The Texas Education Agency (TEA) adopts an amendment to §89.1070, concerning special education services. The amendment is adopted without changes to the proposed text as published in the June 5, 2015 issue of the Texas Register (40 TexReg 3304) and will not be republished. The section addresses graduation requirements for students receiving special education services. The adopted amendment is based on changes made to the state's assessment graduation requirements by Senate Bill (SB) 149, 84th Texas Legislature, Regular Session, 2015.

REASONED JUSTIFICATION. SB 149 revised the state's assessment graduation requirements for students in general education by allowing alternative methods for graduation for students classified in Grade 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 to maintain alignment.

The adopted amendment to 19 TAC Chapter 89, Subchapter AA, Division 2, §89.1070, Graduation Requirements, reflects 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 Program 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 are made throughout the rule.

The adopted amendment incorporates procedural and reporting requirements contained in the Individuals with Disabilities Education Act that school districts must follow and does not impose any new or additional reporting requirements. The adopted amendment may increase locally maintained paperwork for school districts and charter schools. Locally maintained paperwork may increase for areas concerning convening of additional ARD committee meetings and communications with parents.

SUMMARY OF COMMENT AND AGENCY RESPONSE. The public comment period on the proposal began June 5, 2015, and ended July 6, 2015, and included public hearings that were held on Monday, June 15, 2015, and Wednesday, June 17, 2015. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses.

Comment: Disability Rights Texas (DRTx) and The Arc of Texas (The Arc) commented that SB 149, which was passed by the 84th Texas Legislature, changed how all students may graduate from high school even if they have not passed all EOC assessments and asked that the agency consider whether the proposed rule should address the role of the admission, review, and dismissal (ARD) committee in deciding whether a student with a disability who has failed to pass no more than two EOC assessments may graduate from high school.

Agency Response: The agency disagrees and provides the following clarification. As the agency explained when the proposed rule was published, the intent of SB 149 is to provide alternative methods for graduation for students in general education who are in Grade 11 or 12 during the 2014-2015, 2015-2016, or 2016-2017 school years and have taken all EOC assessments but have failed to perform satisfactorily on no more than two of the assessments. The bill's author has stated that the bill is aimed at thousands of seniors from the Class of 2015 who are in danger of not graduating because they have not passed one or more of the EOC assessments. The author has further stated that the bill is modeled after the "grade placement committees" implemented under the Student Success Initiative. In contrast to students in general education, students in special education programs have had an alternative route to graduate by virtue of TEC, §39.025(a-4), which provides that a student's ARD committee shall determine whether the student is required to achieve satisfactory performance on the EOC assessments to graduate. Under this authority, an ARD committee may determine that a student is not required to pass any or all of the EOC assessments. In addition, TEC, §28.025(c), has long provided that a student in a special education program may graduate by completing the requirements of his or her individualized education program, which may stipulate that the student complete courses with modified content. Because the graduation requirements for students receiving special education services are aligned to the maximum extent possible with the graduation requirements for students in general education, the current rule requires revision to maintain that alignment and to ensure that students receiving special education services are not required to meet a higher standard than their peers in general education. Therefore, the graduation options that require a student to achieve satisfactory performance on all of the required EOC assessments have been revised to clarify that a student who is classified in Grade 11 or 12 during the 2014-2015, 2015-2016, or 2016-2017 school year may also graduate if he or she has taken all of the EOC assessments, failed no more than two, and met all other applicable requirements.

Comment: DRTx and The Arc commented that SB 149 establishes individual graduation committees (IGCs) to decide whether a student is excused from passing the EOC assessments and asked that clarification about a student's ARD committee be added to the proposed rule. Specifically, the commenters suggested that the rule be clear that an IGC for a student with a disability must meet simultaneously with the student's ARD committee or that it state that appropriate members of the ARD committee and other necessary school personnel may function as the IGC while the full ARD committee is holding a meeting for the student.

Agency Response: The agency disagrees. As explained previously, SB 149 provides alternative methods for graduation for certain students in general education who did not have a means to graduate if they did not pass all five EOC assessments. Students receiving special education services already had alternative routes to graduate under TEC, §28.025(c) and §39.025(a-4). SB 149 does not include any specific discussion of students in special education programs, and there is nothing in the legislative history reflecting an intent that students with disabilities be subject to the IGC review process instead of the ARD committee process or that the two committees collaborate. In fact, SB 149 includes various requirements that are not easily harmonized with the requirements for a student receiving special education services. For these reasons, the agency presumes that the Texas Legislature intended to maintain the existing graduation options for students receiving special education services as well as the role of the ARD committee in making decisions for these students. The current rule merely requires revision to maintain alignment with the standards applicable to students in general education and to ensure that students receiving special education services are not required to meet a higher standard than their peers in general education.

Comment: DRTx and The Arc commented that whatever costs might be incurred by school districts and charter schools to facilitate ARD committee meetings and to communicate the changes to the graduation requirements are necessary to ensure parental participation and the opportunity for students with disabilities to graduate from high school.

Agency Response: The agency clarifies as follows. When the proposed rule was published, the agency stated that the proposed rule would have a fiscal impact on school districts and charter schools in terms of convening ARD committee meetings and communicating the changes to parents. The agency further stated that it could not estimate these costs as they would vary from district to district depending on the district's ARD committee procedures and the number of students affected by the changes.

Comment: The Arc commented that SB 149 is only a solution for the next two years and recommended that the proposed rule have a more permanent solution for students with disabilities. The Arc and the Texas Council of Administrators of Special Education asked that the agency consider incorporating the endorsement requirements outlined in House Bill 3417, which was not passed during the 84th Texas Legislative Session. Specifically, the commenters recommended that the proposed rule be modified to allow an ARD committee to determine whether a student is required to achieve satisfactory performance on EOC assessments to earn an endorsement and whether a student who takes courses with modified content may earn an endorsement.

Agency Response: The agency disagrees. The proposed rule aligns the endorsement requirements for students in special education programs with the requirements applicable to students in general education. The agency does not believe that it has the authority to modify the endorsement requirements as recommended by the commenters.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §28.025, which establishes the requirements for a high school diploma. Generally, a student may only receive a diploma by successfully completing the state curriculum requirements and performing satisfactorily on all required state assessments. The statute provides an alternative for a student who receives special education services by allowing the student to receive a diploma by successfully completing his or her individualized education plan (IEP); the TEC, §28.0258, added by SB 149, which establishes another alternative means for certain students to earn a diploma. The new section authorizes a student classified in Grade 11 or 12 during the 2014-2015, 2015-2016, or 2016-2017 school years who has failed to meet the end-of course (EOC) assessment performance requirements for not more than two courses to receive a high school diploma by meeting additional requirements. TEC, §28.0258(k), authorizes the commissioner to adopt rules as necessary to implement the section; the TEC, §39.025, which requires the commissioner to adopt rules requiring students to be administered each EOC assessment and provides that a student may not receive a diploma until the student has performed satisfactorily on the EOC assessments. However, with regard to a student in a special education program, the statute provides that the student's admission, review, and dismissal (ARD) committee determines whether the student is required to achieve satisfactory performance on EOC assessments to receive a diploma. TEC, §39.025(a-2), added by SB 149, provides that a student who has failed to perform satisfactorily on EOC assessments may receive a diploma if the student has qualified for graduation under TEC, §28.0258; the TEC, §29.001, which requires the agency to develop a statewide plan for the delivery of services to children with disabilities and prescribes certain parameters of the plan; and the TEC, §29.005, which requires a school district to establish an ARD committee consistent with the Individuals with Disabilities Education Act to develop an IEP for a student participating in a special education program. The section also establishes certain requirements in the development of the IEP.

CROSS REFERENCE TO STATUTE. 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.