The Texas Education Agency (TEA) proposes amendment to §89.1070, concerning special education services. The section addresses graduation requirements for students receiving special education services. The proposed amendment would reflect changes made to the state's assessment graduation requirements by Senate Bill (SB) 149, 84th Texas Legislature, Regular Session, 2015.

SB 149, 84th Texas Legislature, Regular Session, 2015, revised the state's assessment graduation requirements for students in general education by allowing alternative methods for graduation for students classified in Grades 11 or 12 during the 2014-2015, 2015-2016, or 2016-2017 school years who have taken each end-of-course (EOC) assessment but have failed to achieve the EOC assessment performance requirements in no more than two courses. Since SB 149 allows certain students in general education to graduate under any available graduation program without achieving satisfactory performance on each of the EOC assessments, the rule applicable to students receiving special education services requires amendment.

The proposed amendment to 19 TAC Chapter 89, Subchapter AA, Division 2, §89.1070, Graduation Requirements, would reflect the changes to the graduation requirements for students receiving special education services by amending language in §89.1070 to specify that a student receiving special education services who has failed to achieve the EOC assessment graduation requirements for no more than two courses may graduate under the Recommended or Distinguished Achievement High School Programs or may graduate under the Foundation High School Program with endorsements if all other requirements are met. These provisions in new §89.1070(d), (f), and (g)(2) are effective only with the 2014-2015, 2015-2016, and 2016-2017 school years. Corresponding technical edits would be made throughout the rule.

This amendment was submitted for adoption on an emergency basis simultaneous to the submission as proposed. SB 149 modifies the state's assessment requirements for graduation beginning with the 2014-2015 school year. The proposal will allow a student who receives special education services, who has taken all EOC assessments but has failed to pass no more than two of the assessments, to graduate under the Recommended or Distinguished Achievement High School Programs or to graduate under the Foundation High School Program with endorsements if all other requirements are met.

The TEA is determining reporting implications at this time. The proposed amendment may increase locally maintained paperwork for school districts and charter schools. Locally maintained paperwork may increase for areas concerning convening of additional admission, review, and dismissal (ARD) committee meetings, communications with parents, the provision of translators for non-English speaking guardians, and reporting the number of students graduating based on graduation under SB 149.

Monica Martinez, associate commissioner for standards and programs, has determined that for the first five-year period the amendment is in effect there will be no additional costs for state government as a result of enforcing or administering the rule action; however, there would be costs to local government. There would be costs to districts and charters to facilitate an ARD committee meeting and to communicate with parents regarding the changes in state law. The TEA cannot estimate the costs of additional ARD committee meetings at the district level. These costs will vary from district to district depending on the ARD procedures that a district implements and the number of students who may need to have an ARD committee reevaluate the students' testing requirements for graduation.

Ms. Martinez has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the rule action will be the alignment of the assessment requirements applicable to students receiving special education services with those applicable to students in general education resulting from SB 149, 84th Texas Legislature, Regular Session, 2015. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

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 June 5, 2015, and ends July 6, 2015. 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.texas.gov or faxed to (512) 463-5337. Public hearings on the proposed amendment have been scheduled for Monday, June 15, 2015, and Wednesday, June 17, 2015, in Room 1-111, William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701. The public hearing on June 15, 2015, will be held from 10:00 a.m. to 1:00 p.m. The public hearing on June 17, 2015, will be held from 9:00 a.m. to 12:00 p.m. Questions about the scheduled public hearings on the proposed amendment to §89.1070, Graduation Requirements, should be directed to the TEA's Division of Federal and State Education Policy at (512) 463-9414.

The amendment is proposed under the Texas Education Code (TEC), §29.001, which authorizes the commissioner to develop, and modify as necessary, a statewide design, consistent with federal law, for the delivery of services to children with disabilities in this state that includes rules for the administration and funding of the special education program so that a free appropriate public education is available to all of those children between the ages of three and 21; TEC, §29.005, which requires that a child enrolled in a special education program have an individualized education program (IEP) that is developed by an IEP team (referred to in state law as the admission, review, and dismissal (ARD) committee); TEC, §28.025(c), which provides that a person may receive a diploma if the person is eligible for a diploma under TEC, §28.0258, or if: (1) the student successfully completes the curriculum requirements identified by the State Board of Education under Subsection (a) and complies with the TEC, §39.025; or (2) the student successfully completes an individualized education program developed under the TEC, §29.005; TEC, §28.025(c-6), as added by Senate Bill (SB) 149, Section 2, 84th Texas Legislature, Regular Session, 2015, which provides that a person may receive a diploma if the person is eligible for a diploma under the TEC, §28.0258; TEC, §28.0258, as added by SB 149, Section 3, 84th Texas Legislature, Regular Session, 2015, which modifies the assessment requirements for graduation for 11th or 12th grade students who have failed to comply with the end-of-course (EOC) assessment instrument performance requirements under the TEC, §39.025, for not more than two courses. The new statute further authorizes the commissioner to adopt rules as necessary to implement the statute not later than the 2015-2016 school year; TEC, §39.025(a), which authorizes the commissioner to adopt rules requiring a high school student to be administered each EOC assessment instrument listed in the TEC, §39.023(c), and specifies that a student may not receive a high school diploma until the student has performed satisfactorily on EOC assessment instruments; TEC, §39.025(a-2), as added by SB 149, Section 4, 84th Texas Legislature, Regular Session, 2015, which provides that a student who has failed to perform satisfactorily on EOC assessment instruments may receive a high school diploma if the student qualifies for graduation under the TEC, §28.0258; and TEC, §39.025(a-4), which provides that the ARD committee of a student in a special education program under TEC, Chapter 29, Subchapter A, shall determine whether, to receive a high school diploma, the student is required to achieve satisfactory performance on EOC assessment instruments.

The amendment implements the TEC, §§28.025, 28.0258, and 39.025, as amended and added by SB 149, 84th Texas Legislature, Regular Session, 2015, and §29.001 and §29.005.