The Texas Education Agency (TEA) adopts 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 amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1220, 89.1226, 89.1228, 89.1233, 89.1245, 89.1250, and 89.1265, and the repeal of §89.1225 are adopted without changes to the proposed text as published in the December 20, 2019 issue of the Texas Register (44 TexReg 7807) and will not be republished. The amendments to §89.1215 and §89.1240 are adopted with changes to the proposed text as published in the December 20, 2019 issue of the Texas Register (44 TexReg 7807) and will be republished. The adopted revisions update the rules to use more current terminology, provide clarifications, make technical edits, and remove outdated provisions.

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.

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Subchapter BB, update rules to use more current terminology, provide clarification, make technical edits, and remove outdated provisions.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

Section 89.1201, Policy, was amended to update terminology.

Section 89.1203, Definitions, was 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 adopted amendment also added definitions for prekindergarten, alternative language program, and parent.

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, was 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, was 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 adopted new definition provides clearer guidance when districts submit an exception and/or a waiver and aligns to the characteristics of those classrooms.

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

Section 89.1215, Home Language Survey, was 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 was also removed and the reference to §89.1226 was updated.

In response to public comment, language was modified in subsection (b) at adoption to provide clarity on providing the home language survey available in English, Spanish, and Vietnamese versus administering the home language survey in all three languages.

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

Section 89.1225, Testing and Classification of Students, was repealed since those provisions applied to school years prior to 2019-2020. The adopted repeal removes outdated provisions, which were replaced with §89.1226.

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

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

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

Section 89.1240, Parental Authority and Responsibility, was amended to remove reference to §89.1225 and update the reference to §89.1226. The adopted amendment also updates 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 were also made, including updating the term "exit" to "reclassification" to align with ESSA requirements.

In response to public comment, language was modified in subsection (a) at adoption to clarify that the term "they" refers to the parent.

Section 89.1245, Staffing and Staff Development, was 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 adopted amendment aligns 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, was amended to remove reference to §89.1225 and update the reference to §89.1226. Additional technical edits were also made.

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

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began December 20, 2019, and ended January 20, 2020. Following is a summary of public comments received and corresponding agency responses.

Comment: The Texas Legislative Education Equity Coalition recommended changes be made to provide clarification on "appropriate" certified teachers as stated in §89.1201(a)(3).

Agency Response. The agency disagrees. Appropriately certified teachers are addressed in TEC, §29.061, and referenced in §89.1210.

Comment: An individual and two administrators expressed concern that the term "guardian" was removed from rule text.

Agency Response. The agency disagrees. The term "guardian" has been included in the definition for "parent" in §89.1203(13); therefore, only the term "parent" is mentioned throughout the subchapter.

Comment: The Texas School Alliance (TSA) commented that additional language should be referenced in the definition of the term "exit" to include that parental approval is required for this action to occur.

Agency Response. The agency disagrees. The process for a student to exit from program services, which requires parental approval, is specified in §89.1220(m) and §89.1240(b).

Comment: The Texas Legislative Education Equity Coalition expressed concerned that no definition exists for English proficient students and recommended clarifying language on students who are English proficient and reclassified English learners.

Agency Response: The agency disagrees. This issue is addressed in existing rule in the definition of "English learner" and the updated definition of "reclassification" in §89.1203(7) and (9), respectively.

Comment: One administrator expressed concern about the replacement of the term "special language" with the term "English as second language," which can result in obscuring other bilingual programs.

Agency Response. The agency disagrees. The term was changed to update terminology when specifically referencing ESL programs in §§89.1203, 89.1220, and 89.1245. Bilingual programs continue to be mentioned in various sections throughout the subchapter.

Comment: The Texas Legislative Education Equity Coalition expressed concern about the term "alternative language program," questioned why it was changed from alternative "instructional" to alternative "language" program, and recommended the inclusion of both terms.

Agency Response. The agency disagrees. This change was made to provide consistency to language relating to the bilingual education exceptions and ESL waivers within §89.1207 and to align with updated terminology in the student data system.

Comment: The Texas State Teachers Association (TSTA) recommended changes be made to the comprehensive professional development plan in §89.1207(a)(1)(D) to include professional learning opportunities in the areas of content-focused instruction and cultural competencies.

Agency Response. The agency disagrees. This issue is addressed in existing rule in §89.1207(a)(1)(D)(i).

Comment: TSTA recommended adding language on how bilingual education exceptions and/or ESL waivers are approved.

Agency Response. The agency disagrees. The requested language is in existing rule in §89.1207(a)(3) and §89.1207(b)(3), respectively.

Comment: An administrator recommended changes be made to explicitly state that students meeting reclassification requirements may continue receiving program services with parental approval in §89.1210.

Agency Response. The agency disagrees. The recommended statement regarding parent approval is in existing rule in §89.1240(b).

Comment: Two administrators and TSA expressed concerns regarding the attempts to retrieve student records from one district to another in §89.1215(d).

Agency Response: The agency disagrees. School districts receiving a transfer student coming from another Texas school shall attempt to locate the student's original records, including the home language survey. If the survey cannot be retrieved, any other documentation to prove the student was identified as an English learner will suffice in order to avoid a new identification process and duplicate records.

Comment: An individual and one administrator asked for clarification regarding why changes were made to the questions in the home language survey.

Agency Response: The agency provides the following clarification. The changes were made to §89.1215 to align with language in TEC and to be more inclusive to parents and students who are non-verbal.

Comment: TSA asked whether the requirement stated in §89.1215(b) that the home language survey be administered in English, Spanish, and Vietnamese should instead state that the survey needs to be provided to parents in all three languages.

Agency Response: The agency agrees. The language in §89.1215 has been modified at adoption to reflect that home language survey is to be provided, rather than administered, in all three languages.

Comment: The Texas Legislative Education Equity Coalition expressed concern about the appropriate assessment option process being different for English learners and English proficient students participating in a two-way dual language program.

Agency Response: The agency disagrees. The language proficiency assessment committee (LPAC) is mandated by to review all pertinent information on all students identified as English learners, including the requirement in §89.1220(i) to determine appropriate assessment options. The LPAC is not required to review assessment options for English proficient students.

Comment: An administrator recommended changing "they" to "the parent" in §89.1240(a) since the term "legal guardian" is no longer mentioned.

Agency Response: The agency agrees and has modified §89.1240(a) at adoption to reflect the change.

Comment: The Texas Legislative Education Equity Coalition commented on retaining the language "shall" instead of "may" when requesting teacher permits in §89.1245(a).

Agency Response: The agency disagrees. School districts should have the option to either request from the agency a bilingual education exception and/or ESL waiver or pay for a teacher permit. Not all teachers meet the criteria to receive a permit.

Comment: An individual and one administrator expressed concerns about the term "multiple needs/or exceptionalities."

Agency Response. The agency disagrees. The term "identified as gifted and talented and English learners with disabilities" was updated to "identified with multiple needs and/or exceptionalities" in §89.1245(f)(3) to align with current terminology and to be more inclusive of other student populations.

Comment: An administrator asked if any consideration would be given to eliminating the 120 hours of instruction as part of the required summer school program in §89.1250.

Agency Response: This comment is outside the scope of the proposed rulemaking. Furthermore, this would require legislative action in order to make any necessary changes to the required summer school program.

Comment: An administrator inquired when the state will move away from one-way or two-way dual language programs and just call it "dual language programs" regardless of enrolled English learners and English proficient students.

Agency Response. This comment is outside the scope of the proposed rulemaking. Legislative action is necessary for such changes to occur.

Comment: An administrator inquired if the state will consider a software platform to monitor English learners.

Agency Response. This comment is outside the scope of the proposed rulemaking.

STATUTORY AUTHORITY. The repeal is adopted 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.