The Texas Education Agency (TEA) adopts 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 amendments to §§89.1011, 89.1040, 89.1050, and 89.1070 and new §89.1196 and §89.1197 are adopted with changes to the proposed text as published in the June 13, 2014, issue of the Texas Register (39 TexReg 4571). The amendments to §§89.1053, 89.1055, 89.1065, 89.1075, 89.1076, 89.1121, 89.1131, 89.1150, and 89.1195 and the repeal of §89.1015 and §89.1045 are adopted without changes to the proposed text as published in the June 13, 2014, issue of the Texas Register (39 TexReg 4571) and will not be republished. 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 adopted revisions 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; 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 adopted revisions 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 affect multiple sections of 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services. Accordingly, the affected rules required revisions in order to be aligned with the relevant changes to statute.

The revisions to 19 TAC Chapter 89, Subchapter AA, Divisions 2, 4, 5, and 7 include adopted 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 TEC, as follows.

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

Section 89.1011, Referral for Full and Individual Initial Evaluation, is amended to align the rule with changes to the TEC, §29.004, made by SB 816, 83rd Texas Legislature, Regular Session, 2013, which alters the timelines for initial special education evaluations. The adopted amendment also revises 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 alters timelines for certain initial ARD committee meetings. The section title is changed to read, "Full Individual and Initial Evaluation."

Based on public comments, §89.1011(e) is modified at adoption to add language that reads, "If an initial evaluation completed not later than June 30 indicates that the student will need extended school year services during that summer, the ARD committee must meet as expeditiously as possible."

Section 89.1015, Time Line for All Notices, is repealed, and relevant requirements are revised and moved to §89.1050 to clarify for parents and school districts the notices required by 34 CFR, §300.322 and §300.503.

Section 89.1040, Eligibility Criteria, is amended to replace references to mental retardation with intellectual disability. The adopted amendment also includes technical edits and addresses changes resulting from HB 590, 83rd Texas Legislature, Regular Session, 2013, with regard to evaluations for students who are suspected of having or who have visual impairments.

Based on public comments, §89.1040(c)(12)(A)(ii)(I) is modified at adoption to remove the phrase, "and an orientation and mobility evaluation." Section 89.1040(c)(12)(A)(ii)(I) is also modified to read in part, "a functional vision evaluation by a certified teacher of students with visual impairments or a certified orientation and mobility specialist." In §89.1040(c)(12)(B), the word "Braille" was lowercased.

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

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

Based on public comment, §89.1050(d) is modified at adoption to add language that reads, "Additionally, a school district must allow parents who cannot attend an ARD committee meeting to participate in the meeting through other methods such as through telephone calls or video conferencing."

Section 89.1053, Procedures for Use of Restraint and Time-out, is 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 adopted amendment also includes technical edits.

Section 89.1055, Content of the Individualized Education Program (IEP), is 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 adopted amendment also incorporates transition programming requirements found at 34 CFR, §300.320(b). The section title is changed to remove the acronym.

Section 89.1065, Extended School Year Services (ESY Services), is 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 adopted amendment also includes technical edits, and the section title is changed to remove the abbreviated term.

Section 89.1070, Graduation Requirements, is amended to reflect changes to graduation requirements as a result of HB 5, 83rd Texas Legislature, Regular Session, 2013. A technical correction is made to §89.1070(a) at adoption to provide applicable cross references relating to graduation options.

Section 89.1075, General Program Requirements and Local District Procedures, is 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 adopted amendment also includes minor technical edits.

Section 89.1076, Interventions and Sanctions, is amended to update a cross reference to statute. The adopted amendment also includes technical edits.

Division 4. Special Education Funding

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

Division 5. Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, is 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 Provisions, is amended to reflect additional dispute resolution options related to local and state-sponsored facilitated IEP meetings.

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

Section 89.1196, Individualized Education Program Facilitation, is 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.

Based on a change made at adoption to §89.1197(m)(4) resulting from public comment, §89.1196(g)(4) is modified at adoption in order to maintain consistency between the two rules. Section 89.1196(g)(4) now reads, "ensuring that each committee member has an opportunity to participate."

Additionally, based on a change made at adoption to §89.1197(m)(6) resulting from public comment, §89.1196(g)(6) is modified at adoption in order to maintain consistency between the two rules. Section 89.1196(g)(6) now reads, "helping to keep the ARD committee on task so that the meeting purposes can be accomplished within the time allotted for the meeting."

Section 89.1197, State Individualized Education Program Facilitation, is 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.

Based on public comment, §89.1197(e)(2) is modified at adoption to read, "The dispute must relate to an ARD committee meeting in which mutual agreement about one or more of the required elements of the IEP was not reached and the parties have agreed to recess and reconvene the meeting in accordance with §89.1050(f) of this title (relating to The Admission, Review, and Dismissal Committee)."

Additionally, to address a comment related to completing the facilitation request form, the Texas Education Agency (TEA) will provide guidance on the form for how to request a state facilitation rather than making such a modification to the rule at adoption.

Based on public comment, §89.1197(m)(4) is modified at adoption to read "participate" rather than "speak and be heard."

Finally, based on public comment, §89.1197(m)(6) is modified at adoption to read, "helping to keep the ARD committee on task so that the meeting purposes can be accomplished within the time allotted for the meeting."

The adopted rule actions have the following procedural and reporting implications. The reporting requirements found in adopted 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 the TEA related to the completion of initial special education evaluations and related to secondary transition programming. The adopted amendment to the rule does not affect those data reporting requirements.

There are forms related to new 19 TAC §89.1197 that school districts, charter schools, and parents are required to use in order to request a state-funded facilitated IEP meeting and to evaluate the program.

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. It is not known if complying with 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 began June 13, 2014, and ended July 14, 2014, and public hearings on the proposed rule actions were held Wednesday, June 25, 2014, and Friday, June 27, 2014. Following is a summary of the public comments received and corresponding agency responses regarding the proposed revisions 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, Division 4, Special Education Funding, Division 5, Special Education and Related Service Personnel, and Division 7, Dispute Resolution.

General Comments

Comment: An attorney and an individual who provided a list of names of individuals and organizations that purportedly support her comments indicated overall disagreement with the proposed rules. The individual also contended that the agency overstepped its rulemaking authority on a variety of points.

Agency Response: The agency disagrees. Before submitting the proposed rules to the Texas Register, the agency obtained input from parents of students with disabilities, teachers, administrators, attorneys, and representatives from a variety of educator and student-advocacy groups. Additionally, the Texas Education Code provides explicit rulemaking authority.

§89.1011, Full Individual and Initial Evaluation.

Comment: The Arc of Texas (The Arc), Disability Rights Texas (DRTx), and the Texas Council for Developmental Disabilities (TCDD) recommended that proposed §89.1011 require local educational agencies (LEAs) to inform families if a student's initial evaluation will not be completed on time.

Agency Response: The agency disagrees. LEAs are required to complete initial evaluations within the required timelines.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments contended that the proposed revisions to §89.1011 inappropriately allow the timelines for initial evaluations found in Texas Education Code (TEC), §29.004, to apply to reevaluations as well.

Agency Response: The agency disagrees. The term "full individual and initial evaluation" comes directly from TEC, §29.004, and the timelines in the statute and the rule are limited to initial evaluations.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1011(a) include a timeline and further clarification of when a referral for an initial evaluation must be made. The commenters expressed concern that students receiving response to intervention (RtI) services may remain in RtI programs longer than necessary.

Agency Response: The agency disagrees. The amount of time a student remains in an RtI program must be determined on an individualized basis. A student's parents and educators are best able to judge when a referral should take place.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments asserted that changing the word "shall" to "must" in proposed §89.1011(a) will significantly impact the initial referral for special education because it may lead to the belief that the use of interventions must precede an initial referral.

Agency Response: The agency disagrees. The words "shall" and "must" generally have the same meaning. The intent of the change is merely to use a term that is more commonly used in everyday speech.

Comment: DRTx recommended that proposed §89.1011(b) specify the steps that should be taken when LEA personnel make special education referrals.

Agency Response: The agency disagrees. LEAs are in the best position to determine local policies and guidelines for handling special education referrals from personnel.

Comment: The Arc, DRTx, and TCDD commented that proposed §89.1011(b) should include a definition of "district administrative employee."

Agency Response: The agency disagrees. The use of "district administrative employee" in §89.1011(b) is consistent with TEC, §29.004. LEAs are in the best position to determine who meets the definition of "district administrative employee."

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments contended that proposed §89.1011(b) may result in a time frame that is longer than the 15-school-day time frame required by TEC, §29.004.

Agency Response: The agency disagrees. The language in the rule is consistent with TEC, §29.004(c)(1), which states that, after the parent makes a written request for a full individual and initial evaluation, an LEA has 15 school days within which to "provide an opportunity for the parent or legal guardian to give written consent for the evaluation."

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that requiring a written request for an initial evaluation in proposed §89.1011(b) may create a burden for some families.

Agency Response: The agency disagrees. The rule conforms to TEC, §29.004(c), which establishes that it is a parent's written request for a full individual and initial evaluation that triggers the beginning of the 15-school-day time frame within which an LEA must respond by either providing the parent with an opportunity to give written consent or refusing to evaluate a student and providing the parent with notice of procedural safeguards.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1011(b)(1) require that LEAs provide parents with an acknowledgement of receipt of consent for evaluation.

Agency Response: The agency disagrees with the proposed change, as it would create an unnecessary step in the evaluation process.

Comment: The Arc, DRTx, and TCDD recommended that the first sentence of proposed §89.1011(c) include a reference to 34 Code of Federal Regulations (CFR), §300.306(a)(2), which requires an LEA to provide a parent a copy of the completed evaluation report and documentation of eligibility at no cost to him or her.

Agency Response: The agency disagrees. The focus of §89.1011 is to clarify the timelines for initial evaluations. The recommendation goes beyond the scope of the proposed rule.

Comment: The Texas State Teachers Association (TSTA) recommended that proposed §89.1011(c) include language that excludes school days used for benchmark testing and district-required assessments in the computation of the timeline within which an LEA must complete a full individual and initial evaluation and the written report.

Agency Response: The agency disagrees. The recommendation would be inconsistent with TEC, §29.004.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments stated that the timeline established by proposed §89.1011(c)(1) could result in an LEA taking at least four to five months to complete an initial evaluation.