The Texas Education Agency (TEA) proposes amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1226, 89.1228, 89.1233, 89.1240, 89.1245, 89.1250, and 89.1265, and the repeal of §89.1225, concerning the state plan for educating English language learners. The proposed revisions would update the rules to use more current terminology, provide clarifications, make technical edits, and remove outdated provisions.

BACKGROUND INFORMATION AND JUSTIFICATION: In accordance with the 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.

The proposed revisions to 19 TAC Chapter 89, Subchapter BB, would update rules to use more current terminology, provide clarification, make technical edits, and remove outdated provisions. Specifically, the following changes would be made.

Section 89.1201, Policy, would be amended to update terminology.

Section 89.1203, Definitions, would be amended to update definitions for terms used in Chapter 89, Subchapter BB, including replacement of the term "special language program" with "ESL program" to align with current terminology. The proposed amendment would also add definitions for prekindergarten, alternative language program, and parent.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, would be amended to provide clarity regarding the language classification of the student and to align with current terminology.

Section 89.1207, Bilingual Education Exceptions and English as a Second Language Waivers, would be amended to update terminology and to add the alternative language program in the description of requirements to be included when submitting a request for a bilingual education exception or an ESL waiver. The proposed new definition would provide clearer guidance when districts submit an exception and/or a waiver and align to the characteristics of those classrooms.

Section 89.1210, Program Content and Design, would be amended to remove reference to §89.1225, Testing and Classification of Students, and update the reference to §89.1226. Additional technical edits would also be made, including updating the term "exit" to "reclassification" to align with the Every Student Succeeds Act (ESSA) requirements.

Section 89.1215, Home Language Survey, would be amended to update terminology on the survey to align with TEC and to provide more specific guidance to districts on the responsibility to ensure parents understand the survey. Reference to §89.1225 would also be removed and the reference to §89.1226 would be updated.

Section 89.1220, Language Proficiency Assessment Committee, would be amended to remove reference to §89.1225 and update the reference to §89.1226. Additional technical edits would also be made, including updating the term "exit" to "reclassification" to align with ESSA requirements.

Section 89.1225, Testing and Classification of Students, would be repealed since those provisions applied to school years prior to 2019-2020. The proposed repeal would remove outdated provisions, which are replaced with §89.1226.

Section 89.1226, Testing and Classification of Students, Beginning with School Year 2019-2020, would be amended to reflect the use of a single state-approved assessment for identification. Additional technical edits would also be made, including updating the term "exit" to "reclassification" or "reclassified" to align with ESSA requirements. The section title would be updated to remove the phrase "Beginning with School Year 2019-2020." The proposed amendment would implement the replacement of outdated provisions regarding testing and classification of students.

Section 89.1228, Two-Way Dual Language Immersion Program Model Implementation, would be amended to update terminology and clarify appropriate assessment options for English proficient students. The proposed amendment would provide clearer guidance on English proficient students in a dual language two-way program.

Section 89.1233, Participation of English Proficient Students, would be amended to update terminology from "students who are not English learners" to "English proficient students."

Section 89.1240, Parental Authority and Responsibility, would be amended to remove reference to §89.1225 and update the reference to §89.1226. The proposed amendment would also update the rule to align with HB 3, 86th Texas Legislature, 2019, which will now allow English proficient students and reclassified English learners in dual language programs to generate the bilingual education allotment. Additional technical edits would also be made, including updating the term "exit" to "reclassification" to align with ESSA requirements.

Section 89.1245, Staffing and Staff Development, would be amended to update terminology from English learners identified as "gifted and talented and English learners with disabilities" to English learners "with multiple needs and/or exceptionalities." The proposed amendment would align the rule with current terminology for students who are dually identified as an English learner and in special education.

Section 89.1250, Required Summer School Programs, would be amended to remove reference to §89.1225 and update the reference to §89.1226. Additional technical edits would also be made.

Section 89.1265, Evaluation, would be amended to update terminology from "exit" to "reclassified" to align with ESSA requirements.

FISCAL IMPACT: Matt Montano, deputy commissioner for special populations, has determined that for the first five-year period the proposal is in effect there are no additional costs to state or local government, including school districts and open-enrollment charter schools, required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

COST INCREASE TO REGULATED PERSONS: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would repeal an existing regulation. The proposal would repeal §89.1225, relating to the testing and classification of students for school years prior to 2019-2020. Section 89.1225 is no longer needed with implementation of §89.1226.

The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand or limit an existing regulation; would not increase or decrease the number of individuals subject to the rule's applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Mr. Montano has determined that for each year of the first five years the proposal is in effect, the public benefit anticipated as a result of enforcing the proposal would be further clarification of the rules for serving English learners. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: The proposal would have no data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: The TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: The public comment period on the proposal begins December 20, 2019, and ends January 20, 2020. A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register on December 20, 2019. A form for submitting public comments is available on the TEA website at https://tea.texas.gov/About_TEA/Laws_and_Rules/Commissioner_Rules_(TAC)/Proposed_Commissioner_of_Education_Rules/. Comments on the proposal may also be submitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.

STATUTORY AUTHORITY. The repeal is proposed under Texas Education Code (TEC), §29.051, which establishes the policy of the state to ensure equal educational opportunity to students with limited English proficiency through the provision of bilingual education and special language programs in the public schools and supplemental financial assistance to help school districts meet the extra costs of the programs; TEC, §29.052, which describes the definitions for both a student and a parent when used throughout TEC, Chapter 29, Subchapter B; TEC, §29.053, which outlines requirements for reporting the number of students with limited English proficiency in school districts and explains the criteria for determining whether a district is required to provide bilingual education or special language programs at the elementary and secondary school levels; TEC, §29.054, which describes the application process and documentation requirements for school districts filing a bilingual education exception; TEC, §29.055, which establishes basic requirements in the content and methods of instruction for the state's bilingual education and special language programs; TEC, §29.056, which authorizes the state to establish standardized criteria for the identification, assessment, and classification of students of limited English proficiency and describes required procedures for the identification, placement, and exiting of students with limited English proficiency; TEC, §29.0561, which provides information regarding requirements for the reevaluation and monitoring of students with limited English proficiency for two years after program exit; TEC, §29.057, which requires that bilingual education and special language programs be located in the regular public schools rather than separate facilities, that students with limited English proficiency are placed in classes with other students of similar age and level of educational attainment, and that a maximum student-teacher ratio be set by the state that reflects student needs; TEC, §29.058, which authorizes districts to enroll students who do not have limited English proficiency in bilingual education programs, with a maximum enrollment of such students set at 40% of the total number of students enrolled in the program; TEC, §29.059, which allows school districts flexibility to join other districts to provide services for students with limited English proficiency; TEC, §29.060, which describes requirements for offering summer school programs for students with limited English proficiency eligible to enter kindergarten or Grade 1 in the subsequent school year; TEC, §29.061, which describes teacher certification requirements for educators serving students with limited English proficiency in bilingual education and special language programs; TEC, §29.062, which authorizes the state to evaluate the effectiveness of programs under TEC, Chapter 29, Subchapter B; TEC, §29.063, which explains the roles and responsibilities of the language proficiency assessment committee and describes the composition of its membership; TEC, §29.064, which allows for a parent appeals process; and TEC, §29.066, which provides information regarding a school district's coding of students participating in bilingual education and special language programs through the Texas Student Data System Public Education Information Management System (TSDS PEIMS).

CROSS REFERENCE TO STATUTE. The repeal implements Texas Education Code, §§29.051-29.056, 29.0561, 29.057-29.064, and 29.066.