The Texas Education Agency (TEA) adopts an amendment to §89.1070, concerning special education services. The amendment is adopted without changes to the proposed text as published in the October 15, 2010, issue of the Texas Register (35 TexReg 9205) and will not be republished. The section specifies graduation requirements for students receiving special education services. The adopted amendment reflects 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 has been 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 rule changes. Section 89.1070 has been amended to reflect assessment and curriculum requirements for graduation as required by HB 3, as follows.

Subsection (b)(1) was 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) was 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) was 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 was reorganized to move current subsections (c) and (d) to new subsection (b)(3) and (4). Subsequent subsections were re-lettered accordingly and technical corrections were made to update cross references.

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

The adopted amendment has no new locally maintained paperwork requirements.

The TEA determined that 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 began October 15, 2010, and ended November 15, 2010. In addition, a public hearing on the proposed amendment was conducted on October 19, 2010, through the Texas Education Telecommunications Network (TETN) at each of the 20 regional education service centers. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses regarding the proposed amendment to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services, Division 2, Clarification of Provisions in Federal Regulations and State Law, §89.1070, Graduation Requirements.

Comment: An educator asked if the new EOCs will be modified like TAKS (Accommodated) or TAKS-M or will special education students take the same EOC as Algebra I or Geometry students.

Agency Response: The agency offers the following clarification. For students receiving special education services, modified and alternate versions of the State of Texas Assessments of Academic Readiness (STAAR) will be developed, although not all 12 end-of-course assessments will be developed because Algebra II, chemistry, and physics courses are not required on the Minimum High School Program (MHSP) and all students taking STAAR modified and alternate assessments are on the MHSP as they receive modified instruction. The current plan is to develop both modified and alternate versions of the following EOC assessments beginning in 2012: Algebra I, Geometry, English I, English II, Biology, and World Geography. Modified and alternate versions of English III, World History, and US History will be developed in future years.

Comment: An educator suggested revising §89.1070(b)(3) to add "must" prior to the phrase "meet one of the following" to read, "The student graduating under this subsection must also successfully complete the student's individualized education program (IEP) and must meet one of the following conditions, consistent with the IEP."

Agency Response: The agency disagrees and has maintained language as published as proposed. The language accurately reflects requirements in rule and, therefore, the suggested grammatical change is not necessary.

Comment: An educator recommended revising §89.1070(b)(3)(A)-(C) to reflect the language in the State Performance Plan Indicators 13 and 14. The educator also recommended eliminating §89.1070(e).

Agency Response: The agency disagrees and has maintained language as published as proposed. Language in the State Performance Plan is subject to change on an annual basis, which could necessitate changing the rule annually to preserve alignment. Section 89.1070(e), as written, defines terms referenced in §89.1070(b)(3)(A).

Comment: An educator recommended revising §89.1070(b)(4) to provide an option that would allow students to graduate and be awarded a regular high school diploma under the minimum high school program upon completion of the number of credits set by the ARD committee. The educator further suggested adding language to clarify that students who have not completed the credit requirements for graduation may be awarded a certificate of attendance.

Agency Response: The agency disagrees and has maintained language as published as proposed. Students who no longer meet the age eligibility requirements and have completed the requirements specified in their IEPs may be awarded a regular high school diploma. The ARD committee does not have the authority to establish the number of credits required for graduation. In addition, there is no provision in state law that authorizes school districts to issue certificates of attendance. School districts may only issue diplomas and certificates of coursework completion.

The amendment is adopted 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.