The Texas Education Agency (TEA) proposes the repeal of §89.1049 and §89.1141; new §§89.1049, 89.1052, 89.1053, 89.1054, 89.1141, and 89.1152; and amendments to §§89.1050, 89.1070, and 89.1131, concerning special education services. The sections clarify federal regulations and state statutes pertaining to delivering special education services to students with disabilities. The proposed amendments reflect new and revised rules resulting from revisions to the Texas Education Code (TEC), clarification of rulemaking intent to align with the Individuals with Disabilities Education Act (IDEA) Amendments of 1997, and additional revisions that clarify current practice as well as the commissioner of education's intent regarding special education issues.

During the 77th Texas Legislative Session, 2001, several new sections of special education law were added and other sections were amended. Additionally, requests for clarification were received from both special education stakeholders and the United States Department of Education, Office of Special Education Programs, regarding the commissioner of education's intent with implementation of sections of 19 TAC Chapter 89 adopted effective September 1, 1996, and March 6, 2001. The proposed amendments address the legislative requirements and the requests for clarification. Technical edits are also proposed to correct references to federal statutory requirements.

The most significant issue pertaining to these proposed amendments relates to the development of new §89.1053, relating to the use of restraint and time-out for students with disabilities. This section and §89.1054, relating to seclusion, were developed pursuant to requirements found in TEC, §37.0021. Additionally, during the legislative session in 2001, the TEC was amended to require the commissioner to develop rules regarding the transfer of parental rights to adult students with disabilities. Based on changes to the TEC, the commissioner, under his general rulemaking authority, will create a rule regarding the discretionary placement of students with disabilities in juvenile justice alternative education programs. As a result of these amendments to state statute, the repeal of and new §89.1049 and new §89.1052 are proposed to reflect legislative intent.

Additional changes include: the clarification of requirements in §89.1050(b) for developing an individualized education program (IEP) for students three years of age and older; the clarification of requirements in §89.1050(d) related to timelines for making eligibility determinations and placement decisions; the clarification of intent in §89.1050(e) related to the requirement to provide a written or audiotaped copy of the individualized education program (IEP) as referenced in TEC, §29.005; the clarification of requirements in §89.1050(f) for conducting admission, review, and dismissal (ARD) committee meetings for a student new to a school district; and the addition of a reference in §89.1050(g) to proposed new 19 TAC §89.1053, relating to procedures for use of restraint and time-out, and §89.1054, relating to seclusion. Additional changes also include: the clarification of graduation requirements in §89.1070 and related evaluation requirements for students graduating under the provisions of §89.1070(c); the alignment of §89.1131(e) with current certification requirements for orientation and mobility specialists; the repeal of and new §89.1141, relating to education service center regional special education leadership to align with federal requirements at 34 CFR, §300.382(j), and current responsibilities for the provision of leadership, training, and technical assistance in the area of special education; and the addition of §89.1152, relating to presentment to the ARD committee of issues under dispute prior to the filing of a request for due process hearing.

Nora Hancock, associate commissioner for education of special populations, has determined that for the first five-year period the repeals, amendments, and new sections are in effect there will be fiscal implications for state or local government as a result of enforcing or administering the sections. The training requirements found in proposed new §89.1053, relating to procedures for use of restraint and time-out for students with disabilities, have an anticipated fiscal impact to school districts over the next five years of $6,072,619. The increased funding received by local education agencies through the IDEA, Part B, is available for use in covering increased training costs. TEC, §37.0021, requires that the TEA identify through commissioner's rules any discipline management practice or behavior management technique that requires a district employee or volunteer or an independent contractor of a district to be trained before using that practice or technique. Through this proposed rulemaking effort, the TEA prescribes those training requirements. The estimated costs related to training a core group of personnel are $1,093,908 for fiscal year 2002 (25% of core personnel) and $3,281,722 for fiscal year 2003 (75% of core personnel). For fiscal years 2004-2006, the cost of providing initial training for new personnel and ongoing training for continuing personnel is $565,663 per year. Ongoing training will be necessary for personnel to maintain current knowledge consistent with professionally accepted practices for behavior management as specified in the law.

Ms. Hancock has determined that for each year of the first five years the repeals, amendments, and new sections are in effect the public benefit anticipated as a result of enforcing the sections will be new and revised rules as required by the 77th Texas Legislature, 2001; clarification of rulemaking intent and/or federal requirements related to the ARD committee and graduation; guidance relating to current certification requirements for certain professionals; and current standards related to the implementation of federal regulations and state law. There will not be an effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed repeals, amendments, and new sections.

Comments on the proposal may be submitted to Criss Cloudt, Accountability Reporting and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed repeals, amendments, and new sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.

The amendments and new sections are proposed under 34 Code of Federal Regulations (CFR), §300.600, which outlines the responsibilities of TEA for all educational programs; and Texas Education Code, §§29.001, 29.005, 29.017, 37.0021, 37.004, and 42.003, which authorizes the commissioner of education to adopt rules related to delivering special education services, including the transfer of parental rights at age of majority, the use of restraint and time-out, and placement of students with disabilities.

The amendments and new sections implement 34 CFR, §300.600; and Texas Education Code, §§29.001, 29.005, 29.017, 37.0021, 37.004, and 42.003.