The Texas Education Agency (TEA) proposes amendments to §§89.1201, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1225, 89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, and 89.1265 and new §§89.1203, 89.1227, 89.1228, 89.1267, and 89.1269, concerning the state plan for educating limited English proficient students. The sections establish rules to guide the implementation of bilingual education and special language programs. The proposed revisions would clarify that bilingual education and English as a second language (ESL) programs must be selected from certain program models in alignment with statute, amend and clarify provisions relating to the language proficiency assessment committee in alignment with statute, and clarify requirements for serving students who are English language learners and also qualify for special education services. Rules related to dual language instruction would be incorporated into this subchapter to clarify the relationship between bilingual education and dual language instruction. The term limited English proficient would be changed throughout the subchapter to align with current terminology. In addition, technical changes to correct cross-references to other administrative rules would be made.

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, and amended April 18, 2002, and September 17, 2007, 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 education 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, and evaluation. During the recent statutorily required review of rules in 19 TAC Chapter 89, staff identified the need to update rules.

The proposed revisions to 19 TAC Chapter 89, Subchapter BB, include the following.

Section 89.1201, Policy, would be amended to update terminology.

Proposed new §89.1203, Definitions, would be added to define terms used in this subchapter.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, would be amended to clarify that bilingual and ESL programs must be selected from the program models outlined in statute and explained in §89.1210.

Section 89.1207, Exceptions and Waivers, would be amended to change the deadline for exceptions and waivers from October 1 of each year to November 1 of each year to accommodate a later school start date required by statute.

Section 89.1210, Program Content and Design, would be amended to add descriptions of the various bilingual education and ESL program models to align with requirements of Senate Bill (SB) 1871, 80th Texas Legislature, 2007.

Section 89.1215, Home Language Survey, would be amended with minor, technical edits.

Section 89.1220, Language Proficiency Assessment Committee, would be amended to add a campus administrator to the composition of the LPAC to align with requirements in statute. Additional changes would clarify documentation requirements for English language learners, more appropriately reference norm-referenced standardized achievement instruments, and specify that four weeks is equivalent to 20 school days. Additionally, the section would be amended to permit a district to identify, exit, or place a student in a program without written approval from the student's parent or guardian under certain circumstances.

Section 89.1225, Testing and Classification of Students, would be amended to clarify that tests used for identification, exit, and placement of students must be re-normed every eight years to align with timelines for requirements of similar tests included in statute.

Proposed new §89.1227, Minimum Requirements for Dual Language Immersion Program Model, and proposed new §89.1228, Dual Language Immersion Program Model Implementation, would incorporate language from 19 TAC Chapter 89, Subchapter FF, which is proposed for repeal, to clarify the relationship between bilingual education and dual language instruction.

Section 89.1230, Eligible Students with Disabilities, would be amended to clarify the requirements for serving students who are English language learners and who also qualify for special education services.

Section 89.1233, Participation of Nonlimited English Proficiency Students, would be amended to update terminology. The section title would also be updated.

Section 89.1235, Facilities, would be amended to reference facilities instead of schools to address the use of newcomer centers. Amendments in this section would also clarify the limit on the amount of time a student may be housed at a newcomer center.

Section 89.1240, Parental Authority and Responsibility, would be amended to update terminology.

Section 89.1245, Staffing and Staff Development, would be amended to update the reference to the rule regarding exceptions and waivers and change the application deadline to match language in §89.1207.

Section 89.1250, Required Summer School Programs, would be amended to clarify eligibility for students to enroll in the summer school program.

Section 89.1265, Evaluation, would be amended to delete a reference to a section of Chapter 89 that no longer exists.

Proposed new §89.1267, Standards for Evaluation of Dual Language Immersion Program Models, and proposed new §89.1269, General Standards for Recognition of Dual Language Immersion Program Models, would incorporate language from 19 TAC Chapter 89, Subchapter FF, which is proposed for repeal, to clarify the relationship between bilingual education and dual language instruction.

In addition, the subchapter title would change to "Commissioner's Rules Concerning State Plan for Educating English Language Learners."

The proposed rule actions would have no new procedural or reporting implications. The proposed rule actions would have no new locally maintained paperwork requirements.

Anita Givens, associate commissioner for standards and programs, has determined that for the first five-year period the amendments and new sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule actions.

Ms. Givens has determined that for each year of the first five years the amendments and new sections are in effect the public benefit anticipated as a result of enforcing the amendments and new sections would be further clarification of the rules for serving English language learners. There is no anticipated economic cost to persons who are required to comply with the proposed amendments and new sections.

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 March 16, 2012, and ends April 16, 2012. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Rulemaking, 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) 463-5337. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on March 16, 2012.

The amendments and new sections are proposed under the Texas Education Code (TEC), §29.056, which authorizes the agency to establish standardized criteria for the identification, assessment, and classification of students of limited English proficiency eligible for entry into the program or exit from the program; the TEC, §29.053, which authorizes the agency to establish a procedure for identifying school districts that are required to offer bilingual education and special language programs in accordance with the TEC, Chapter 29, Subchapter B; and the TEC, §29.066, which requires the commissioner to adopt rules to classify bilingual education and special language programs. In addition, the TEC, §29.051, addresses state policy relating to bilingual education and special language programs. The TEC, §29.054, addresses exceptions to bilingual education programs. The TEC, §29.055, addresses program content and method of instruction for bilingual education and English as a second language programs. The TEC, §29.0561, addresses evaluation and reenrollment of exited bilingual students. The TEC, §29.057, addresses facilities and classes for bilingual education and special language programs. The TEC, §29.058, addresses enrollment of students who do not have limited English proficiency. The TEC, §29.059, addresses cooperation among districts to provide bilingual education and special language programs. The TEC, §29.060, addresses preschool, summer school, and extended time programs for bilingual and special language programs. The TEC, §29.063, addresses language proficiency assessment committees. The TEC, §29.064, addresses appeals by parents of students enrolled in bilingual education or special language programs.

The amendments and new sections implement the Texas Education Code, §§29.051, 29.053-29.060, 29.063, 29.064, and 29.066.