The Texas Education Agency (TEA) adopts 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 amendments to §§89.1035, 89.1070, and 89.1197 are adopted with changes to the proposed text as published in the October 16, 2020 issue of the Texas Register (45 TexReg 7363) and will be republished. The amendments to §§89.1001, 89.1011, 89.1040, 89.1047, 89.1050, 89.1055, 89.1075, 89.1094, 89.1165, 89.1193, and 89.1195 and new 89.1005 and 89.1092 are adopted without changes to the proposed text as published in the October 16, 2020 issue of the Texas Register (45 TexReg 7363) and will not be republished. The adopted revisions 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.

REASONED 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 required revision to provide clarification, update cross references, and remove expired provisions. Specifically, the adopted revisions update rules as follows.

Division 1, General Provisions

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

Adopted new §89.1005, Instructional Arrangements and Settings, is 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 is adopted as new §89.1005. The adopted 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 adopted amendment to §89.1011, Full Individual and Initial Evaluation, clarifies when a referral for a special education evaluation may or must be made.

The adopted amendment to §89.1035, Age Ranges for Student Eligibility, updates cross references to 19 TAC §89.1070. In response to public comment, changes were made at adoption to update additional cross references to §89.1070.

The adopted amendment to §89.1040, Eligibility Criteria, implements 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 aligns the rule with federal guidance. The previous definition in §89.1040(c)(12) may have had the effect of narrowing the Individuals with Disabilities Education Act (IDEA) definition in 34 CFR, §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 adopted amendment to §89.1047, Procedures for Special Education Decision-Making for Students in Foster Care, implements changes to TEC, §29.0151, by HB 1709, 86th Texas Legislature, 2019, by clarifying that surrogate parents may not be employees of TEA.

The adopted amendment to §89.1050, The Admission, Review, and Dismissal Committee, replaces 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, is changed to TEC, §48.102, due to a renumbering of statute by HB 3, 86th Texas Legislature, 2019.

The adopted amendment to §89.1055, Content of the Individualized Education Program, removes provisions that expired at the beginning of the 2018-2019 school year. References to the 2018-2019 school year are removed from subsections (h) and (i).

The adopted amendment to §89.1070, Graduation Requirements, implements changes to TEC, §28.025, by HB 165, 86th Texas Legislature, 2019, which altered the means by which an endorsement may be earned. The adopted amendment specifies 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 are also updated. In response to public comment, changes were made at adoption to update cross references to 19 TAC §89.1070. A technical change was also made at adoption to replace the term "state assessments" with the term "end-of-course assessment instruments."

The adopted amendment to §89.1075, General Program Requirements and Local District Procedures, removes reference to TEC, §29.007, which was repealed by SB 1376, 86th Texas Legislature, 2019. In addition, language is added in subsection (f) to specify that school districts must comply with 19 TAC §89.1094 when contracting for services from non-public day schools.

Adopted new §89.1092, Contracting for Residential Educational Placements for Students with Disabilities, is 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 is adopted as new §89.1092. In order to align with 19 TAC §89.1094, the new rule differs 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) is 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 adopted amendment to §89.1094, Students Receiving Special Education and Related Services in an Off-Campus Program, includes 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

Adopted 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, 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. In response to public comment, a change was made at adoption to §89.1197 to increase the number of days by when a parent and local education agency (LEA) may request a facilitated individualized education program (IEP) team meeting. An additional change to §89.1197 was made at adoption to update a cross reference to 19 TAC §89.1050.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began October 16, 2020, and ended November 16, 2020, and included public hearings on October 27 and 29, 2020. Following is a summary of the public comments received and corresponding responses.

Comment: The Texas Council of Administrators of Special Education (TCASE) noted that the terms "general education" and "regular education" are used inconsistently throughout the rules and recommended that the term "general education" be used throughout.

Response: The agency disagrees that the terms need to be updated since the two terms are synonymous.

Comment: The Texas Classroom Teachers Association (TCTA) supported the proposed amendment to §89.1005, explaining that it maintains the important elements of §89.63.

Response: The agency agrees.

Comment: Disability Rights Texas (DRTx) recommended amending the phrase "vocational adjustment class/program" in proposed new §89.1005(c)(9) by changing the word "class" to "course" in order to align with terminology used in the field. Additionally, DRTx recommended amending proposed new §89.1005(c)(9) to include the statement "regularly scheduled direct involvement by special education personnel may be varied during the placement if the student is documented as meeting or exceeding individual transition goals."

Response: The agency disagrees. The rule describes an instructional setting, which is the reason the term "class" is used. The term "course" refers to a curriculum, not a setting. In addition, the recommended language relating to direct involvement by special education personnel could possibly limit the protections inherit in the ARD committee process for developing a student's IEP. The recommended language is also inconsistent with the requirement of 34 Code of Federal Regulations (CFR), §300.320, that the ARD committee determine and the IEP state the location, duration, and frequency of the student's special education and related services.

Comment: The Texas School for the Blind and Visually Impaired (TSBVI) commented that §89.1035 should be amended to clarify and implement TEC, §30.021(e), by adding language that would allow certain students with visual impairments who have graduated with a diploma and whose eligibility for special education and related services has ended, although still within the age range for eligibility, to continue to be eligible so as to receive expanded core curriculum from TSBVI.

Response: The agency disagrees as the rule is not inconsistent with TEC, §30.021(e). However, TEA will continue to work with TSBVI and the Texas School for Deaf (TSD) to pursue solutions related to providing extended core curriculum as provided for in state law.

Comment: TSBVI supported changes to §89.1040(c)(12).

Response: The agency agrees.

Comment: TSBVI commented that language should be added to §89.1070(a) to provide that graduation with a diploma that ends eligibility for special education and related services would not end eligibility for a student who is blind or has a visual impairment and requires services from TSBVI pursuant to TEC, §30.021(e).

Response: The agency disagrees as the rule is not inconsistent with TEC, §30.021(e). However, TEA will continue to work with TSBVI and TSD to pursue solutions related to providing extended core curriculum as provided for in state law.

Comment: An individual questioned whether proposed changes to §89.1070 create new special education eligibility. Specifically, the individual questioned whether new subsection (b)(2) permits students who have passed all courses for graduation credit without a modified curriculum but whose ARD committee has not required them to perform satisfactorily on the state assessments to retain eligibility for special education and related services even after they have received a diploma. The individual recommended that §89.1070 clarify that students graduating under new §89.1070(b)(2) are no longer eligible for special education and related services.

Response: The agency disagrees with the recommended change and clarifies that new §89.1070(b)(2) does not create any new eligibility allowances. Instead, the new language seeks to align with existing allowable LEA reported graduation codes, which are based on the federal requirements of 34 CFR, §300.102. The federal requirements provide that eligibility for special education and related services ends with the award of a high school diploma that is fully aligned with state standards. Thus, if a student's ARD committee determines that successful performance on end-of-course assessments is not required and the student graduates under §89.1070(b)(2), the student continues to be eligible to return for additional special education and related services as allowed for in §89.1070(j) so long as the student meets the age eligibility requirement.

Comment: An individual noted that several cross references in proposed §89.1070 need to be updated.

Response: The agency agrees and has made the necessary changes at adoption.

Comment: TCTA supported the addition of language in §89.1011 that specifies that a student is not required to be provided with interventions for any specific length of time prior to a referral being made or a full individual and initial evaluation being conducted. Additionally, TCTA supported the clarification that full individual and initial evaluation may be initiated at any time by school personnel.

Response: The agency agrees.

Comment: TCASE noted that §89.1121(h) has an outdated weight for mainstream funding and that the subsection needs to be revised.

Response: This comment is outside the scope of the proposed rulemaking since no changes were proposed to §89.1121. However, the agency may consider the suggested changes in future rulemaking.

Comment: DRTx and TCASE noted that §89.1197(e)(2) and (3) could be deleted in order to allow for a greater opportunity for facilitated IEP team meetings to occur.

Response: The agency disagrees with striking §89.1197(e)(2) and (3) because the agency believes it is vitally important for families and school districts to work together locally to reach consensus on a student's educational programming. The state envisions a state-facilitator as being a next level of support for families and school districts only when required. However, the agency agrees that §89.1197(e)(3) could be updated to allow more opportunity for facilitation. At adoption, language was modified to extend the timeline for a request for IEP facilitation from five calendar days to ten calendar days after the ARD committee meeting that ended in disagreement.

Comment: DRTX and TCASE recommended that, if §89.1197(e)(2) is not deleted as recommended, the reference to §89.1050(f) be updated to §89.1050(g).

Response: The agency agrees. The reference to §89.1050(f) has been updated at adoption to §89.1050(g).

STATUTORY AUTHORITY. The amendments and new section are adopted 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.