The Texas Education Agency (TEA) adopts 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 amendments to §§89.1011, 89.1045, 89.1049, 89.1052, 89.1053, 89.1056, 89.1065, 89.1075, 89.1076, 89.1085, 89.1090, 89.1125, 89.1141, 89.1150, 89.1151, 89.1165, 89.1185, and 89.1191 and the repeal of §89.1060 are adopted without changes to the proposed text as published in the April 20, 2007, issue of the Texas Register (32 TexReg 2229) and will not be republished. The amendments to §§89.1040, 89.1047, 89.1050, 89.1055, 89.1070, 89.1096, 89.1131, and 89.1180 are adopted with changes to the proposed text as published in the April 20, 2007, issue. The adopted amendments and repeal 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 adopted 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, is amended to reflect adopted 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. No changes were made to this section since published as proposed.

Section 89.1040, Eligibility Criteria, is amended to reflect changes in the new IDEA Regulations regarding learning disability eligibility, as well as stakeholder recommendations regarding mental retardation eligibility. Stakeholder recommendations indicated that the definition regarding eligibility criteria for mental retardation was outdated and inconsistent with current research. Changes are adopted to address this recommendation. Changes are also adopted to address changes in the new IDEA regulations regarding learning disability eligibility that require states to develop rules that define eligibility criteria for learning disabilities that are consistent with the IDEA regulations. Clarification about other health impairments is also adopted as well as additional changes throughout the section to reflect the renumbering of the new IDEA regulations. In response to public comment, subsection (c)(9) is revised to add clarification regarding determination of learning disability eligibility.

Section 89.1045, Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1047, Procedures for Surrogate and Foster Parents, is amended to be consistent with the new IDEA regulations and an amendment made in 2004 to §89.1055(g) concerning the consideration of transition services in the development of an individualized education program. Throughout §89.1047, citations to the IDEA regulations are updated to reflect the renumbering of the new IDEA regulations. Deadlines for completing training when this rule was initially adopted are deleted from the rule because they are obsolete. References to the Texas Department of Protective and Regulatory Services are updated to reflect the agency's new name, the Texas Department of Family and Protective Services. In response to public comment, a change is made to §89.1047(a)(1)(D) to align state requirements with federal law regarding the age at which transition services must be addressed.

Section 89.1049, Parental Rights Regarding Adult Students, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1050, The Admission, Review, and Dismissal (ARD) Committee, is amended to reflect requirements found in the new IDEA regulations with regard to the membership, attendance, and excusal of ARD committee members and with regard to the interstate and intrastate transfers of students between school districts during the same school year. In response to public comment, subsection (c)(4) is revised to add language requiring membership of both a teacher certified in the education of students with visual impairments and a teacher certified in auditory impairments at an ARD committee meeting of a student with suspected or documented deaf-blindness. Also in response to public comment, subsection (f) is revised to add clarification regarding the evaluation of and provision of special education services to students transferring between school districts.

Section 89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP), is 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 adopted amendment to §89.1052 incorporates 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. The adopted amendment also adds language to set forth the serious offenses cited in the TEC, §37.007, that would warrant expulsion. Changes are also made in the section as applicable to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1053, Procedures for Use of Restraint and Time-Out, is amended to remove specified outdated timeframes throughout the section. A reference to the new IDEA regulations is also updated. No changes were made to this section since published as proposed.

Section 89.1055, Content of the Individualized Education Program (IEP), is 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. The rule is also amended 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 are also be made in the section as applicable to reflect the renumbering of the new IDEA regulations.

In response to public comments, the following revisions were made to §89.1055 since published as proposed. Subsection (b) is modified to clarify that district-wide assessments as described in this subsection are optional. As proposed, revisions in subsections (e) and (f) were made to address IEPs for students with autism spectrum disorders. In response to public comments, the TEA revised subsection (e) to clarify that the 11 items in this subsection are to be addressed on an individual basis when needed. Additional revisions were also made to clarify that strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Subsection (e) is also revised to clarify the IEP "considerations" and the term "research-based educational programming practices." In addition, subsection (g) is revised to indicate that IEP considerations related to transition must be addressed by age 16, consistent with federal law.

Section 89.1056, Transfer of Assistive Technology Devices, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

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

Section 89.1065, Extended School Year Services (ESY Services), is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1070, Graduation Requirements, is amended to clarify assessment requirements for graduation and to meet requirements of the new IDEA regulations. Changes in this section reorganize provisions to clarify additional conditions that would satisfy graduation requirements consistent with a student's IEP; to substitute new language describing provisions that must be addressed in a summary of academic achievement and functional performance; and to delete reference to TEC, §39.024. As proposed, revisions in subsection (b) would have clarified the requirement of satisfactory performance on an alternate assessment instrument. In response to public comment, subsection (b)(2) is revised to no longer reference the assessment instrument as alternative assessment instrument. Also in response to public comment, changes are made in subsection (b)(2) to clarify graduation requirements as related to high school graduation programs.

Section 89.1075, General Program Requirements and Local District Procedures, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1076, Interventions and Sanctions, is amended to provide clarification regarding the 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 is removed. Other clarifications relating to monitoring, interventions, and sanctions are provided. No changes were made to this section since published as proposed.

Section 89.1085, Referral for the Texas School for the Blind and Visually Impaired (TSBVI) and the Texas School for the Deaf Services (TSD), is amended to eliminate the current requirement that a school must list special education services it is unable to provide when referring a student to the TSBVI or the 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 is also amended to update references to federal regulations. No changes were made to this section since published as proposed.

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, is amended to incorporate minor technical corrections. No changes were made to this section since published as proposed.

Section 89.1096, Provision of Services for Students Placed by their Parents in Private Schools or Facilities, is amended to add an option for students ages 3 and 4 placed by their parents in a private school to receive limited special education and related services through a service plan. This amendment adds clarification regarding an option which allows students with disabilities ages 3 and 4 to be dually enrolled in both public and private schools and to receive the services and protections available under an individualized education plan. The amended rule adds a definition of an elementary school and a secondary school, which is now required as a result of the new IDEA regulations. The section is also modified to reflect the renumbering of the new IDEA regulations and to re-letter subsections accordingly. In response to public comments, subsection (a) is revised to clarify the definition of a private elementary or secondary school and to ensure consistency with federal regulations concerning students with disabilities enrolled by parents in private schools.

Division 4, Special Education Funding

Section 89.1125, Allowable Expenditures of State Special Education Funds, is amended to remove reference to 34 CFR in keeping with changes resulting from the new IDEA regulations. No changes were made to this section since published as proposed.

Division 5, Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, is amended to reflect changes in the new IDEA regulations with regard to emergency certifications of interpreters. Qualification requirements for teachers of students meeting eligibility requirements for orthopedically impaired or other health impaired are removed due to federal requirements of the IDEA regulations regarding highly qualified personnel. Provisions regarding attendance of teachers of students with visual or auditory impairments at ARD committee meetings are deleted from this rule and moved to §89.1050. The amended rule addresses certification by the Registry of Interpreters for the Deaf (RID). In response to public comment, subsection (d) is modified to establish that the TEA recognizes as RID certified, any interpreter who is certified by or a certified member of the RID.

Division 6, Regional Education Service Center Special Education Programs

Section 89.1141, Education Service Center Regional Special Education Leadership, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Division 7, Resolution of Disputes Between Parents and School Districts

Section 89.1150, General Provisions, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

Section 89.1151, Due Process Hearings, is amended to reflect the renumbering of the new IDEA regulations. In addition, an outdated timeframe is deleted. No changes were made to this section since published as proposed.

Section 89.1165, Request for Hearing, is amended to reflect changes made as a result of the adoption of 34 CFR, §300.508. Changes include commencement of timelines applicable to prehearing procedures and due process hearings and information that must be included in the request for due process hearing. No changes were made to this section since published as proposed.

Section 89.1180, Pre-hearing Procedures, is amended to reflect changes made as a result of the adoption of 34 CFR, §300.508. Changes include 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 amendment includes the addition of the requirement of transcription of the prehearing conference by a certified court reporter. As proposed, language related to dismissal or nonsuit after the Disclosure Deadline was proposed for deletion. In response to public comment, however, language related to dismissal or nonsuit after the Disclosure Deadline is reinstated with no changes as new subsection (i).

Section 89.1185, Hearing, is 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. Additional revisions are made to address changes to timelines. The adopted amendment also reflects the renumbering of the new IDEA regulations throughout the section. No changes were made to this section since published as proposed.

Section 89.1191, Special Rule for Expedited Due Process Hearings, is amended to reflect the renumbering of the new IDEA regulations. No changes were made to this section since published as proposed.

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, began April 20, 2007, and ended June 19, 2007. In addition, statewide public hearings were conducted in May 2007. Following is a summary of public comments received and corresponding agency responses regarding the proposed amendments and repeal.

More than 400 individuals, including educators, school officials, legislators, regional education service centers, organizations, and interested citizens, submitted comments regarding the proposed amendments and repeal to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services.

§89.1011, Referral for Full and Individual Initial Evaluation

Comment. A parent expressed support for the proposed amendment to §89.1011.

Agency Response. The agency agrees.

Comment. A licensed specialist in school psychology and an appraisal staff leader/educational diagnostician recommended that the agency enforce pre-referral/referral procedures.

Agency Response. The agency agrees. Pre-referral/referral procedures are enforced by the agency to the extent appropriate through its authority and responsibility to general supervision. Following rule adoption, the agency plans to provide clarification and policy guidance regarding pre-referral/referral procedures.

Comment. An appraisal staff leader/educational diagnostician, three ARD facilitators, two special education directors, a licensed specialist in school psychology, a special education coordinator, an instructional specialist, and a diagnostician recommended clarification of "Response to scientific, research-based interventions."

Agency Response. The agency agrees. Following rule adoption, the agency plans to provide clarification and guidance regarding this issue.