The Texas Education Agency (TEA) adopts 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 amendments to §§89.1201, 89.1205, 89.1207, 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 are adopted without changes to the proposed text as published in the March 16, 2012, issue of the Texas Register (37 TexReg 1874) and will not be republished. The amendment to §89.1210 is adopted with changes to the proposed text as published in the March 16, 2012, issue of the Texas Register. The sections establish rules to guide the implementation of bilingual education and special language programs. The adopted revisions 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 are incorporated into this subchapter to clarify the relationship between bilingual education and dual language instruction. The term limited English proficient is changed throughout the subchapter to align with current terminology. In addition, technical changes to correct cross-references to other administrative rules have been 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 adopted revisions to 19 TAC Chapter 89, Subchapter BB, include the following.

Section 89.1201, Policy, is amended to update terminology. No changes were made to this section since published as proposed.

Adopted new §89.1203, Definitions, is added to define terms used in this subchapter. No changes were made to this section since published as proposed.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, is amended to clarify that bilingual and ESL programs must be selected from the program models outlined in statute and explained in §89.1210. No changes were made to this section since published as proposed.

Section 89.1207, Exceptions and Waivers, is 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. No changes were made to this section since published as proposed.

Section 89.1210, Program Content and Design, is 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. In response to public comment, subsection (d)(4)(B) was modified at adoption to remove language relating to dominant English speakers from the dual language immersion/one-way program model.

Section 89.1215, Home Language Survey, is amended with minor, technical edits. No changes were made to this section since published as proposed.

Section 89.1220, Language Proficiency Assessment Committee, is amended to add a campus administrator to the composition of the LPAC to align with requirements in statute. Additional changes 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 is 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. No changes were made to this section since published as proposed.

Section 89.1225, Testing and Classification of Students, is 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. No changes were made to this section since published as proposed.

Adopted new §89.1227, Minimum Requirements for Dual Language Immersion Program Model, and adopted new §89.1228, Dual Language Immersion Program Model Implementation, incorporate language from 19 TAC Chapter 89, Subchapter FF, which has been repealed, to clarify the relationship between bilingual education and dual language instruction. No changes were made to these sections since published as proposed.

Section 89.1230, Eligible Students with Disabilities, is amended to clarify the requirements for serving students who are English language learners and who also qualify for special education services. No changes were made to this section since published as proposed.

Section 89.1233, Participation of Nonlimited English Proficiency Students, is amended to update terminology. The section title is also updated. No changes were made to this section since published as proposed.

Section 89.1235, Facilities, is amended to reference facilities instead of schools to address the use of newcomer centers. Amendments in this section also clarify the limit on the amount of time a student may be housed at a newcomer center. No changes were made to this section since published as proposed.

Section 89.1240, Parental Authority and Responsibility, is amended to update terminology. No changes were made to this section since published as proposed.

Section 89.1245, Staffing and Staff Development, is amended to update the reference to the rule regarding exceptions and waivers and change the application deadline to match language in §89.1207. No changes were made to this section since published as proposed.

Section 89.1250, Required Summer School Programs, is amended to clarify eligibility for students to enroll in the summer school program. No changes were made to this section since published as proposed.

Section 89.1265, Evaluation, is amended to delete a reference to a section of Chapter 89 that no longer exists. No changes were made to this section since published as proposed.

Adopted new §89.1267, Standards for Evaluation of Dual Language Immersion Program Models, and adopted new §89.1269, General Standards for Recognition of Dual Language Immersion Program Models, incorporate language from 19 TAC Chapter 89, Subchapter FF, which has been repealed, to clarify the relationship between bilingual education and dual language instruction. No changes were made to these sections since published as proposed.

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

The adopted rule actions have no new procedural or reporting implications. The adopted rule actions have 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 March 16, 2012, and ended April 16, 2012. 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: One administrator stated that the proposed language in §89.1203(2) that defines dual language immersion and states that the dual language program model is optional should be removed. The commenter expressed concerned that all program models are optional and this language may single out dual language implementation in the state.

Agency Response: The agency disagrees and maintains language as published as proposed. School districts that provide a bilingual education program may choose one of the four bilingual program models as described in §89.1210.

Comment: One teacher expressed disagreement with the proposed language in §89.1210(g) that places limits on the length of time a student is allowed to participate in an English as a Second Language (ESL) program.

Agency Response: The agency disagrees and maintains language as published as proposed. Section 89.1220(g)(5) requires language proficiency assessment committees to classify students as English proficient in accordance with the criteria described in §89.1225(h) and recommend their exit from the bilingual education or English as a second language program.

Comment: One administrator stated that the language in the proposed rule regarding a dual language immersion/one-way model should refer only to English language learners.

Agency Response: The agency agrees. Section 89.1210(d)(4)(B) has been modified to remove language relating to dominant English speakers from the dual language immersion/one-way program model.

Comment: One administrator inquired if school districts would have some flexibility concerning the proposed amendment to §89.1235 on the amount of time recent immigrant English language learners should spend in a newcomer center.

Agency Response: The agency disagrees and maintains language as published as proposed. In order for a student to have the opportunity to make adequate and timely progress toward graduation, it is important to move the student to mainstream classes at the earliest possible time.

Comment: One administrator stated that the use of the word "pull-out" in §89.1210(g)(2) is misleading and recommended either deleting the word, using it only in reference to elementary ESL classes, or distinguishing between an ESL class period at the secondary level and an ESL pull out at the elementary level.

Agency Response: The agency disagrees and maintains language as published as proposed. The term "pull-out" is the term used in statute in TEC, §29.066(b)(2)(B).

Comment: One administrator stated that there should be a third type of ESL program in rule and for use in the Public Education Information Management System (PEIMS) for students who are receiving both ESL/English for Speakers of Other Languages classes and content-based ESL/sheltered instruction.

Agency Response: The agency disagrees and maintains language as published as proposed. Under statute, TEC, §29.066, districts that are required to offer bilingual education and ESL programs must follow the statutorily required program models and reporting requirements.

Comment: One administrator inquired about having a PEIMS category for classes focusing on long-term English language learners.

Agency Response: The agency provides the following clarification. Under statute, TEC, §29.066, districts that are required to offer bilingual education and ESL programs must follow the statutorily required program models and reporting requirements.

Comment: One administrator commented that Chapter 89 and PEIMS need to reflect best practices in ESL.

Agency Response: This comment is outside the scope of the proposed rulemaking.

Comment: One administrator inquired if funding would be suspended for a student who has not met exit criteria within five years of enrolling in school but is still being served.

Agency Response: The agency provides the following clarification. Section 89.1210(d)(1)-(4) and (g)(1)-(2) specify that a student who has met exit criteria in accordance with §89.1225(h), (j), and (k) may continue to receive services, but the school district will not receive the bilingual education allotment for that student.

The amendments and new sections are adopted 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.