The Texas Education Agency (TEA) adopts amendments to §§89.1205, 89.1210, 89.1220, 89.1225, 89.1240, 89.1245, 89.1250, 89.1265 and the repeal of §89.1255, concerning the state plan for educating limited English proficient (LEP) students. The sections establish definitions, requirements, and procedures related to: bilingual education and English as a second language programs; program content and design; language proficiency assessment committees; testing and classification of students; parental authority and responsibility; staffing and staff development; required summer school programs; local plan; and evaluation. Sections 89.1205, 89.1210, 89.1240, 89.1245, 89.1250, and 89.1265 and the repeal of §89.1255 are adopted without changes to the proposed text as published in the January 18, 2002, issue of the Texas Register (27 TexReg 449) and will not be republished. Section 89.1220 and §89.1225 are adopted with changes to the proposed text as published in the January 18, 2002, issue of the Texas Register (27 TexReg 449).

The adopted amendments incorporate new state testing requirements for LEP students in Grades 3-8 enacted by Senate Bill 676, 77th Texas Legislature, 2001. The adopted amendments and repeal also clarify program requirements to facilitate compliance monitoring activities.

The most significant issue included in the adopted amendments relates to assessment provisions in §89.1220 that incorporate references to recently-adopted commissioner's rules concerning the participation of LEP students in state assessments. Language was added to §89.1220 to delineate appropriate assessment options for LEP students and criteria to be considered by language proficiency assessment committees. Another significant change relates to program content and design for English as a second language programs described in §89.1210. Language was modified in §89.1210 to delete obsolete language and to specify current requirements for English as a second language programs, including the requirement that these programs address the affective, linguistic, and cognitive needs of LEP students.

Additional changes include: modifications in §89.1205 that update cross-references; revised language in §89.1225 that reinforces requirements related to identification, enrollment, and exit criteria; new language in §89.1240 that addresses eligibility for inclusion in district bilingual education allotment; modifications in §89.1245 and §89.1250 that update cross-references; repeal of §89.1255 that removes the provision for districts to develop local plans; and modification in §89.1265 that removes reference to local plans.

In response to public comments, the following changes were made to 19 TAC Chapter 89, Subchapter BB, since published as proposed.

Section 89.1220(l) was modified to clarify that students who are not academically successful due to limited English proficiency shall be reclassified as LEP and shall be recommended for participation in bilingual education or English as a second language. Language was also added to clarify that students who are not reclassified as LEP may be placed in compensatory and accelerated instruction or other special language program which addresses their needs.

Several modifications were made to §89.1225. Language was added to subsection (a)(2) to provide clarification regarding identification of a LEP student whose ability is so limited that it renders assessments invalid. Subsection (f)(3) was modified to correctly cross reference subsection (j) of that section. Subsection (g) was modified to include LEP identification of kindergarten students preregistered in the spring. Subsection (h)(1)(A) was modified to include a technical edit defining the acronym for the Texas Education Code. Subsection (i) was modified to remove proposed language regarding the exit of a student from a bilingual education or English as a second language program after Grade 1. Instead, language was added to subsection (i) reinforcing the need for students to meet academic standards by Grade 3 in accordance with the legislatively mandated student success initiative.

The following public comments were received on the amendments to 19 TAC Chapter 89, Subchapter BB, since published as proposed.

Comment. An individual commented on the need to add one more criteria in §89.1220(i) addressing the student's yearly progress for the language proficiency assessment committee to consider in determining an appropriate assessment option.

Agency Response. The agency disagrees because this recommended criteria are already addressed in §89.1220(i)(2). The language was not modified.

Comment. Education service center (ESC) bilingual education representatives commented that the last part of §89.1220(l) needs clarification and recommended the following language: "Those students who are not academically successful due to limited English proficiency shall be reclassified as limited English proficient (LEP), and shall be recommended for participation in bilingual education or English as a second language. Students who are not reclassified as LEP may be placed in compensatory and accelerated instruction, or other special language program which addresses their needs."

Agency Response. The agency agrees and has modified the section accordingly.

Comment. An individual questioned whether the language in §89.1225(a)(2) "or another test approved by TEA" meant that the agency was moving away from standardized tests.

Agency Response. This language does not represent any change from current testing requirements. No modification to rule language is necessary.

Comment. ESC bilingual education representatives requested clarification in §89.1225(a)(2) regarding identification of a LEP student whose ability is so limited that it renders assessments invalid. The representatives suggested adding: "unless the norm-referenced measure is not valid in accordance with (f)(2)(C) of this section."

Agency Response. The agency agrees and has modified the section accordingly.

Comment. An individual commented that the statement "within the established norming period" in §89.1225(e) has been helpful for districts with Testing Centers.

Comment. An individual commented that the cross reference in §89.1225(f)(3) should read (j) instead of (k).

Agency Response. The agency agrees and has modified the section to correct the reference.

Comment. ESC bilingual education representatives recommended the addition of "and kindergarten" and "preregistered" in §89.1225(g) to include LEP identification of kindergarten students preregistered in the spring.

Agency Response. The agency agrees and has modified the section accordingly.

Comment. An individual asked if information provided in §89.1225(h)(1) concerning exit from a program is also applicable for moving students from bilingual to English as a second language (ESL) classes.

Agency Response. Exit criteria in §89.1225(h)(l) apply only to students who are exiting from either a bilingual education or an ESL program and are being reclassified as English proficient. No modification to rule language is necessary.

Comment. An individual asked if students need to show proficiency in the native language prior to transitioning.

Agency Response. Section 89.1225(h) establishes that only students served through bilingual education need to demonstrate proficiency in the primary language and in English. No modification to rule language is necessary.

Comment. ESC bilingual representatives and another individual asked if §89.1225(h)(2) means that parent approval is necessary for program exit. They also inquired whether the student remains classified as limited English proficient if the student's parent disapproves.

Agency Response. Section 89.1240(b) provides that students meeting exit requirements may continue in the bilingual education or English as a second language program with parental approval but are not eligible for inclusion in the district bilingual education allotment. No modification to rule language is necessary.

Comment. An individual requested clarification on whether the proposed language in §89.1225(h) makes it unallowable for students to exit with ITBS scores during the school year. The individual asked for a rationale for this requirement.

Agency Response. The proposed rule is aligned to statutory language regarding assessments at the end of the school year. No modification to rule language is necessary.

Comment. ESC bilingual education representatives requested removal of the language regarding the exit of a student from a bilingual education or ESL program after Grade 1 that had been proposed in §89.1225(i) and the addition of a statement reinforcing the need for students to meet literacy standards by Grade 3 in accordance with the legislatively mandated student success initiative.

Agency Response. The agency agrees and has modified the section accordingly.

Comment. An individual expressed high approval to the entire §89.1245 concerning the development of training materials.

Comment. An individual commented that the requirement in §89.1245(b) regarding the October 1 deadline for an exception of bilingual or ESL certification requirements was too difficult to meet for all language groups and asked if selected languages could be submitted.

Agency Response. The agency disagrees. The October 1 deadline is a well-established, long-standing date that is required in order for the agency to determine compliance for the school year. The language was not modified.

Comment. An individual asked whether the provision in §89.1245(d) regarding continuing education programs could be used instead of or in addition to district staff development and/or college courses.

Agency Response. This is a local district option. No modification to rule language is necessary.

Comment. An individual asked if it is permissible under §89.1250(3)(B) to continue to conduct the summer school program for 6 hours each day for 4 weeks.

Agency Response. The rule allows for flexibility in days and weeks as long as the requirement of 120 hours is met. No modification to rule language is necessary.

Comment. An individual asked if there was any chance that the allotment per unit for summer school will be increased since the allotment severely underfunds the program.

Agency Response. Although requested, the legislature did not authorize an increase in the limited English proficient summer school allotment. No modification to rule language is necessary.

Comment. An ESC bilingual education representative requested that an explanation of "results of training" be added to §89.1265(b).

Agency Response. This is a local district option. The state is not prescriptive in this area. No modification to rule language is necessary.

The amendments are adopted under Texas Education Code, §§29.051-29.064, which authorizes the commissioner of education to adopt rules related to educating limited English proficient students.