The Texas Education Agency (TEA) proposes amendments to §§89.1011, 89.1040, 89.1050, 89.1053, 89.1055, 89.1065, 89.1070, 89.1075, 89.1076, 89.1121, 89.1131, 89.1150, and 89.1195; the repeal of §89.1015 and §89.1045; and new §89.1196 and §89.1197, concerning special education services. The sections provide clarification of provisions in federal regulations and state law and establish provisions relating to special funding, special education and related service personnel, and dispute resolution. The proposed rule actions include amendments, repeals, and new rules related to: timelines for initial special education evaluations and initial admission, review, and dismissal (ARD) committee meetings; procedures related to ARD committee meetings; and requirements related to evaluations for students who have or who are suspected of having a visual impairment, use of restraint by peace officers, post-secondary transition, extended school year services, and teachers' requests for review of students' individualized education programs (IEPs) pursuant to state and federal law. In response to requirements of the 83rd Texas Legislature, Regular Session, 2013, the proposed rule actions would also modify graduation requirements, establish guidelines for school districts and charter schools to implement facilitated IEP meetings, and create a state IEP facilitation program.

Changes to special education requirements resulting from the 82nd and 83rd Texas Legislatures affected multiple sections of 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services. Accordingly, the affected rules require revisions in order to be aligned with the relevant changes to statute.

The proposed revisions to 19 TAC Chapter 89, Subchapter AA, Divisions 2, 4, 5, and 7 include amendments, repeals, and new rules to provide clarity and to comply with the requirements of the Individuals with Disabilities Education Act (IDEA) and relevant requirements in the Texas Education Code (TEC), as follows.

Division 2. Clarification of Provisions in Federal Regulations and State Law

Section 89.1011, Referral for Full and Individual Initial Evaluation, would be amended to align the rule with changes to the TEC, §29.004, made by Senate Bill (SB) 816, 83rd Texas Legislature, Regular Session, 2013, which altered the timelines for initial special education evaluations. The proposed amendment would also revise the timelines for initial ARD committee meetings as a result of changes to the TEC, §29.004, made by SB 816, 83rd Texas Legislature, Regular Session, 2013, which also altered timelines for certain initial ARD committee meetings. The section title would be changed to "Full Individual and Initial Evaluation."

Section 89.1015, Time Line for All Notices, would be repealed and relevant requirements would be revised and moved to §89.1050 to clarify for parents and school districts the notices required by 34 Code of Federal Regulations (CFR), §300.322 and §300.503.

Section 89.1040, Eligibility Criteria, would be amended to replace references to mental retardation with intellectual disability. The proposed amendment would also include technical edits and address changes resulting from House Bill (HB) 590, 83rd Texas Legislature, Regular Session, 2013, with regard to evaluations for students who are suspected of having or who have visual impairments.

Section 89.1045, Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings, would be repealed and relevant ARD committee requirements would be moved to §89.1050.

Section 89.1050, The Admission, Review, and Dismissal (ARD) Committee, would be amended to include requirements moved from 19 TAC §89.1015 and §89.1045 that amend ARD committee procedures in response to changes resulting from SB 816, 83rd Texas Legislature, Regular Session, 2013. The proposed amendment would also include technical edits, and the section title would be changed to remove the acronym.

Section 89.1053, Procedures for Use of Restraint and Time-out, would be amended to address restraint by peace officers as a result of changes to TEC, §37.0021, made by HB 359, 82nd Texas Legislature, Regular Session, 2011. The proposed amendment would also include technical edits.

Section 89.1055, Content of the Individualized Education Program (IEP), would be amended to make minor technical edits and to make changes to the age for transition programming as a result of changes to TEC, §29.0111, made by SB 1788, 82nd Texas Legislature, Regular Session, 2011. The amendments would also incorporate transition programming requirements found at 34 CFR, §300.320(b). The section title would be changed to remove the acronym.

Section 89.1065, Extended School Year Services (ESY Services), would be amended to allow the use of a student's documented regression in one or more critical areas addressed in his or her current IEP goals when the student's ARD committee makes the determination as to whether the student requires ESY services. The proposed amendment would also include technical edits, and the section title would be changed to remove the abbreviated term.

Section 89.1070, Graduation Requirements, would be amended to reflect changes to graduation requirements as a result of HB 5, 83rd Texas Legislature, Regular Session, 2013.

Section 89.1075, General Program Requirements and Local District Procedures, would be amended to incorporate changes to the TEC, §29.001, made by HB 1335, 82nd Texas Legislature, Regular Session, 2011, relating to a teacher's right to request a review of a student's IEP. The proposed amendment would include minor technical edits.

Section 89.1076, Interventions and Sanctions, would be amended to update a cross reference to statute. The proposed amendment would also include technical edits.

Division 4. Special Education Funding

Section 89.1121, Distribution of State Funds, would be updated to reference the Student Attendance Accounting Handbook and the adjusted basic allotment (ABA) or adjusted allotment (AA). The proposed amendment would also include technical edits.

Division 5. Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, would be amended with minor technical edits to remove references to systems that no longer exist and to update terminology related to "educational aides."

Division 7. Dispute Resolution

Section 89.1150, General Requirements, would be amended to reflect additional dispute resolution options related to local and state-sponsored facilitated IEP meetings.

Section 89.1195, Special Education Complaint Resolution, would be amended to make minor technical edits.

Proposed new §89.1196, Individualized Education Program Facilitation, would create a new rule required by the TEC, §29.019, resulting from SB 542, 83rd Texas Legislature, Regular Session, 2013, related to facilitated IEP meeting programs established and maintained by school districts and charter schools.

Proposed new §89.1197, State Individualized Education Program Facilitation, would create a new rule required by the TEC, §29.020, resulting from SB 542, 83rd, Texas Legislature, Regular Session, 2013, related to establishing a state facilitated IEP project.

The proposed rule actions would have the following procedural and reporting implications. The reporting requirements found in proposed 19 TAC §89.1053 are already in place as a result of actions taken by the 82nd Texas Legislature, Regular Session, 2011. School districts and charter schools are already required to submit data for the State Performance Plan to TEA related to the completion of initial special education evaluations and related to secondary transition programming. The proposed amendment to the rule does not affect those data reporting requirements. There will be forms related to proposed new 19 TAC §89.1197 that school districts, charter schools, and parents will be required to use in order to request a state-funded facilitated IEP meeting and to evaluate the program.

The proposed rule actions would have no new locally maintained paperwork requirements.

Monica Martinez, associate commissioner for standards and programs, has determined that for the first five-year period the rule actions are in effect there will be no fiscal implications for state government; however, there may be fiscal implications for persons and entities required to comply with the proposed amendment to 19 TAC §89.1040 and proposed new 19 TAC §89.1196.

The proposed amendment to 19 TAC §89.1040, Eligibility Criteria, may require school districts and open-enrollment charter schools to have significant costs associated with hiring certified orientation and mobility specialists but it is not possible to determine an estimated cost because the needs of each district will vary.

Proposed new 19 TAC §89.1196, Individualized Education Program Facilitation, may have implications for school districts and open-enrollment charter schools as well as individuals and small businesses or microbusinesses. The costs for local government is not known, however, as each school district or charter school has the ability to decide if it will offer facilitated IEP meetings and, if the entity does decide to offer facilitation, the entity is able to make the determination as to what resources it will use to implement facilitation locally. The costs for districts or charter schools to contract with independent facilitators will vary from facilitator to facilitator and from meeting to meeting. Therefore, it is not possible to determine an estimated cost. Any costs to offer the facilitation outside of those offered by the TEA would be voluntary.

Ms. Martinez has determined that for each year of the first five years the rule actions are in effect the public benefit anticipated as a result of enforcing the rule actions will be to update and clarify rules for special education services to comply with the requirements of the IDEA and the TEC. There may be economic costs to persons who are required to comply with the proposed new 19 TAC §89.1196; however, these costs are not known. Districts and charter schools will be required to ensure that the facilitators they use are properly trained. This training may or may not cost additional monies, depending on whether new facilitators must be trained or if current facilitators must be retrained. Training costs may be covered by districts or charters or the costs could be passed to individuals who want to receive training.

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. It is not known if complying with proposed new 19 TAC §89.1196 will cause an increase in revenues to small businesses or microbusinesses. Some contractors who work as IEP meeting facilitators and some companies involved in training IEP meeting facilitators may see an increase in revenues if districts or charter schools hire them to train staff members in IEP meeting facilitation and/or to provide IEP meeting facilitation services.

The public comment period on the proposal begins June 13, 2014, and ends July 14, 2014. 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.

Public hearings on the proposed rule actions have been scheduled for Wednesday, June 25, 2014, and Friday, June 27, 2014, in Room 1-100, William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701. The public hearing on June 25 will be held 10:00 a.m.-3:00 p.m. The public hearing on June 27 will be held 8:30 a.m.-1:30 p.m. Questions about the scheduled public hearings should be directed to the TEA Division of Special Education at (512) 463-9414.

The amendments are proposed under the Texas Education Code (TEC), §29.001, which authorizes the commissioner of education to adopt rules for the delivery of services to children with disabilities in the state that include rules for the administration and funding of the special education program; TEC, §29.004, as amended by Senate Bill 816, 83rd Texas Legislature, Regular Session, 2013; which authorizes the commissioner to adopt rules relating to timeframes for a full individual and initial evaluation; TEC, §29.011, which authorizes the commissioner to by rule adopt procedures for compliance with federal requirements relating to transition; TEC, §29.0111, which establishes requirements for the beginning of transition planning; TEC, §30.002, as amended by House Bill 590, 83rd Texas Legislature, Regular Session, 2013, which authorizes the commissioner to adopt rules for the administration of the statewide plan for education students with visual impairments; and TEC, §37.0021, which authorizes the commissioner to by rule adopt procedures for the use of restraint and time-out, and the 34 Code of Federal Regulations (CFR), Part 300, which requires states to have policies and procedures in place to ensure: (1) the provision of a free appropriate public education to children with disabilities (34 CFR, §300.100); (2) all children with disabilities are identified, located, and evaluated (34 CFR, §300.111); (3) that children with disabilities and their parents are afforded procedural safeguards (34 CFR, §300.121); (4) the provision of general supervision and compliance with monitoring and enforcement requirements (34 CFR, §300.149); (5) that one or both parents of a child with a disability are afforded the opportunity to participate in each individualized education program team meeting (34 CFR, §300.322); (6) that each public agency establishes, maintains, and implements procedural safeguards (34 CFR, §300.500); and (7) written notice must be given to the parents of a child with a disability a reasonable time before the school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate education to the child (34 CFR, §300.503).

The amendments implement the TEC, §§29.001; 29.004, as amended by Senate Bill 816, 83rd Texas Legislature, Regular Session, 2013; 29.011; 29.0111; 30.002, as amended by House Bill 590, 83rd Texas Legislature, Regular Session, 2013; and 37.0021, and 34 CFR, §§300.100, 300.111, 300.121, 300.149, 300.322, 300.500, and 300.503.