The Texas Education Agency (TEA) adopts amendments to §§89.1001, 89.1011, 89.1015, 89.1035, 89.1055, 89.1065, 89.1075, 89.1090, 89.1095, 89.1121, 89.1125, and 89.1131; the repeal of §§89.1020, 89.1025, 89.1030, 89.1040, 89.1045, 89.1050, 89.1060, 89.1070, 89.1085, 89.1105, 89.1151, 89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185, and 89.1190; and new §§89.1040, 89.1045, 89.1047, 89.1049, 89.1050, 89.1056, 89.1060, 89.1070, 89.1076, 89.1085, 89.1096, 89.1150, 89.1151, 89.1165, 89.1170, 89.1180, 89.1185, and 89.1191, concerning special education services. The sections clarify federal regulations and state statutes pertaining to delivering special education services to students with disabilities. The sections also establish definitions, requirements, and procedures related to: interagency agreements; special education funding; personnel issues; and resolution of disputes between parents and school districts. Amendments to §§89.1001, 89.1011, 89.1035, 89.1055, 89.1065, 89.1075, and 89.1131 and new §§89.1040, 89.1045, 89.1049, 89.1050, 89.1070, 89.1096, and 89.1185 are adopted with changes to the proposed text as published in the August 18, 2000, issue of the Texas Register (25 TexReg 7983). Amendments to §§89.1015, 89.1090, 89.1095, 89.1121, and 89.1125; the repeal of §§89.1020, 89.1025, 89.1030, 89.1040, 89.1045, 89.1050, 89.1060, 89.1070, 89.1085, 89.1105, 89.1151, 89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185, and 89.1190; and new §§89.1047, 89.1056, 89.1060, 89.1076, 89.1085, 89.1150, 89.1151, 89.1165, 89.1170, 89.1180, and 89.1191 are adopted without changes and will not be republished.

The Individuals with Disabilities Education Act (IDEA) Amendments of 1997, was signed into law in June 1997. The final federal regulations were published by the United States Department of Education, Office of Special Education Programs, in March 1999. The IDEA Amendments of 1997 contain numerous changes to the federal law pertaining to the education of students with disabilities. In addition, during the 76th Texas Legislative Session, 1999, several new sections of special education law were added and other sections were amended. As a result of the changes to the federal special education law and regulations and state law, 19 Texas Administrative Code (TAC) Chapter 89, Adaptations for Special Populations, Subchapter AA, Special Education Services, must be amended to reflect these changes to ensure school district compliance with new procedural and reporting requirements.

The most significant issue pertaining to these adopted amendments relates to the expiration of §89.1095 and adoption of new §89.1096, relating to dual enrollment. The amendment to §89.1095 includes the expiration date of June 30, 2001. New §89.1096 includes an implementation date of July 1, 2001, and will replace §89.1095 at that time. Section 89.1095 requires school districts to serve students with disabilities placed in private schools by their parents if the student was dually enrolled in the school district and private school. The amended federal law limits the service that schools and states are obligated to provide to students placed in private schools by their parents. Adopted new §89.1096 addresses these federal regulations and limits school district responsibility to provide services under "dual enrollment" to students ages 3-5. In addition to the changes in federal law, the Texas Education Code (TEC) was amended during the legislative session in 1999 to require the commissioner to adopt rules relating to surrogate and foster parents and the transfer of assistive technology devices. As a result of these amendments to state statute, new §89.1047 and §89.1056 are adopted to reflect legislative intent.

Chapter 89, Subchapter AA, is organized to track and clarify the special education child-centered process. In addition, the subchapter contains clarification specific to the distribution and expenditure of state funds, personnel issues, due process hearings, and new state requirements regarding surrogate and foster parents and the transfer of assistive technology. The commissioner's rules ensure compliance with state statutes and federal regulations for the delivery of special education to students with disabilities, while giving districts more local control and flexibility consistent with the spirit and intent of both the executive and legislative branches of Texas state government.

Carol Francois, associate commissioner for education of special populations, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

In response to comments, the following changes have been made to the following sections since published as proposed.

Language has been added and amended in §89.1001 based on public comment and to clarify school district responsibility regarding the provision of services to students with disabilities who reside in a residential facility.

Language has been added to §89.1011 based on public comment and to clarify the need for a referral when a student continues to experience difficulty after the provision of interventions. In addition, language was added to reference the 60-day time line for the completion of the evaluation report.

A specific rule reference was added to§89.1035 to reflect amendments which had been made to §89.1070, relating to graduation.

Several additions and amendments based on public comment have been made to §89.1040. Proposed language pertaining to the responsibility of evaluation personnel was removed; specification of individuals participating in multidisciplinary teams has been modified; sections, references, and terminology errors have been corrected; language was added regarding the evaluation of students with visual impairments; language was added to reference attention deficit disorder or attention deficit hyperactivity disorder (ADD/ADHH) in the other health impairment definition; and the proposed noncategorical eligibility criteria has been removed and replaced with current rule language.

Current section title and rule language have been reinstated in §89.1045, with an updated federal citation, in response to public comment relating to notice to parents for admission, review, and dismissal committee meetings.

Language has been added and amended in §89.1049 to reflect public comment regarding the transfer of parental rights when the student turns 18 years of age. The added language establishes that the parent and the student will share parental rights.

Language has been added and amended in §89.1050 to reflect public comment regarding the admission, review, and dismissal committee process; the participation of the general education teacher; and the transfer admission, review, and dismissal committee meeting time line.

Language was added to §89.1055 to reflect public comment regarding student participation in state- and district-wide assessments and goals for extended school years services.

Language was amended in §89.1065 to reflect public comment regarding certain criteria for establishing the need for extended school year services.

Language was added and amended in §89.1070 to reflect public comment regarding graduation requirements for students with disabilities.

Language was added and amended in §89.1075 to reflect public comment relating to support for teachers in the implementation of a student's individualized education program.

Language was added to §89.1096 in response to public comment and federal responsibility regarding services to students with disabilities who have been placed in private schools by their parents. An expiration date of June 30, 2004, has been added to this section.

Language was added to §89.1131 to reflect public comment and federal regulation pertaining to paraprofessionals. In addition, language was added to reflect reference to the correct certification and certifying entities.

Language was added to §89.1185 to reflect public comment and to clarify school district responsibility regarding the implementation of a hearing officer's order.

Comments were received regarding adoption of the amendments, repeals, and new sections.

The proposed rules were filed with the Texas Register in August 2000. Over 1,000 comments were received by the TEA from individuals, school district administrators, special education advocacy group, and others. The provision of services to students with disabilities placed by their parents in private schools remains a significant issue. In addition, personnel responsible for evaluation; the parent's right to request an admission, review, and dismissal (ARD) committee meeting; the transfer of parental rights when the student turns 18 years of age; criteria for extended school year services; and graduation requirements were hotly debated issues.

During the public comment period, the due process hearing procedures were also significantly debated. Many commenters have argued that the rules relating to due process hearings should include a presentment requirement that precludes an issue from being raised at a due process hearing unless it has first been raised at an ARD committee meeting. Because a presentment requirement was not included in the proposed rules, the interested parties were not on notice that the presentment issue could be considered in this rulemaking. In order to give all interested parties notice of and an opportunity to comment on a presentment requirement, a presentment requirement will be addressed in a separate rulemaking proceeding.

Four stakeholder meetings were held over 15 days. These meetings included the participation of parents, advocates, school districts, education service centers, support personnel organizations, teacher organizations, administrator organizations, and the school board association. In addition, the proposed rules were posted on the TEA website and comments were received by regular and electronic mail. Seven public hearings were also held in El Paso, Lubbock, Austin, Dallas, Houston, Corpus Christi, and Edinburg during which public comment was received. Changes based on comments from written comment and the public hearings have been incorporated into the commissioner's rules. Following is a summary of the more than 1,000 remarks received by TEA. Agency responses are provided after each comment.

Comment. Concerning §89.1001, an individual stated that they supported the proposed rule changes and thought the changes would simplify the process.

Agency Response. The agency agrees.

Comment. Concerning §89.1001, four individuals stated that they endorsed development of state rules consistent with, and not beyond, federal law.

Agency Response. The agency agrees.

Comment. Concerning §89.1001, two individuals requested that the Texas Education Agency develop a side-by-side rule document after adoption of commissioner's rules.

Agency Response. The agency agrees and intends to produce a side-by-side document.

Comment. Concerning §89.1001, four individuals stated that other regulatory agencies and state boards sometimes have policies that contradict TEA policies and that these contradictions should be identified and resolved at the state level.

Agency Response. The agency agrees and will continue to promote interagency agreements and collaboration.

Comment. Concerning §89.1001, an individual and two representatives from statewide advocacy organizations requested that the words "if the facility does not have an education program" be removed from subsection (c). They stated that the presence of a "program" at a facility does not diminish the responsibility of the local education agency and state education agency to assure free appropriate public education.

Agency Response. The agency agrees in part and additional language was added to clarify the responsibility of school districts regarding services to eligible students who reside in residential facilities.

Comment. Concerning §89.1011, six individuals, one local special education director, the Texas Special Education Continuing Advisory Committee (CAC) and five representatives from advocacy organizations requested that since §89.1030 (relating to Comprehensive Individual Assessment) has been removed from rule, language should be added here stating the 60-day timeline required by state law for completing an evaluation. They commented that failure to meet this timeline continues to be a major problem in Texas and that a clear restatement in rule is needed.

Agency Response. The agency agrees and language has been added to clarify the 60-day timeline.

Comment. Concerning §89.1011, a local special education director requested that the rule clarify "educational need that is only correctable through special education." They further stated that students who are doing well in other support programs should not be referred even with parents' request. The director commented that they are being successful and therefore it is not necessary to refer to special education.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment: Concerning §89.1011, the CAC suggested the following wording, "This referral for a full and individual initial evaluation shall be initiated. School personnel, the student's parents or legal guardian, or another person involved in the education or care of the student are eligible for full and individual initial evaluation referral at any time."

Agency Response. The agency agrees in part and wording has been revised to reflect the requirement for referral after previous interventions have been unsuccessful.

Comment. Concerning §89.1011, a local special education director asked the question, "What constitutes the initiation of referral?" In addition, the director offered the following response, "Federal guidelines say when parent signs consent!"

Agency Response. The agency disagrees with this comment and believes that state statute provides a higher standard related to the initiation of referral.

Comment. Concerning §89.1011, a representative of a state advocacy organization requested that the deadline for completion of referral and evaluation report be no more than four weeks.

Agency Response. The agency disagrees. TEC, §29.004, establishes a 60-calendar day timeline.

Comment. Concerning §89.1011, four individuals stated that this section could be interpreted to read that special education services should be offered prior to evaluation. They offered the following language for clarification: "such as tutorial, remedial, compensatory, and other non-special education services."

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1011, an individual stated they supported the change from assessment to evaluation.

Agency Response. The agency agrees.

Comment. Concerning §89.1011, a local special education director stated that the change from assessment to evaluation was unnecessary and would add confusion.

Agency Response. The agency disagrees. Use of the term evaluation will bring state language in line with federal regulations and it will contrast the individualized evaluation process from student assessment activities related to the state accountability system.

Comment. Concerning §89.1011, an individual stated that he thought there was a very fine line between the use of the terms "evaluation" and "assessment." In addition, the commenter offered the following question, "What is used to clarify the difference between "evaluation" and "assessment?"

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1011, an individual stated he has misgivings about the change from the term, "comprehensive" to the term "full." He also believes that the use of the term "full" will be misleading. The commenter asked the following questions, "What exactly does Full mean?" Why the term Initial?" "What happens when the student has the second or third evaluation?" "Is that still an initial evaluation?" The commenter offered the following: "I propose that if Comprehensive Individual Assessment needs to be changed, then change it to Comprehensive Individual Evaluation."

Agency Response. The agency does not feel that this is a necessary clarification. The proposed changes reflect federal language to eliminate conflicting terminology.

Comment. Concerning §89.1011, an individual stated that the word "full" is kind of a flat word. This commenter prefers the term "comprehensive." The commenter offered that currently, the state uses the term comprehensive individual assessment for initial and for re-evaluations. The individual commented that using the word comprehensive allows for the term to continue to be appropriate for initial and for re-evaluations. The proposed term "full and individual initial evaluation" has the word "initial," which to the commenter seems limiting to the first evaluation that would be presented for this child.

Agency Response. The agency does not feel that this is a necessary clarification. The proposed changes reflect federal language to eliminate conflicting terminology.

Comment. Concerning §89.1011, an individual stated that the proposed use of the term "full" should be replaced be the term "complete."

Agency Response. The agency disagrees. Use of the term "full" will bring state language in line with federal regulations.

Comment. Concerning §89.1015, an individual and three representatives from advocacy organizations stated they supported the rule language as proposed.

Agency Response. The agency agrees.

Comment. Concerning §89.1020, three individuals raised concerns that the repeal of the section was unnecessary and would give the impression that written notice was not required.

Agency Response. The agency disagrees. The requirements for written parental notice before assessment are contained in federal regulations.

Comment. Concerning §89.1025, an individual raised concerns that the repeal of the section was unnecessary and would give the impression that written consent was not required.

Agency Response. The agency disagrees. The requirements for written consent for assessment are contained in federal regulations.

Comment. Concerning §89.1035, seven individuals requested clarification regarding when services should start regarding young children and the summer session.

Agency Response. The agency feels that the requirements related to initial services to young children are addressed in the adopted rule.

Comment. Concerning §89.1035, two individuals expressed the concern that this rule, relating to three-is-three, could be burdensome to small/rural school districts relating to the provision of services during the summer months and finding qualified personnel to provide such services.

Agency Response. The agency understands the concern; however, this is a federal requirement.