to address the interstate and intrastate transfers of students between school districts during the same school year.

Section 89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP), would be amended to reference the TEC, §37.007, rather than the TEC, §37.004, when addressing the expulsion of a student with a disability. Section 89.1052 originally addressed statutory provisions in the TEC, §37.004(e) - (f), however, the TEC, §37.004(e) - (g), expired September 1, 2005. The proposed amendment to §89.1052 would incorporate elements of the expired TEC, §37.004(e) - (f), into the commissioner's rule as new subsections (b) and (c) pursuant to the TEC, §29.001(7), which gives the Texas Education Agency rulemaking authority to ensure that an individualized education program for each student is properly developed, implemented, and maintained in the least restrictive environment that is appropriate to meet the student's educational needs. Another change would add proposed new subsection (a) to set forth the serious offenses cited in the TEC, §37.007, that would warrant expulsion. Changes would also be made in the section as applicable to reflect the renumbering of the new IDEA regulations.

Section 89.1053, Procedures for Use of Restraint and Time-Out, would be amended to remove specified outdated timeframes throughout the section. A reference to the new IDEA regulations would also be updated.

Section 89.1055, Content of the Individualized Education Program (IEP), would be amended to reflect recommendations of the Autism Rule Study Group regarding IEP considerations for students with autism, as required in the TEC, §25.0051. The law required a rule study group to meet and provide recommendations to the commissioner of education, resulting in the clarification of existing considerations and the addition of new IEP considerations. Revisions in subsections (e) and (f) would address IEPs for students with autism spectrum disorders. In addition, subsection (b) would be revised to reflect changes in the new IDEA regulations regarding accommodations in the administration of assessment instruments developed in accordance with the TEC, §39.023. Changes would also be made in the section as applicable to reflect the renumbering of the new IDEA regulations.

Section 89.1056, Transfer of Assistive Technology Devices, would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1060, Definitions of Certain Related Services, would be repealed because of changes in the new IDEA regulations that now designate interpreting services as a related service. Due to this change in federal regulation, §89.1060 is no longer necessary.

Section 89.1065, Extended School Year Services (ESY Services), would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1070, Graduation Requirements, would be amended to clarify assessment requirements for graduation and to meet requirements of the new IDEA regulations. Revisions in subsection (b) would clarify the requirement of satisfactory performance on an alternate assessment instrument. Subsection (c) would be reorganized to clarify additional conditions that would satisfy graduation requirements consistent with a student's IEP. Subsection (e) would be substituted with new language describing provisions that must be addressed in a summary of academic achievement and functional performance. Subsection (h) would be deleted due to a change in the TEC, §39.024, and the subsequent subsection would be re-lettered accordingly.

Section 89.1075, General Program Requirements and Local District Procedures, would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1076, Interventions and Sanctions, would be amended to provide clarification regarding the new IDEA regulations, including reference to program effectiveness as well as compliance with federal and state requirements. The restriction that technical assistance be obtained from the education service center would be removed from paragraph (4). Other clarifications relating to monitoring, interventions, and sanctions would be provided in paragraphs (11) and (12).

Section 89.1085, Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services, would be amended to eliminate the current requirement in subsection (c)(1) that a school must list special education services it is unable to provide when referring a student to the Texas School for the Blind (TSBVI) or the Texas School for the Deaf (TSD). The requirement may discourage schools from referring students to TSD or TSBVI due to the perception it may leave the school open to legal action by the parent for failure to provide adequate services. The section would also be amended to update references to the United States Code.

Section 89.1090, Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf, would be amended to incorporate minor technical corrections.

Section 89.1096, Provision of Services for Students Placed by their Parents in Private Schools or Facilities, would be amended to add an option for students ages 3 or 4 placed by their parents in a private school to receive limited special education and related services through a services plan. This amendment would add an option in proposed new subsection (d) which would allow students with disabilities ages 3 or 4 to be dually enrolled in both public and private schools and to receive the services and protections available under an individualized education plan. Subsection (a) would be modified to add a definition of private school, which is now required as a result of the new IDEA regulations. The section would also be modified to reflect the renumbering of the new IDEA regulations and to re-letter subsections accordingly.

Division 4. Special Education Funding

Section 89.1125, Allowable Expenditures of State Special Education Funds, would be amended to remove reference to 34 CFR in keeping with changes resulting from the new IDEA regulations.

Division 5. Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, would be amended to reflect changes in the new IDEA regulations. Qualification requirements found in subsection (b)(3) for teachers of students meeting eligibility requirements for orthopedically impaired or other health impaired would be removed due to federal requirements of the new IDEA regulations regarding highly qualified personnel. Subsequent provisions would be re-numbered accordingly. Requirements found in re-numbered subsections (b)(3) and (4) regarding the attendance of teachers of students with visual or auditory impairments at ARD committee meetings would be deleted from this rule and included in the proposed amendment to 19 TAC §89.1050(c)(4). Other changes proposed in re-numbered subsection (b)(6) and subsection (d) with regard to emergency certifications of interpreters would reflect changes in the new IDEA regulations.

Division 6. Regional Education Service Center Special Education Programs

Section 89.1141, Education Service Center Regional Special Education Leadership, would be amended to reflect the renumbering of the new IDEA regulations.

Division 7. Resolution of Disputes Between Parents and School Districts

Section 89.1150, General Provisions, would be amended to reflect the renumbering of the new IDEA regulations.

Section 89.1151, Due Process Hearings, would be amended to reflect the renumbering of the new IDEA regulations. In addition, an outdated timeframe specified in subsection (c) would be deleted.

Section 89.1165, Request for Hearing, would be amended to reflect changes made as a result of the adoption of 34 CFR, §300.508. Subsection (a) would be changed to address the commencement of timelines applicable to due process hearings. New subsection (b) would be added to clarify that the party filing a hearing request must provide a copy of the request to the other party. Existing subsection (b) would be deleted and new subsections (c) and (d) would be added to address information that must be included in the request for due process hearing.

Section 89.1180, Prehearing Procedures, would be amended to reflect changes made as a result of the adoption of 34 CFR, §300.508. Changes throughout the section would address the inclusion of specific items to be set out in a prehearing order by the hearing officer as a result of amendments to the IDEA 2004, including the resolution session and the opportunity to contest the sufficiency of the complaint. The requirement of a transcription of the prehearing conference by a certified court reporter would be added in new subsection (c) and existing subsections would be re-lettered accordingly. The language in existing subsection (h) related to dismissal or nonsuit after the Disclosure Deadline would be deleted in keeping with changes to 34 CRF, §300.508.

Section 89.1185, Hearing, would be amended to reflect changes made in applicable timelines for final resolution of due process hearings as a result of the adoption of 34 CFR, §300.510, which added the obligation of the resolution session into the due process hearings procedure. Subsections (a), (k), (l), and re-lettered (n) would be revised to address changes to timelines. Existing subsection (n) would be deleted and subsequent subsections re-lettered accordingly. The proposed amendment would also reflect the renumbering of the new IDEA regulations throughout the section.

Section 89.1191, Special Rule for Expedited Due Process Hearings, would be amended to reflect the renumbering of the new IDEA regulations.

Susan Barnes, associate commissioner for standards and programs, has determined that for the first five-year period the amendments and repeal are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments and repeal.

Dr. Barnes has determined that for each year of the first five years the amendments and repeal are in effect the public benefit anticipated as a result of enforcing the amendments and repeal will be consistent linkage to the IDEA Amendments of 2004 and its implementing regulations. School districts, the public, and students will benefit by having specific reference to the new federal requirements that provide for the education of students with disabilities. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed amendments and repeal.

Stakeholder meetings of parents, advocates, school districts, education service centers, support personnel organizations, and teacher and administrator organizations were convened in November 2006 and January 2007 during the development of the proposed rule changes. The public comment period on the proposed amendments and repeal to 19 TAC Chapter 89, Subchapter AA, begins April 20, 2007, and ends June 19, 2007. In addition, statewide public hearings will be scheduled for May 2007. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendments and repeal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The amendments are proposed under 34 CFR, Part 300, which requires states to have policies and procedures in place to ensure the following: 34 CFR, §§300.100, the provision of a free appropriate public education to children with disabilities; 300.111, all children with disabilities are identified, located, and evaluated; 300.114, public agencies meet least restrictive environment requirements; 300.121, children with disabilities and their parents are afforded procedural safeguards; 300.124, the effective transition of children with disabilities from early intervention programs under Part C of the Individuals with Disabilities Education Act 2004 (IDEA 2004) to preschool programs under Part B of IDEA 2004; 300.129, local educational agencies meet requirements for parentally-placed private school children with disabilities; and 300.307, which requires states to adopt criteria for determining whether a child has a specific learning disability as defined in 34 CFR, §300.8(c)(10); and TEC, §§29.001, which authorizes the commissioner of education to adopt rules for the administration and funding of the special education program; 29.003, which authorizes the commissioner to develop specific eligibility criteria for the special education program; 29.005, which authorizes the commissioner to adopt a rule concerning requirements for the individualized education program of a student with autism or another pervasive developmental disorder; 29.010, which authorizes the commissioner to adopt rules to implement a system of sanctions for school districts whose most recent monitoring visit shows a failure to comply with major requirements of the IDEA, federal regulations, state statutes, or agency requirements necessary to carry out federal law or regulations or state law relating to special education; 29.011, which authorizes the commissioner to by rule adopt procedures for compliance with federal requirements relating to transition; 29.015, which authorizes the commissioner to adopt a rule that sets standards for foster and surrogate parent training; 29.017, which authorizes the commissioner to adopt rules concerning the transfer of parental rights to students with disabilities who are 18 years of age; 30.0015, which authorizes the commissioner to adopt a rule that sets standards for the transfer of assistive technology devices; 30.002, which authorizes the commissioner to adopt rules for the administration of the statewide plan for education students with visual impairments; 30.083, which authorizes the commissioner to adopt rules for the administration of the statewide plan for educating students who are deaf or hard of hearing; and 37.0021, which authorizes the commissioner to by rule adopt procedures for the use of restraint and time-out.

The amendments implement 34 CFR, §§300.100; 300.111; 300.114; 300.121; 300.124; 300.129; 300.307; and TEC, §§29.001; 29.003; 29.005; 29.010; 29.011; 29.015; 29.017; 30.0015; 30.002; 30.083; and 37.0021.