The Texas Education Agency (TEA) adopts amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1225, 89.1227, 89.1228, 89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, and 89.1265; new 89.1226 and 89.1229; and the repeal of 89.1267 and 89.1269, concerning the state plan for educating English learners. The amendments to §§89.1201, 89.1203, 89.1207, 89.1210, 89.1220, 89.1228, 89.1235, 89.1245, and 89.1265 and new 89.1229 are adopted with changes to the proposed text as published in the April 20, 2018 issue of the Texas Register (43 TexReg 2338). The amendments to §§89.1205, 89.1215, 89.1225, 89.1227, 89.1230, 89.1233, 89.1240, and 89.1250; new 89.1226; and the repeal of 89.1267 and 89.1269 are adopted without changes to the proposed text as published in the April 20, 2018 issue of the Texas Register (43 TexReg 2338) and will not be republished. The adopted revisions amend and clarify provisions relating to identifying, placing, serving, and reclassifying English learners to align the rules with current agency practice and make modifications to align with the adopted Every Student Succeeds Act (ESSA) State Plan, Title III, Part A.

REASONED JUSTIFICATION. In accordance with the Texas Education Code (TEC), Chapter 29, Subchapter B, Bilingual Education and Special Language Programs, the commissioner exercised rulemaking authority to establish rules to guide the implementation of bilingual education and special language programs. The commissioner's rules in 19 TAC Chapter 89, Subchapter BB, establish the policy that every student in the state who has a primary language other than English and who is identified as an English learner shall be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program. These rules outline the requirements of the bilingual education and ESL programs, including program content and design, home language survey, the language proficiency assessment committee (LPAC), testing and classification, facilities, parental authority and responsibility, staffing and staff development, required summer school programs, and evaluation.

During the recent statutorily required review of rules in 19 TAC Chapter 89, staff identified the need to update rules in Subchapter BB to align with current agency practice. In addition, the issuance of the adopted ESSA State Plan, Title III, Part A, necessitated conforming changes to §89.1225 and the addition of new §89.1226.

The adopted revisions to 19 TAC Chapter 89, Subchapter BB, update the term "English language learner" to "English learner" and the term "home language" to "primary language" throughout the rules. In addition, the following changes were made.

Section 89.1201, Policy, was amended to update terminology and align language with the required curriculum standards for bilingual education and ESL programs. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified.

Section 89.1203, Definitions, was amended to define terms used in Chapter 89, Subchapter BB, and align them with statute. Definitions were added for bilingual education allotment, certified English as a second language teacher, dual-language instruction, English as a second language program, English language proficiency standards, exit, and reclassification. In response to public comment, paragraph (7) was modified at adoption to clarify use of the term "limited English proficient (LEP) student."

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, was amended to update terminology and clarify that school districts seeking to implement bilingual education program models that are not required under statute have the authority to do so.

Section 89.1207, Exceptions and Waivers, was amended to update terminology and codify filing and reporting procedures to align with current agency practices. The elements of a comprehensive professional development plan were added to provide guidance that would ensure consistent and comprehensive training statewide. In addition, a requirement was added that schools maintain records to support the submission of an exception or waiver. This ensures schools have the appropriate documentation to present information to the school board as required by §89.1265. The section title was also amended to add clarity. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified.

Section 89.1210, Program Content and Design, was amended to update terminology and add clarity to the descriptions of the various bilingual education and ESL program models. In response to public comment, the section was modified at adoption as follows. The word "appropriately" was added throughout to clarify that teachers must be appropriately certified. Language was also added in subsection (c)(3) and (4) to specify that instruction provided in a language other than English in the dual language immersion/one-way and dual language immersion/two-way program models is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in the program models may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. In addition, subsection (d)(1) was amended to clarify specific teacher certification requirements for educators serving in the ESL/content-based program model.

Section 89.1215, Home Language Survey, was amended to update terminology and provide guidance on responsibilities regarding the survey. A requirement was added to provide the survey in Vietnamese to reflect that it is the state's second most represented primary language. In addition, language was amended to clarify that the home language survey should be given only to students enrolling in a Texas public school for the first time and to require the receiving district to make multiple attempts to obtain the survey from the sending district for a student who has been enrolled previously in a Texas public school. These changes ensure continuity of program services for students and avoid services potentially being interrupted or altered.

Section 89.1220, Language Proficiency Assessment Committee, was amended to update terminology and clarify the member composition of the LPAC as well as student monitoring requirements to align with requirements in statute. Additional changes clarify parent notification and parent approval procedures and adjust timeline language to align with ESSA and state statutory requirements. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified. Also in response to public comment, subsection (h) was amended to clarify that the 10-day notification requirement is 10 calendar days.

Section 89.1225, Testing and Classification of Students, was amended to update terminology and align with new ESSA requirements for the 2018-2019 school year, including a student assessment and identification timeline of four weeks, use of a standardized rubric for providing subjective teacher evaluation for student exit purposes, and additional clarification of testing requirements for program entry and exit. Additionally, clarification was provided with regard to the role of the LPAC and the admission, review, and dismissal (ARD) committee and procedures to be followed in the decision-making process for English learners with identified special needs. Language was amended to align with new annual language proficiency testing procedures made allowable through ESSA for English learners with significant cognitive disabilities. This section will be superseded by §89.1226 beginning with the 2019-2020 school year.

Adopted new §89.1226, Testing and Classification of Students, Beginning with School Year 2019-2020, was added to align with new ESSA requirements to be implemented beginning with the 2019-2020 school year. New standardized procedures were introduced, including the state's use of a single English language proficiency test for student identification and entrance and a single English language proficiency test for student exit. Additionally, updated language from §89.1225 was included in this section where appropriate.

Section 89.1227, Minimum Requirements for Dual Language Immersion Program Model, was amended to include language regarding provision of equitable resources to ensure that program model participants are consistently given equitable access to the state curriculum.

Section 89.1228, Dual Language Immersion Program Model Implementation, was amended to update terminology and clarify parent permission requirements. The section title was amended to clarify the specific program model addressed in this section. In response to public comment, subsection (a) was modified at adoption to add reference to §89.1233(a).

Adopted new §89.1229, General Standards for Recognition of Dual Language Immersion Program Models, was added. The new section contains language from repealed §89.1265, General Standards for Recognition of Dual Language Immersion Program Models, and was moved to more logically organize the rules. Differences from the repealed rule include clearly delineated criteria for recognizing dual language immersion program implementation and new language about recognition of student performance as required in TEC, §28.0051. In response to public comment, subsection (b) was modified at adoption to specify that a student participating in any state-approved bilingual or ESL program model may earn a performance acknowledgement in accordance with 19 TAC §74.14.

Section 89.1230, Eligible Students with Disabilities, was amended to update terminology and clarify the role and responsibilities of the LPAC in decision-making for English learners with disabilities.

Section 89.1233, Participation of English Proficient Students, was amended to update terminology and clarify participation enrollment limitations in accordance with statute.

Section 89.1235, Facilities, was amended to update terminology and provide flexibility for how school districts continue services for students who have attended a newcomer center for the allowed two years. Information regarding percentage of enrolled English learners per facility was amended and moved to §89.1233 to align with statute. In response to public comment, the section was modified at adoption to clarify that recent immigrant English learners shall not remain enrolled in a newcomer center for longer than two years.

Section 89.1240, Parental Authority and Responsibility, was amended to update terminology and clarify requirements to be included in the bilingual education allotment.

Section 89.1245, Staffing and Staff Development, was amended to update terminology. To streamline and eliminate redundancy, language describing requirements for school districts filing for a bilingual exception or ESL waiver was deleted and language describing materials provision was combined. In response to public comment, subsection (a) was modified at adoption to address teaching permits for school districts that are unable to secure a sufficient number of appropriately certified bilingual education and/or ESL teachers to provide the required programs.

Section 89.1250, Required Summer School Programs, was amended to update terminology and clarify allowable funding sources. The state's bilingual education allotment provides funds for this state-mandated program.

Section 89.1265, Evaluation, was amended to update terminology and clarify annual evaluation requirements aligned with statute and incorporate requirements currently described in §89.1267. Additional evaluation reporting requirements were provided for school districts filing for a bilingual exception and/or an ESL waiver to align with adopted amendments to §89.1207. In response to public comment, subsection (b)(4) was modified at adoption to clarify the type of professional development that must be provided to teachers and aides and included in the annual school district reports of educational performance.

Section 89.1267, Standards for Evaluation of Dual Language Immersion Program Models, was repealed to eliminate redundancy, as these requirements are already fulfilled in §89.1265.

Section 89.1269, General Standards for Recognition of Dual Language Immersion Program Models, was repealed and adopted as new §89.1229 to more logically organize the rules.

In addition, the subchapter title was changed to "Commissioner's Rules Concerning State Plan for Educating English Learners."

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began April 20, 2018, and ended May 21, 2018, and included a public hearing on May 2, 2018. Following is a summary of the public comments received and corresponding agency responses.

Comment. Three administrators stated that it is unclear in proposed §89.1210(c)(3) and (4) that a teacher certified in ESL serving in a dual language program model can teach subjects that are in English.

Agency Response. The agency agrees that additional clarification is necessary. In response to this and other comments, §89.1210(c)(3) and (4) was modified at adoption to read, "Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061."

Comment. One administrator stated that it is unclear in proposed §89.1210(c)(3) and (4) whether the teacher of record is the bilingual-certified teacher or the ESL-certified teacher in instances where the two are teaching as a pair in a dual language program model.

Agency Response. The agency provides the following clarification. Assignment of a teacher of record in a dual language program model that uses paired teachers to deliver the components of the program in English and another language is a local district decision.

Comment. One administrator inquired whether the language in §89.1210(c)(3) and (4) that lists the anticipated number of years by which program participants will likely meet reclassification criteria is meant to be interpreted that students who meet reclassification criteria prior to the anticipated number of years may not be reclassified.

Agency Response. The agency provides the following clarification. English learners will be reclassified as English proficient following the standardized procedures in accordance with §89.1225(i), (l), and (m) and §89.1226(i), (l), and (m), regardless of the English learner program through which they are served. The anticipated number of years by which program participants will likely meet reclassification criteria is provided in the program model descriptions as a general guide but shall not supersede standardized statewide exit procedures required under TEC, §29.056(g).

Comment. One administrator asked whether the requirement in §89.1215(b) that the home language survey be administered in English, Spanish, and Vietnamese means that all three languages need to be on one form or whether a district can pair English with each of the two languages on separate forms. The administrator also inquired whether the home language survey in Vietnamese may be provided to families on paper when a district is generally using an electronic enrollment system.

Agency Response. The agency provides the following clarification. The specific manner by which the home language survey is administered (electronic or paper-based, language combinations) is a local district decision. The agency provides suggestions on best practices in administering the home language survey in guidance provided through annual LPAC Framework training and posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator asked whether the language in §89.1220(b) and (c) identifying the three required members of the LPAC means that a bilingual-certified teacher meets the requirement for instances in which the LPAC is meeting to make decisions around an English learner served through a bilingual education program and that an ESL-certified teacher meets the requirements for instances in which the LPAC is meeting to make decisions around an English learner served through an ESL program.

Agency Response. The agency provides the following clarification. The administrator's interpretation of the intended meaning of this rule is accurate.

Comment. Two administrators requested that special entry criteria be created for English learners with disabilities and recommended changes be made to §89.1225(h) to allow LPAC in conjunction with ARD committees the discretion to identify a student as "Not English Learner" or "Undetermined" if the student's language proficiency is not the critical factor for that student and/or a bilingual or ESL program placement would not be beneficial to that student. One of the commenters expressed concern that under current proposed rule, students with severe disabilities are identified as English learners but have no subsequent opportunity to exit English learner status.

Agency Response. The agency disagrees and has maintained language as proposed. Federal requirements require all students to be treated in the same manner in regard to English learner status. However, if federal law were amended to permit such a change, the agency would consider the commenters' suggestion in future rulemaking.

Comment. One administrator asked whether a student indicating American sign language as a response on the home language survey needs to be identified as an English learner.

Agency Response. The agency provides the following clarification. American Sign Language is considered a language other than English, and the standardized process for English learner identification applies in accordance with §89.1215(c).

Comment. One administrator, regarding the commissioner of education's ability to review the state's list of approved tests annually under §89.1225(o), expressed concern that changing the test every year or even every three years would be too costly to districts.

Agency Response. The agency disagrees and has maintained language as proposed. State law authorizes the commissioner the opportunity for annual approval.

Comment. One administrator sought clarification regarding the assessment requirements for reclassification outlined in §89.1226(i)(1).