The Texas Education Agency (TEA) proposes amendments to §§89.1205, 89.1220, 89.1225, and 89.1250; new §89.1207; and the repeal of §89.1260, concerning the state plan for educating limited English proficient students. The proposed amendment to §89.1205 and proposed new §89.1207 would revise the process of applying for a bilingual exception and/or an English as a second language (ESL) waiver. The other proposed amendments would add language regarding the transfer of students out of a special language program in accordance with House Bill (HB) 1, 79th Texas Legislature, Third Called Session, 2006; provide clarification on serving students who receive both special language and special education services; and address submission of information for summer school programs. Section 89.1260 would be repealed to remove monitoring requirements no longer authorized in statute.

In accordance with the Texas Education Code (TEC), Chapter 29, Subchapter B, Bilingual Education and Special Language Programs, the commissioner exercised rulemaking authority establishing rules to guide the implementation of bilingual education and special language programs. The commissioner's rules in 19 TAC Chapter 89, Subchapter BB, adopted to be effective September 1, 1996, establish the policy that every student in the state who has a home language other than English and who is identified as limited English proficient shall be provided a full opportunity to participate in a bilingual education or ESL program. These rules outline the requirements of the bilingual and ESL programs, including program content and design, home language survey, the language proficiency assessment committee (LPAC), testing and classification, facilities, parental authority and responsibility, staffing and staff development, required summer school programs, monitoring of programs, and evaluation. Rules in 19 TAC Chapter 89, Subchapter BB, were amended to be effective April 2002. During the statutorily-required rule review of rules in 19 TAC Chapter 89 in 2006, staff identified the need to update the rules. The proposed revisions to 19 TAC Chapter 89, Subchapter BB, include the following proposed rule changes.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, would be amended to delete subsections (g) and (h) regarding bilingual education program exceptions and ESL program waivers. This information would be moved to proposed new §89.1207, Exceptions and Waivers, and would include criteria upon which approval would be granted and, if denied, would provide for an appeal. The proposed new section would also allow for a special accreditation investigation when a district is denied an exception or waiver for more than three consecutive years or has excessive numbers of allowable exemptions.

Section 89.1220, Language Proficiency Assessment Committee, would be amended by revising subsection (l) to indicate that a student's exit from a bilingual or ESL program will occur in accordance with the TEC, §29.0561, as added by HB 1, Third Called Session, 2006. A technical update would be made for clarification in subsection (i)(5) regarding reference to the state English language proficiency assessment in reading.

Section 89.1225, Testing and Classification of Students, would be amended to clarify the process by which testing will be determined for students who receive both special education and special language services. Subsection (f) would be revised to add language for determining the appropriate assessment and designated performance level by the admission, review, and dismissal committee in conjunction with the LPAC in response to a student individual education program. Subsection (h) would be revised to establish exit criteria in accordance with HB 1, Third Called Session, 2006. Subsection (k) would be added to include language clarifying the process by which students who receive both special education and special language services are exited from a bilingual education or ESL program.

Section 89.1250, Required Summer School Programs, would be amended to address requirements for district submission of information and eligibility for funding in paragraph (4)(A).

Section 89.1260, Monitoring of Programs and Enforcing Law and Commissioner's Rules, would be repealed since the state statute (TEC) no longer authorizes monitoring in this manner.

The proposed amendment to 19 TAC §89.1205 represents a change in the information collected from school districts. Under current rule, 19 TAC §89.1205(g) and (h), school districts must submit an exception, a waiver, or an assurance. Under the proposed new rule, 19 TAC §89.1207, school districts must submit exceptions or waivers. In addition, the proposed amendment to 19 TAC §89.1250 would revise reporting requirements for information about English language learners entering kindergarten or first grade. The proposed revision would relate to submission of data on summer school attendees for funding purposes.

The proposed revisions to 19 TAC Chapter 89, Subchapter BB, include an amendment to 19 TAC §89.1220, Language Proficiency Assessment Committee, that would increase the frequency with which the LPAC monitors certain students' academic progress in accordance with the TEC, §29.0561. Also in response to legislation, an amendment to 19 TAC §89.1225, Testing and Classification of Students, would require ARD committees, in conjunction with LPACs, to determine appropriate assessment instruments and levels of performance for certain students. Districts may incur additional locally maintained paperwork in order to comply with these new legislative requirements enacted by HB 1, Third Called Session, 2006.

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

Dr. Barnes has determined that, for each year of the first five years the proposed amendments, new section, and repeal are in effect, the public benefit anticipated as a result of enforcing the proposed rule actions would be further clarification for serving bilingual and ESL students. 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, new section, and repeal.

The public comment period on the proposed amendments, new section, and repeal to 19 TAC Chapter 89, Subchapter BB, begins June 22, 2007, and ends July 22, 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, new section, 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 and new section are proposed under the Texas Education Code, §29.056, which authorizes the agency to adopt rules relating to the identification, assessment, and classification of students of limited English proficiency eligible for entry into the program or exit from the program. Texas Education Code, §29.054, addresses exceptions to bilingual education programs. Texas Education Code, §29.0561, addresses evaluation and reenrollment of exited bilingual students. Texas Education Code, §29.060, establishes preschool, summer school, and extended time programs for bilingual and special language programs.

The proposed amendments and new section implement the Texas Education Code, §§29.051, 29.054, 29.056, 29.0561, and 29.060.