The Texas Education Agency (TEA) adopts amendments to §§89.1205, 89.1220, 89.1225, 89.1250; new §89.1207; and the repeal of §89.1260, concerning the state plan for educating limited English proficient students. The amendments to §§89.1205, 89.1220, and 89.1250; new §89.1207; and the repeal of §89.1260 are adopted without changes to the proposed text as published in the June 22, 2007, issue of the Texas Register (32 TexReg 3825) and will not be republished. The amendment to §89.1225 is adopted with changes to the proposed text as published in the June 22, 2007, issue. The adopted amendment to §89.1205 and adopted new §89.1207 revise the process of applying for a bilingual exception and/or an English as a second language (ESL) waiver. The other adopted amendments 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 Section 89.1260 is also repealed to remove monitoring requirements no longer authorized in statute.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 adopted revisions to 19 TAC Chapter 89, Subchapter BB, include the following rule changes.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, is amended to delete subsections (g) and (h) regarding bilingual education program exceptions and ESL program waivers. This information is moved to adopted new §89.1207, Exceptions and Waivers, and includes criteria upon which approval would be granted and, if denied, provides for an appeal. The adopted new section also allows 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. No changes were made to this section since published as proposed.

Section 89.1220, Language Proficiency Assessment Committee, is 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 is made for clarification in subsection (i)(5) regarding reference to the state English language proficiency assessment in reading. No changes were made to this section since published as proposed.

Section 89.1225, Testing and Classification of Students, is amended to clarify the process by which testing will be determined for students who receive both special education and special language services. Subsection (f) is revised to add language for determining the appropriate assessment and designated performance level by the admission, review, and dismissal (ARD) committee in conjunction with the LPAC in response to a student individual education program. Subsection (h) is revised to establish exit criteria in accordance with HB 1, Third Called Session, 2006. Subsection (k) is 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. Changes were made to this section since published as proposed. Language in subsection (h)(2) was modified to clarify that English language arts assessment instruments are also to be TEA approved. Language in subsection (i) was modified to reflect that a student may not be exited from a bilingual education or an English as a second language program in prekindergarten or kindergarten, rather than prekindergarten through Grade 1, to be consistent with new language adopted in subsection (h)(2) that allows for students in Grades 1 and 2 to be exited.

Section 89.1250, Required Summer School Programs, is amended to address requirements for district submission of information and eligibility for funding in paragraph (4)(A). No changes were made to this section since published as proposed.

Section 89.1260, Monitoring of Programs and Enforcing Law and Commissioner's Rules, is repealed since the state statute (TEC) no longer authorizes monitoring in this manner. No changes were made to this section since published as proposed.

The public comment period began June 22, 2007, and ended July 22, 2007. Following is a summary of public comments received and corresponding agency responses regarding the proposed revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating Limited English Proficient Students.

Comment. Concerning §89.1225(h), a comment was received from an educator from the Weatherford Independent School District (ISD) indicating the word "and" is missing between paragraphs (1) and (2) of subsection (h). The comment further indicated that language in paragraph (2) is ambiguous and would be more straightforward if maintained as it was prior to the proposed amendment. The comment also pointed out that, as written, the rule indicates that any assessment instrument is acceptable as long as it is administered in English.

Agency Response. The agency disagrees with the first two points and has maintained language as filed as proposed. First, the language in paragraphs (1) and (2) of subsection (h) are part of a series of three with the word "and" correctly placed between paragraphs (2) and (3). Second, the language in paragraph (2) is consistent with language in the Texas Education Code. The agency agrees with the third point. Language in 19 TAC §89.1225(h)(2) was modified to clarify that English language arts assessment instruments are also to be TEA approved.

Comment. Concerning §89.1225(i), a comment was received from the director of Program Compliance, Division of Curriculum Instruction, for the Carrollton-Farmers Branch ISD, that pointed out a contradiction in the language in new §89.1225(h)(2) that allows for students in Grades 1 and 2 to be exited from a bilingual education or an English as a second language program and §89.1225(i) that indicates a student may not be exited from a bilingual education or an English as a second language program in prekindergarten through Grade 1.

Agency Response. The agency agrees. Language in 19 TAC §89.1225(i) was modified to reflect that a student may not be exited from a bilingual education or an English as a second language program in prekindergarten or kindergarten.

Comment. Concerning §89.1225(k), a comment was received from the director of Special Programs for the Fredericksburg ISD expressing concern that it would be very difficult and unnecessary to convene a committee of all ARD committee members and all LPAC members to make decisions regarding a student who receives both special education and special language services. The comment further expressed the belief that it is not in the best interest of the student for the trained parent member of the LPAC to be in attendance unless this member is the parent of the child under consideration.

Agency Response. The agency disagrees with the comment and has maintained language as filed as proposed. The rule indicates that the two committees must work in conjunction with one another to make decisions. The rule does not require all committee members of both committees to convene at the same time. As written, the rule does not prohibit a district from deciding not to include the trained parent member of the LPAC if it is not in the best interest of the child.

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