The Texas Education Agency (TEA) adopts amendments to §§89.1035, 89.1040, 89.1050, 89.1052, and 89.1170, concerning adaptations for special populations. The amendments to §89.1035 and §89.1050 are adopted with changes to the proposed text as published in the June 5, 2015 issue of the Texas Register (40 TexReg 3297). The amendments to §§89.1040, 89.1052, and 89.1170 are adopted with changes to the proposed text as published in the June 5, 2015 issue of the Texas Register (40 TexReg 3297) and will not be republished. The sections describe provisions related to special education services. The adopted amendments include technical amendments to rules relating to age ranges for student eligibility, eligibility criteria, and discretionary placements in Juvenile Justice Alternative Education Programs (JJAEPs). The adopted amendments also include an amendment to a rule regarding the admission, review, and dismissal (ARD) committee to clarify the requirements for translating individualized education programs (IEPs) and certain notices into a parent's native language and an amendment to a rule regarding the assignment of hearing officers in due process hearings filed under the Individuals with Disabilities Education Act (IDEA), 20 United States Code §1400, et seq.

REASONED JUSTIFICATION. The commissioner adopted amendments to multiple rules in 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services, to incorporate legislation passed during the 82nd Texas Legislature, Regular Session, 2011, and the 83rd Texas Legislature, Regular Session, 2013. These amended rules became effective on January 1, 2015. Several additional rules require amendment to align with the recent rule amendments and statutory changes. The adopted amendments to 19 TAC Chapter 89, Subchapter AA, Division 2, Clarification of Provisions in Federal Regulations and State Law, make minor technical changes, provide clarity, and comply with the requirements of the Texas Education Code (TEC) and the IDEA, as follows.

Section 89.1035, Age Ranges for Student Eligibility, is amended to make minor technical edits and to align with recent amendments to §89.1070 relating to graduation requirements. Additional technical changes were made in subsection (a) from what was published as proposed to align with other revisions to §89.1070, adopted in a separate rule action effective September 16, 2015. That adoption was published in the September 11, 2015 issue of the Texas Register.

Section 89.1040, Eligibility Criteria, is amended in subsection (c)(12)(A)(ii)(II) to make a minor technical edit.

Section 89.1050, The Admission, Review, and Dismissal Committee, is amended to clarify that written notice of an ARD committee meeting and of a school's refusal to convene an ARD committee meeting requested by a parent as well as prior written notices under 34 CFR, §300.503, must be provided in the parent's native language. The section is also amended to explain the requirements for providing the student's IEP in the parent's native language. In response to public comment, additional language was added as new subsection (i)(4) since published as proposed to clarify that a parent must receive a written copy of the student's IEP at no cost to the parent.

Section 89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP), is amended in subsections (b) and (c) to align with recent amendments to §89.1050(d) regarding the time frame within which written notice of an ARD committee meeting must be provided, to make minor technical edits throughout the rule, and to provide clarity. The section title is also amended to remove the acronym.

In addition, IDEA requires TEA, as the state educational agency, to assign impartial hearing officers to conduct due process hearings. Accordingly, in 2001, the commissioner exercised rulemaking authority to adopt 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services, Division 7, Dispute Resolution. TEA has recently contracted with the State Office of Administrative Hearings (SOAH) to provide administrative law judges to act as hearing officers in a portion of the hearing requests filed with TEA. TEA also contracts with private practice attorneys to act as hearing officers. As a result of the contract with SOAH, TEA has changed the manner in which it assigns due process hearing cases to hearing officers. The adopted amendment to 19 TAC Chapter 89, Subchapter AA, Division 7, reflects that change, as follows.

Section 89.1170, Impartial Hearing Officer, is amended in subsection (a) to describe that TEA assigns due process hearings to hearing officers who are employed by SOAH in accordance with the terms of an interagency agreement and to hearing officers who are private practice attorneys based on a rotation. Minor technical edits have also been made throughout the rule.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. 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.

§89.1040, Eligibility Criteria.

Comment: The Texas Council of Administrators of Special Education (TCASE) recommended that the term "sub-average" in the definition of "intellectual disability" in proposed §89.1040(c)(5)(A) be changed to "below-average" on the basis that the latter term is more respectful.

Agency Response: The agency disagrees. The terminology in the proposed rule is consistent with that in 34 Code of Federal Regulations (CFR), §300.8(c)(6).

Comment: TCASE commented that several districts have reported that the requirement in proposed §89.1040(c)(12) that an orientation and mobility specialist be included on the multidisciplinary team of a student suspected of or having a visual impairment is burdensome. TCASE further commented that it would be helpful for the agency to provide formal guidance on the ways an orientation and mobility specialist can participate in the reevaluation process without having to attend a formal meeting.

Agency Response: The agency disagrees. The proposed rule is consistent with the requirements in TEC, §30.002(c-1) and (c-2). Furthermore, the agency does not believe that separate guidance regarding the reevaluation process for students with visual impairments is necessary. The reevaluation procedures in 34 CFR, §§300.303 through 300.311, apply to all students with disabilities.

§89.1050, The Admission, Review, and Dismissal Committee.

Comment: TCASE asked that the agency consider establishing a clearinghouse of documents that are translated into languages other than English under proposed §89.1050(f), (h), and (i).

Agency Response: The agency disagrees with the recommendation because there is no statutory authority for requiring school districts to submit translations of meeting notices, prior written notices, and IEPs to the agency. Furthermore, the recommendation implicates student privacy issues under the Family Educational Rights and Privacy Act (FERPA) and IDEA.

Comment: Disability Rights Texas (DRTx) and The Arc of Texas (The Arc) recommended that language be added to proposed §89.1050(f) and (h) to clarify that the timelines for providing notices to parents are not altered when a notice must be provided in a parent's native language.

Agency Response: The agency disagrees. The timelines for providing meeting notices and prior written notices are clearly stated in the proposed rule, and there is no language in the proposed rule suggesting that the timelines are extended when a notice must be provided in a language other than English.

Comment: Texas Senator José Rodríguez expressed support for proposed §89.1050(i) and commented that the proposed rule will provide much needed clarification regarding the requirements for audio recorded translations of IEPs. Senator Rodríguez further commented that he authored legislation during the 84th Texas Legislative Session that was substantially similar to the proposed rule. Finally, Senator Rodríguez stated that the proposed rule usefully formalizes the agency's interpretation of TEC, §29.005(d), and will ensure that Texas better fulfills the requirement under IDEA to provide a parent with information in the parent's native language.

Agency Response: The agency appreciates and agrees with the comments.

Comment: TCASE commented that it agrees with maintaining a school district's ability to determine whether to provide a written or an audio recorded translation of the IEP but suggested that the agency add language to proposed §89.1050(i) stating that school districts are encouraged to consider a parent's preference for the type of translation to be provided.

Agency Response: The agency disagrees. TEC, §29.005(d) gives school districts the discretion to decide whether to provide a written or an audio recorded translation. However, there is nothing in the statute or the proposed rule that would prohibit a school district from adopting a local policy that requires school personnel to consider a non-English speaking parent's preference for the type of translation to be provided.

Comment: TCASE recommended that language be added to proposed §89.1050(i) stating that a parent may agree in writing to waive some or all of a translation of the IEP if the ARD committee meeting is translated and an audible recording of the translation is provided to the parent. TCASE further recommended that the rule state that if the parent is dissatisfied with the recording, the parent may request a written translation, and the school district shall provide a written translation, to the extent practicable.

Agency Response: The agency disagrees and believes that adding a waiver provision and the other language recommended would be inconsistent with TEC, §29.005(d). Under the statute, school districts have the option to provide either a written or an audio recorded translation of the student's IEP. Whether written or audio recorded, the translation must include all of the content in the English version of the student's IEP.

Comment: TCASE recommended that the language in proposed §89.1050(i)(1) be modified to state that a written copy of the student's IEP translated into the parent's native language means the "substantive content" of the IEP. TCASE further recommended that language be added stating that "substantive content" means that the translation enables the parent to understand the elements of the IEP as outlined in 34 CFR, §300.320(a) through (c). In addition, TCASE recommended that the second sentence in proposed §89.1050(i)(1) be changed to state that the IEP translated into the target language must be "translated in a manner that the parent is able to understand and knowingly participate in the decisions being made in the [ARD committee] meeting." TCASE stated that these changes will define the content of the IEP and provide greater clarity.

Agency Response: The agency disagrees. The language in TEC, §29.005(d), indicates an intent to require school districts to provide non-English speaking parents with translations of IEPs that are equivalent to the English versions of the IEPs. There is no language in the statute reflecting that the translation requirement can be met by providing a non-English speaking parent with less information than an English speaking parent would receive. Furthermore, it would not be appropriate to require that a translation of an IEP only include the elements in 34 CFR, §300.320(a) through (c), because there are a number of state-imposed requirements for an IEP that are not required under federal law.

Comment: TCASE recommended that the term "substantive" be added before the term "content" in proposed §89.1050(i)(2), which outlines the requirements for audio recorded translations.

Agency Response: The agency disagrees. As stated in the response to the commenter's recommendations with regard to proposed §89.1050(i)(1), the language in TEC, §29.005(d), indicates an intent to require school districts to provide non-English speaking parents with translations of IEPs that are equivalent to the English versions of the IEPs. There is no language in the statute reflecting that the translation requirement can be met by providing a non-English speaking parent with less information than an English speaking parent would receive.

Comment: An advocate commented that she supports providing Spanish-speaking parents with written Spanish translations of their children's IEPs. The commenter further stated that audio recordings of ARD committee meetings are not a replacement for written translations and that providing written translations promotes equity and parent involvement.

Agency Response: The agency partially agrees with the comment. Proposed §89.1050(i) is intended to clarify the requirements in TEC, §29.005(d), for providing a parent who is unable to speak English with a written or an audio recorded translation of the student's IEP. The agency agrees that providing non-English speaking parents with translations of IEPs enhances parent participation in the special education process. To the extent that the commenter is recommending that the proposed rule be modified to include a preference for written translations of IEPs, the agency declines the recommendation as it would be inconsistent with TEC, §29.005(d).

Comment: DRTx and The Arc commented that they appreciate the agency's attention to promoting the participation of parents whose primary language is other than English. The commenters recommended that proposed §89.1050(i) be modified to allow non-English speaking parents to have the right to select whether they receive a written or an audio recorded translation of the IEP. In the alternative, the commenters recommended that school districts be required to consider a parent's preference for the type of translation. Finally, the commenters recommended that language be added to the proposed rule stating that a parent who receives a translation of an IEP must also receive a copy of the English version of the IEP.

Agency Response: The agency agrees that the proposed rule will promote the participation of non-English speaking parents. The agency disagrees with the recommendation to add language to the proposed rule that would allow non-English speaking parents to choose the type of translation or, alternatively, that would require school districts to consider the parents' preferences for the type of translation. As stated previously, TEC, §29.005(d), gives school districts the discretion to decide whether to provide a written or an audio recorded translation. However, there is nothing in the statute or the proposed rule that would prohibit a school district from adopting a local policy that incorporates the commenters' recommendations.

The agency generally disagrees with the recommendation to add language to the proposed rule stating that a parent who receives a translation of an IEP must also receive a copy of the English version of the IEP. However, the agency has determined that the proposed rule requires clarification with regard to the requirement in 34 CFR, §300.322(f). This federal regulation requires that a school district give the parent a copy of the student's IEP at no cost to the parent. When the term "IEP" is used in the federal regulations, it refers to a written statement. See 34 CFR, §300.22. Thus, to meet the requirement in 34 CFR, §300.322(f), a school district must provide a non-English speaking parent with either a copy of the English version of the IEP or a written translation of the IEP as described in proposed §89.1050(i)(1). Providing a non-English speaking parent with only an audio recorded or a non-written translation of the IEP under proposed §89.1050(i)(2) or (3) would not satisfy the requirement in 34 CFR, §300.322(f). Accordingly, the agency has added a paragraph (4) to proposed §89.1050(i) to clarify that a school district meets the requirement in 34 CFR, §300.322(f), by providing a parent with a written copy of the student's IEP in English or with a written translation of the student's IEP in the parent's native language in accordance with proposed §89.1050(i)(1).

In addition, the agency notes that a parent who receives only a written translation of the student's IEP under proposed §89.1050(i)(1) would have a right to inspect and review a copy of the English version of the student's IEP under FERPA and 34 CFR, §300.613. The parent may also request a copy of the English version of the student's IEP if the failure to provide a copy would effectively prevent the parent from exercising the right to inspect and review the record.

Comment: The Arc recommended that parents be given a translation in an electronic format so that they can manipulate the electronic translation.

Agency Response: The agency disagrees. TEC, §29.005(d), does not require that school districts provide translations in electronic formats. However, there is nothing in the statute or the proposed rule that would prohibit a school district from adopting a local policy that incorporates the commenter's recommendation.

§89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs.

Comment: DRTx and The Arc recommended that language be added to the proposed rule stating that a notice of an ARD committee meeting must include the name of the JJAEP representative invited to the meeting per 34 CFR, §300.322(b)(1)(i).

Agency Response: The agency disagrees. The U.S. Department of Education's Office of Special Education Programs has advised that if possible, a school district should give the name and position of each individual who will attend an ARD committee meeting but that a school district can satisfy the requirement in 34 CFR, §300.322(b)(1)(i), by indicating the positions, and not the names, of those individuals. See Letter to Anonymous, 50 IDELR 259 (OSEP 2008); Letter to Livingston, 21 IDELR 1060 (OSEP 1994).

§89.1170. Impartial Hearing Officer.

Comment: DRTx and The Arc recommended that language be added to proposed §89.1170(a) to clarify how TEA alternates between the two pools of hearing officers (i.e., the private practice attorneys and attorneys employed by the State Office of Administrative Hearings (SOAH)).

Agency Response: While the agency appreciates the commenter's desire for more specificity in the proposed rule, the agency disagrees with the recommendation. When the agency entered into an interagency contract with SOAH two years ago that provided that four SOAH hearing officers would conduct a portion of the special education hearings, the agency continued its longtime practice of assigning cases to hearing officers based on an alphabetical rotation. Over time, however, it became apparent that this process did not work well for the SOAH hearing officers, who conduct a wide range of hearings for numerous state agencies. Therefore, the agencies modified the interagency contract to increase the number of SOAH hearing officers and to allow SOAH to designate the specific hearing officer who would preside over a case. Currently, the agency refers approximately one-third of the cases to SOAH and two-thirds to the hearing officers who are private practice attorneys. The rule is designed to clarify that there are different assignment processes for the two pools of hearing officers. With regard to the portion of cases assigned to the two pools of hearing offices, the rule requires flexibility as the agency is currently evaluating what adjustments should be made for the coming year.

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §29.001, which requires the TEA to develop a statewide plan for the delivery of services to children with disabilities and prescribes certain parameters of the plan; TEC, §29.005, which requires a school district to establish an ARD committee consistent with IDEA 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; 34 CFR, §300.100, which provides that a state is eligible for assistance under Part B of IDEA for a fiscal year if it submits a plan to the Secretary of Education that provides assurances that it has in effect policies and procedures to ensure that it meets the conditions in 34 CFR, §§300.101 through 300.176; 34 CFR, §300.121, which requires that a state have procedural safeguards in effect to ensure that each public agency in the state meets the due process hearing requirements in 34 CFR, §§300.500 through 300.536, and also requires that children with disabilities and their parents be afforded those procedural safeguards; 34 CFR, §300.322(f), which requires that a school district give the parent a copy of the student's IEP at no cost to the parent; and 34 CFR, §300.503, which describes the actions that require a public agency to provide a parent with prior written notice, the information that must be included in a notice, and the requirement that the notice be in language understandable to the general public and the parent's native language or other mode of communication, unless it is not feasible to do so.

CROSS REFERENCE TO STATUTE. The amendments implement the TEC, §29.001 and §29.005, and 34 CFR, §§300.100, 300.121, 300.322, and 300.503.