The Texas Education Agency (TEA) proposes amendments to §§89.1001, 89.1011, 89.1035, 89.1040, 89.1047, 89.1050, 89.1055, 89.1070, 89.1075, 89.1094, 89.1165, 89.1193, 89.1195, and 89.1197 and new 89.1005 and 89.1092, concerning special education services. The proposed revisions would reflect changes resulting from state legislation and federal guidance; provide clarification related to the full individual and initial evaluation, contracting for services from non-public day schools, and placement of students with disabilities in off-campus programs; update references to statute and state agency names; and remove expired provisions.

BACKGROUND INFORMATION AND JUSTIFICATION: The rules in Chapter 89, Subchapter AA, address provisions for special education services, including general provisions, clarification of federal regulations and state law, and dispute resolution. Legislation from the 86th Texas Legislature, 2019, as well as federal guidance require that some of the rules in the subchapter be revised. Other rules require amendment to provide clarification, update cross references, and remove expired provisions. Specifically, the proposed revisions would update rules as follows.

Division 1, General Provisions

The proposed amendment to §89.1001, Scope and Applicability, would update a reference from the Texas Youth Commission to the Texas Juvenile Justice Department.

Proposed new §89.1005, Instructional Arrangements and Settings, would be added as a result of House Bill (HB) 3, 86th Texas Legislature, 2019. HB 3 renumbered Texas Education Code (TEC), §42.151, to §48.102 and amended it to transfer rulemaking authority related to instructional arrangements for students with disabilities from the State Board of Education (SBOE) to the commissioner of education. As a result, the language from 19 TAC §89.63 adopted under the SBOE's authority would be proposed as new §89.1005. The proposed new rule is substantially similar to §89.63 and identifies provisions for instructional arrangements and settings, including mainstream, homebound, hospital class, speech therapy, resource room/services, self-contained (mild, moderate, or severe) regular campus, off-home campus, nonpublic day school, vocational adjustment class/program, residential care and treatment facility (not school district resident), and state-supported living center.

Division 2, Clarification of Provisions in Federal Regulations and State Law

The proposed amendment to §89.1011, Full Individual and Initial Evaluation, would clarify when a referral for a special education evaluation may or must be made.

The proposed amendment to §89.1035, Age Ranges for Student Eligibility, would update cross references to 19 TAC §89.1070.

The proposed amendment to §89.1040, Eligibility Criteria, would implement changes to TEC, §30.002, by Senate Bill (SB) 522, 86th Texas Legislature, 2019, regarding evaluation of a student's visual impairment. Additionally, the amendment would align the rule with federal guidance. The current definition in §89.1040(c)(12) may have the effect of narrowing the Individuals with Disabilities Education Act (IDEA) definition in 34 Code of Federal Regulations, §300.8(c)(13), of "visual impairment including blindness." As noted by the May 22, 2017 Letter to State Directors of Special Education, Preschool/619 State Coordinators from the U.S. Department of Education, Office of Special Education Programs, because the IDEA definition of "visual impairment including blindness" does not contain a modifier to allow states to define a precise level of impairment, "any impairment in vision, regardless of significance or severity, must be included in a State's definition, provided that such impairment, even with correction, adversely affects a child's educational performance." (emphasis in original)

The proposed amendment to §89.1047, Procedures for Special Education Decision-Making for Students in Foster Care, would implement changes to TEC, §29.0151, by HB 1709, 86th Texas Legislature, 2019, by clarifying that surrogate parents may not be employees of TEA.

The proposed amendment to §89.1050, The Admission, Review, and Dismissal Committee, would replace the reference to the Department of Assistive and Rehabilitative Services with the Texas Health and Human Services Commission. Additionally, the reference to TEC, §42.151, would be changed to TEC, §48.102, due to a renumbering of statute by HB 3, 86th Texas Legislature, 2019.

The proposed amendment to §89.1055, Content of the Individualized Education Program, would remove subsections (h) and (i), which expired at the beginning of the 2018-2019 school year. References to the 2018-2019 school year would also be removed from subsection (j), relettered as subsection (h), and subsection (k).

The proposed amendment to §89.1070, Graduation Requirements, would implement changes to TEC, §28.025, by HB 165, 86th Texas Legislature, 2019, which altered the means by which an endorsement may be earned. The proposed amendment would specify the modifications that may be made for a student eligible for special education services to earn an endorsement. References to statute and other administrative rule would also be updated.

The proposed amendment to §89.1075, General Program Requirements and Local District Procedures, would remove subsection (f), which references TEC, §29.007, since the statute was repealed by SB 1376, 86th Texas Legislature, 2019. In addition, language would be added in subsection (g), relettered as new subsection (f), to specify that school districts must comply with 19 TAC §89.1094 when contracting for services from non-public day schools.

Proposed new §89.1092, Contracting for Residential Educational Placements for Students with Disabilities, would be added as a result of HB 3, 86th Texas Legislature, 2019. HB 3 renumbered TEC, §42.151, to §48.102 and amended it to transfer rulemaking authority related to contracts for residential placements for students with disabilities from the SBOE to the commissioner. As a result, the language from 19 TAC §89.61 adopted under the SBOE's authority would be proposed as new 19 TAC §89.1092. In order to align with 19 TAC §89.1094, the new rule would differ from the current SBOE rule by increasing in subsection (a)(4)(E) the number of onsite visits a school district must make to a residential facility. Additionally, new subsection (b) would be added to specify the notification procedures a school district must follow if an admission, review, and dismissal (ARD) committee decides to place a student in a residential facility and address TEA's approval of the use of funds and/or the facility as applicable.

The proposed amendment to §89.1094, Students Receiving Special Education and Related Services in an Off-Campus Program, would include technical edits such as updated references to statute and other administrative rule and clarification regarding the placement of students with disabilities in off-campus programs.

Division 7, Dispute Resolution

The proposed amendments to §89.1165, Request for Special Education Due Process Hearing, §89.1193, Special Education Mediation, §89.1195, Special Education Complaint Resolution, and §89.1197, State Individualized Education Program Facilitation, would allow for the filing by electronic mail of special education due process hearing requests, special education mediation requests, special education complaints, requests for reconsideration of special education investigative reports, and requests for a state-provided facilitator for an ARD committee meeting.

FISCAL IMPACT: Matthew Montaño, 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 create a new regulation by adopting rules for instructional arrangements and settings and contracting for residential educational placements for students with disabilities under the commissioner's rulemaking authority. HB 3, 86th Texas Legislature, 2019, transferred rulemaking authority from the SBOE to the commissioner. In addition, the proposed rulemaking would expand and limit existing regulations as follows.

Proposed changes to 19 TAC §89.1011 would expand the rule by specifying that students are not required to receive response to intervention for any given length of time before a referral for a full individual and initial evaluation is made.

Proposed changes to 19 TAC §89.1040 would limit the rule by placing specific requirements on who must conduct an orientation and mobility evaluation and by setting out requirements for how that evaluation must be conducted. The rule is also limited by placing specific requirements on who must participate in reevaluations.

Proposed changes to 19 TAC §89.1047 would limit the rule by specifying that a TEA staff member may not serve as a surrogate parent.

Proposed changes to 19 TAC §89.1055 would limit the rule by removing outdated provisions.

Proposed changes to 19 TAC §89.1075 would limit the rule by removing an outdated reference to statute.

The proposed rulemaking would also increase the number of individuals subject to the rule's applicability by updating §89.1070 to permit students to earn an endorsement with modification of the curriculum if the modified curriculum is determined by the student's ARD committee to be sufficiently rigorous.

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 repeal an existing regulation; would not decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC BENEFIT AND COST TO PERSONS: Mr. Montaño 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 ensuring that rule language is based on current law and providing school districts and families with clarifications regarding special education requirements. 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 new data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: 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 October 16, 2020, and ends November 16, 2020. Public hearings on the proposal are scheduled for 8:30 a.m. on October 27 and 29, 2020. The public may participate in the October 27 hearing virtually by registering in advance for the meeting at https://us02web.zoom.us/j/6792855729. Dial in by phone at +1 346 248 7799. Supported devices can access the meeting at +13462487799,,6792855729#. The public may participate in the October 29 hearing virtually by registering in advance for the meeting at https://us02web.zoom.us/j/87843168566. Dial in by phone at +1 346 248 7799. Supported devices can access the meeting at +13462487799,,87843168566#.

Both hearings will be recorded and made available publicly. Parties interested in testifying must log in between 8:15 a.m. and 8:30 a.m. on the date of the applicable hearing and are encouraged to also send written testimony to spedrule@tea.texas.gov. The hearing(s) will conclude once all who have registered have been given the opportunity to comment. Questions about the hearings should be directed to SpecialEducation@tea.texas.gov. Additionally, persons requiring special accommodations, including the use of an interpreter, should notify the agency by emailing SpecialEducation@tea.texas.gov at least five working days before the respective hearing.

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/.

STATUTORY AUTHORITY. The amendments and new section are proposed under Texas Education Code (TEC), §28.025, as amended by House Bill (HB) 165, 86th Texas Legislature, 2019, which establishes requirements, in part, for endorsements; TEC, §29.001, which establishes general statutory authority for the state to develop, implement, and monitor a statewide plan for special education; TEC, §29.003, which establishes state-specific criteria related to eligibility requirements for special education; TEC, §29.004, which establishes state-specific criteria related to full individual and initial evaluations for special education; TEC, §29.005, which establishes state-specific criteria related to students' individualized education programs (IEPs); TEC, §29.010, which establishes requirements related to monitoring activities for special education; TEC, §29.011 and §29.0111, which establish requirements related to transition programming for students eligible for special education; TEC, §29.0151, as amended by HB 1709, 86th Texas Legislature, 2019, which establishes requirements related to the appointment of surrogate parents to children in foster care who are eligible for special education services; TEC, §29.019, which establishes requirements related to the state's facilitated IEP project; TEC, §30.002, as amended by Senate Bill 522, 86th Texas Legislature, 2019, which establishes requirements related to the state's development and implementation of a plan for the education of children with visual impairments who are under 21 years of age; TEC, §48.102, as added by HB 3, 86th Texas Legislature, 2019, which establishes requirements related to funding for special education programs; 34 Code of Federal Regulations (CFR), §300.8, establishes definitions of eligibilities under special education; 34 CFR, §300.147, which establishes state monitoring requirements for facilities in which a student's admission, review, and dismissal committee have placed students who are eligible for special education; 34 CFR, §§300.151-300.153, which establish requirements related to the filing and resolution of special education complaints; 34 CFR, §300.320, which establishes requirements related to content of a student's IEP; 34 CFR, §300.506, which establishes requirements related to a state's mediation program; 34 CFR, §300.507, which establishes requirements related to a state's due process hearing program; and 34 CFR, §300.600, which establishes requirements related to the state's monitoring authority of special education programs.

CROSS REFERENCE TO STATUTE. The amendments and new section implement Texas Education Code, §§28.025, as amended by House Bill (HB) 165, 86th Texas Legislature, 2019; 29.001; 29.003; 29.004; 29.005; 29.010; 29.011; 29.0111; 29.0151, as amended by HB 1709, 86th Texas Legislature, 2019; 29.019; 30.002, as amended by Senate Bill 522, 86th Texas Legislature, 2019; and 48.102, as added by HB 3, 86th Texas Legislature, 2019; and 34 Code of Federal Regulations, §§300.8, 300.147, 300.151, 300.152, 300.153, 300.320, 300.506, 300.507, and 300.600.