The Texas Education Agency (TEA) proposes an amendment to §89.1070, concerning special education services. The section specifies graduation requirements for students receiving special education services. The proposed amendment would reflect changes to assessment and curriculum requirements for graduation for students receiving special education services as required by House Bill (HB) 3, 81st Texas Legislature, 2009.

HB 3, 81st Texas Legislature, 2009, amended the Texas Education Code (TEC), §39.023, to include changes to graduation requirements effective September 1, 2009. As a result of the changes to the state law, 19 TAC §89.1070 must be amended to ensure school district compliance with new procedural requirements.

In accordance with state and federal law, an admission, review, and dismissal (ARD) committee may determine that, for a student receiving special education services, a locally developed course is an appropriate substitute for a course that meets state graduation requirements for the minimum high school program. Under current policy, however, there is no requirement for locally developed courses to be aligned with the courses for which they substitute. For example, a student taking Consumer Math or Fundamentals of Math to substitute for Algebra I or Geometry may not receive adequate instruction in the Texas essential knowledge and skills (TEKS) for Algebra I or Geometry, which are both required to be assessed through end-of-course (EOC) assessments. Therefore, a student taking a locally developed course as a substitute for an assessed course would not be prepared to participate in a state assessment. This would include students receiving special education services participating in the general assessments as well as alternate assessments.

Beginning with the 2011-2012 school year, school districts will be required to review the content of locally developed courses for alignment with the TEKS to ensure students receive instruction that is aligned with the required course and respective EOC assessment.

A stakeholder meeting of parents, advocates, school districts, support personnel organizations, and teacher and administrator organizations was convened in August 2010 during the development of the proposed rule changes. Section 89.1070 would be amended to reflect assessment and curriculum requirements for graduation as required by HB 3, as follows.

Subsection (b)(1) would be amended to update language relating to assessments and include a reference to the performance standards established in the TEC, Chapter 39. Subsection (b)(1) - (3) would be amended to include references to the curriculum standards a special education student may be required to complete to graduate and be awarded a high school diploma. Subsection (b)(2) would be amended to clarify the role of the ARD committee in determining the level of performance necessary for graduation.

In addition, to more clearly organize the four conditions under which a student with a disability can graduate, the section would be reorganized to move current subsections (c) and (d) to new subsection (b)(3) and (4). Subsequent subsections would be re-lettered accordingly. Technical corrections to update cross references would also be made.

The proposed amendment would ensure that a locally developed course substituting for an assessed course must be aligned with the curriculum standards. The proposed amendment would not add any new reporting requirements; however, new Public Education Information Management System (PEIMS) codes would be created to correspond with courses for which modified and alternate EOC assessments would be developed.

The proposed amendment would have no new locally maintained paperwork requirements.

Ann Smisko, associate commissioner for school improvement and support, has determined that for the first five-year period the amendment is in effect there will be no additional costs for state or local government as a result of enforcing or administering the amendment.

Dr. Smisko has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amendment would be aligning the rule with HB 3 and providing school districts with specific reference to the new state requirements that provide for the education of students with disabilities. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

The public comment period on the proposal begins October 15, 2010, and ends November 15, 2010. 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. A public hearing on the proposed amendment has been scheduled for Tuesday, October 19, 2010, at 9:00 a.m. The public hearing will be conducted through the Texas Education Telecommunications Network (TETN) at each of the 20 regional education service centers. Information about the public hearing can be found on the TEA website at http://www.tea.state.tx.us/special.ed/rules/proprule.html. Questions about the public hearing should be directed to the TEA Division of IDEA Coordination at (512) 463-9414.

The amendment is proposed under 34 Code of Federal Regulations (CFR), §300.100, which requires states to have policies and procedures in place to ensure that they meet the conditions in 34 CFR, §§300.101-300.176; 34 CFR, §300.160, which requires states to ensure that all children with disabilities are included in all state and districtwide assessment programs with appropriate accommodations and alternate assessments, if necessary, as indicated in their respective individualized education programs; TEC, §28.0212, which provides that a student's individualized education program may be used as the student's personal graduation plan; TEC, §28.0213, which provides that a student's admission, review, and dismissal committee shall design an intensive program of instruction for a student who does not perform satisfactorily on a required state assessment; TEC, §29.001, which authorizes the commissioner of education to adopt rules for the administration and funding of the special education program; TEC, §29.003, which authorizes the commissioner to develop specific eligibility criteria for the special education program; TEC, §29.005(a), which requires that a committee composed of the persons required under 20 USC, §1401(11), develop a student's individualized education program; TEC, §39.023(c), which requires the agency to adopt end-of-course assessment instruments for certain core academic courses and provides that a student's admission, review, and dismissal committee shall determine whether any allowable modification is necessary in administering to the student an end-of-course assessment; and TEC, §42.003, which outlines the student eligibility requirements for the benefits of the Foundation School Program.

The amendment implements 34 CFR, §300.100 and §300.160, and the TEC, §§28.0212, 28.0213, 29.001, 29.003, 29.005(a), 39.023(c), and 42.003.