The Texas Education Agency (TEA) proposes amendments to §§89.1005, 89.1035, 89.1040, 89.1050, 89.1070, 89.1121, and 89.1131, concerning special education services. The proposed amendments would make updates related to eligibility determination for specific learning disabilities and provisions for students who are eligible for special education and related services who enroll in local educational agencies (LEAs) during the summer. The proposed amendments would also make conforming edits related to funding for special education; update terminology to implement Senate Bill (SB) 281, 86th Texas Legislature, 2019; and update cross references.

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, requires that some of the rules in the subchapter be revised. Other rules require revision to provide clarification and to clearly express the state requirements aligned with federal regulations. Specifically, the proposed amendments would update the rules as follows.

Division 1, General Provisions

Section 89.1005, Instructional Arrangements and Settings, would be amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to Texas Government Code (TGC), §392.002, by SB 281, 86th Texas Legislature, 2019.

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

Section 89.1035, Age Ranges for Student Eligibility, would be amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281.

Section 89.1040, Eligibility Criteria, would be amended to more clearly express the state requirements for identifying students with specific learning disabilities (SLD) that are aligned with federal requirements. The proposed changes would revise wording and clarify the psychological process practices used in identifying an SLD as allowed for under federal regulation. Section 89.1040 would also be amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281.

Section 89.1050, The Admission, Review, and Dismissal Committee, would be amended to clarify how LEAs should provide services to students who are eligible for special education and related services when they enroll in an LEA during the summer. The proposed changes would specify that students with disabilities are to receive all individualized education program (IEP) services starting the first day of school if they enrolled in an LEA during the summer. Additionally, references from "auditory impairment" to "deaf or hard of hearing" would be made based on statutory changes made to TGC, §392.002, by SB 281.

Section 89.1070, Graduation Requirements, would be amended to update cross references in subsections (g) and (h).

Division 4, Special Education Funding

Section 89.1121, Distribution of State Funds, would be amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281. The proposed amendment would also make conforming changes to the formula for funding special education to align with Texas Education Code, §48.102.

Division 5, Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, would be amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281.

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 TGC, §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 TGC, §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 TGC, §2001.0045.

TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under TGC, §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 expand existing regulations by clarifying requirements in §89.1040 related to the evaluation and determination of specific learning disabilities and by providing additional clarification in §89.1050(j) for LEAs regarding requirements related to the implementation of the IEPs of students who enroll during the summer.

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 limit or repeal an existing regulation; would not increase or 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 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 June 4, 2021, and ends July 5, 2021. Public hearings to solicit testimony and input on the proposal will be held at 8:30 a.m. on June 15 and 17, 2021, via Zoom. The public may participate in either hearing virtually by linking to the hearing at https://us02web.zoom.us/j/85663466293 or joining by SIP at 85663466293@zoomcrc.com. The public may attend one or both hearings. Anyone wishing to testify at one of the hearings must sign in between 8:15 a.m. and 9:00 a.m. on the day of the respective hearing. Each hearing will conclude once all who have signed in have been given the opportunity to comment. Each individual's comments are limited to three minutes, and each individual may comment only once. Both hearings will be recorded and made available publicly.

Parties who are interested in providing written testimony in addition to, or in lieu of, in-person testimony are encouraged to send written testimony to spedrule@tea.texas.gov. 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 TEA 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 are proposed under Texas Education Code (TEC), §28.025, which establishes requirements related to high school graduation and academic achievement records; 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, §48.102, which establishes formulas for funding special education programs; Texas Government Code, §392.002, as amended by Senate Bill 281, 86th Texas Legislature, 2019, which establishes requirements related to the use of person first respectful language; 34 Code of Federal Regulations (CFR), §300.8, which establishes definitions of eligibilities under special education; 34 CFR, §300.100, which establishes general authority for the statewide plan for special education; 34 CFR, §300.307, which establishes requirements related to criteria that states must adopt for determining eligibility for specific learning disabilities; 34 CFR, §300.308, which establishes requirements related to who determines whether a student has a specific learning disability; 34 CFR, §300.309, which establishes requirements related to eligibility criteria for specific learning disabilities; 34 CFR, §300.310, which establishes requirements related to the use of observations in the evaluation process for determining eligibility for specific learning disabilities; 34 CFR, §300.311, which establishes requirements related to the documentation of the determination of eligibility for specific learning disabilities; and 34 CFR, §300.323, which establishes requirements related to the implementation of students' individualized education programs and requirements related to transfer students.

CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§28.025, 29.001, 29.003, and 48.102; Texas Government Code, §392.002, as amended by Senate Bill 281, 86th Texas Legislature, 2019; and 34 Code of Federal Regulations, §§300.8, 300.100, 300.307-300.311, and 300.323.