The Texas Education Agency (TEA) adopts the repeal of §89.1049 and §89.1141; new §§89.1049, 89.1052, 89.1053, and 89.1141; 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 repeals of §89.1049 and § 89.1141 and amended §89.1131 are adopted without changes to the proposed text as published in the December 21, 2001, issue of the Texas Register (26 TexReg 10471) and will not be republished. New §§89.1049, 89.1052, 89.1053, and 89.1141 and amended §89.1050 and § 89.1070 are adopted with changes to the proposed text as published in the December 21, 2001, issue of the Texas Register (26 TexReg 10471). The TEA withdraws proposed new §89.1054 based upon a determination that the Texas Education Code (TEC), §37.0021, does not give the TEA explicit rulemaking authority on the issue of seclusion. The TEA withdraws proposed new §89.1152 based upon a letter of interpretation to the TEA from the Office of Special Education Programs, Department of Education. The notices of withdrawal for §89.1054 and §89.1152 can be found in the Withdrawn Rules section in this issue.

The adopted amendments reflect new and revised rules resulting from revisions to the 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 adopted amendments address the legislative requirements and the requests for clarification. Technical edits are also adopted to correct references to federal statutory requirements.

The most significant issue pertaining to these adopted amendments relates to the development of new §89.1053, relating to the use of restraint and time-out for students with disabilities. This section was 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 adopted 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 adopted new 19 TAC §89.1053, relating to procedures for use of restraint and time-out. 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; and 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.

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

New §89.1049, Parental Rights Regarding Adult Students, was modified by adding subsection (e) to clarify that the rule does not impact the ability of adult students or parents of minor students to execute a power of attorney.

Amended §89.1050, The Admission, Review, and Dismissal (ARD) Committee, was modified in subsection (f)(1) to add wording to reflect the requirement of written documentation of parental satisfaction with their student's current IEP. Subsection (g) was revised to remove reference to §89.1054, which has been withdrawn.

New §89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP), was modified in order for this section to conform to other sections in this subchapter. Specific reference to charter schools was removed from subsections (b) and (c). Charter schools are not specifically referenced in this subchapter because commissioner's rules for special education are made applicable to charter schools through the TEC.

New §89.1053, Procedures for Use of Restraint and Time-Out, was modified in several ways. Language regarding a felony was removed from subsection (b)(1)(B) to allow for the use of reasonable and professional judgment in determining the serious nature of imminent property destruction. Language was added to subsections (c)(3) and (j) to reflect that the use of restraint and any behavior management technique should be implemented in consideration of the health and safety of others as well as that of the student. The required implementation date in subsections (d)(1)-(2) and (h)(1)-(2) was changed to April 1, 2003, instead of January 1, 2003, in order to allow additional time to complete training requirements on the use of restraint and time-out. Language in subsections (d)(4) and (h)(4) was revised to clarify that all trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint and time-out. Language in subsection (e)(1)-(3) was revised to address concerns regarding notification to the campus administrator and parents when restraint is used. Subsection (e)(4) was revised to address concerns about when documentation must be placed in the eligibility folder and to emphasize the role of the documentation in relation to the ARD committee's responsibility to address the behavior needs of the student. A technical edit was made in subsection (e)(5) to clarify that more than one staff member may administer restraint. Language was added to subsection (f) to provide additional clarification on the use of restraint and to provide additional examples of activities that do not constitute restraint as it relates to rule requirements. This additional language addresses the issues of self-injurious behaviors and the use of seat belts and safety devices during transportation. A technical change was made to remove the words "behavior intervention plan" in subsection (g)(2) since the acronym BIP is now identified in an earlier subsection. Language in subsection (h)(3) has been rewritten to include the provision that training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies.

New §89.1054, Seclusion, was withdrawn based on a determination that TEC, §37.0021, does not give the agency explicit rulemaking authority on the issue of seclusion.

Amended §89.1070, Graduation Requirements, was modified in subsection (e) to add clarifying language in relation to the role of the ARD committee in the evaluation process prior to graduation. Subsection (f) was revised to reflect that students who participate in graduation ceremonies but who will remain in school to complete their education do not have to be evaluated in accordance with subsection (e).

New §89.1141, Education Service Center Regional Special Education Leadership, was modified in several ways. Subsections (a), (b), and (d) were revised to reflect agency intent to utilize an existing system of professional development to create opportunities for parents and special and general education personnel to receive joint training. Specific state and federal regulations were cited in subsection (a) relative to ESC participation with TEA in this matter. Language was added to subsection (b) relative to each ESC serving as the first point of contact for special education technical assistance, support, and training for school districts, parents, and other community stakeholders. Language was added to subsection (d) to specify that any charges assessed by ESCs must be determined only after priorities have been established through input from affected school districts, including data collected from parents and communities through partnerships with school districts. Subsection (e) was changed to address the need for properly certified personnel regardless of the funds used to offer the services, while maintaining the original intent to provide flexibility in the delivery of regional services for students with visual impairments.

New §89.1152, Presentment, was withdrawn based on a letter of interpretation to the TEA from the Office of Special Education Programs, Department of Education.

The following comments were received regarding adoption of the repeals, new sections, and amendments.

General Comments.

Comment. A chairperson at an elementary school commented that all changes in the proposed rule packet seemed appropriate.

Agency Response. The agency, in general, agrees with this comment. However, modifications have been made to the rules as a result of public comment.

§89.1049. Parental Rights Regarding Adult Students.

Comment. A representative from Advocacy, Inc. commented that the rules should be supplemented by an addition to §89.1055, Content of the Individualized Education Program (IEP), requiring that the IEP of a student expected to continue receiving special education services from the public school after his/her 18th birthday address how the student will receive training on the special education process and how to be his/her own advocate during that process.

Agency Response. The agency disagrees. Any revision to §89.1055 is beyond the scope of this rulemaking process and would have to be addressed in another rulemaking process.

Comment. A director of special education, a principal, and an assistant principal in charge of special education commented that the proposed rule is clear and should be passed as proposed.

Agency Response. The agency agrees but has added additional clarifying language in subsection (e).

Comment. Five parents, a case manager, and a commenter whose role is unidentified commented that they disagree with the rule stating that a parent should not be removed from the process and that some students are not able to make appropriate educational decisions without their parent's input. Some commenters also stated that having the parents obtain legal guardianship could not only put a financial burden on the parent, but also could put a negative stigma on the child.

Agency Response. The agency disagrees. The agency believes that the rule provides for the appropriate and required transfer of parental rights to an adult student, unless action under the Probate Code has prevented the transfer. Furthermore, the agency does not believe that the rule as written precludes continued parent participation in the special education process, even when guardianship is not obtained. Parents can continue to be involved in the process at the request of either the district or the adult student and can continue to provide input into educational decisions.

Comment. A representative of United Cerebral Palsy of Texas recommended that: (1) no guardianship be required for a parent to participate; (2) parents and students be able to fully participate in all admission, review, and dismissal (ARD) meetings; (3) students receive self-advocacy training; and (4) students receive training on their rights and responsibilities under the Individuals with Disabilities Education Act, Part B (IDEA-B).

Agency Response. The agency disagrees. The agency does not believe that the rule as written precludes continued parent participation in the special education process, even when guardianship is not obtained. Parents can continue to be involved in the process at the request of either the district or the adult student and can continue to provide input into educational decisions. Additionally, the agency believes that any rule revisions related to the suggestions for self-advocacy and other training would more appropriately be reviewed and addressed within the scope of other special education rules.

Comment. A representative of the Texas Center for Disabilities Studies expressed concerns about the rule and stated that eliminating a parent's right to be involved in the educational decision making process could severely limit a student's ability to receive educational services past the age of 18. The representative also expressed concerns about parents being forced to go through an expensive legal guardianship process.

Agency Response. The agency disagrees. The agency does not believe that the rule as written precludes continued parent participation in the special education process, even when guardianship is not obtained. Parents can continue to be involved in the process at the request of either the district or the adult student and can continue to provide input into educational decisions. The agency also believes that parents and adult students will be able to resolve issues regarding educational decision making through processes other than guardianship.

Comment. A director of special education and a parent commented that the rule is a positive change that educates parents about the laws and shows the child's disability is not an inability to make decisions.

Agency Response. The agency agrees.

Comment. A government affairs specialist for The ARC of Texas and a commenter whose role was unidentified commented that subsection (a) complies with federal regulations and clarifies that the meeting notices will be sent to both the parent and student after a transfer of rights.

Agency Response. The agency agrees.

Comment. Three parents and two case managers expressed concerns about parents' continued participation in admission, review and dismissal (ARD) committee meetings after a student turns 18. The case managers stated that parents should continue to have a legal voice, and a parent requested clarification on safeguards for students if parents do not choose guardianship.

Agency Response. The agency does not believe that the rule as written precludes continued parent participation in the ARD process. However, the agency believes that it is appropriate for rights to transfer to students with disabilities at the age of majority, just as they do to students without disabilities, unless it has been determined by a legal process that this is not appropriate based on the competence of the student to make educational decisions. Parents can continue to support students in educational decision making after a transfer of rights. The agency will provide additional guidance on these issues and supports the provision of training to both parents and students to facilitate the transfer process and appropriate educational decision-making.

Comment. Two parents expressed concerns that there needs to be a plan for information dissemination to parents and stated that parents need to understand about guardianship and what options, other than guardianship, are available when rights transfer to the student so that a parent can continue to be involved.

Agency Response. The agency will provide additional guidance on these issues and supports the provision of training and dissemination of information to both parents and students to facilitate the transfer process and appropriate educational decision-making.

Comment. An Education Service Center (ESC) special education director and fifty-one school staff members questioned how much greater the responsibility of the ARD committee would be if the student cannot make competent decisions and expressed concerns about the cost of obtaining guardianship.

Agency Response. The agency will provide additional guidance on these issues. The ARD committee will continue to play its appropriate role in educational decision-making; however, determinations of competence will not be made by the ARD committee. Additionally, the agency believes that a guardianship proceeding under the Probate Code is the only mechanism available in state law for determining that an individual with a disability who has reached the age of majority is not competent to make educational decisions.

Comment. A parent, a high school principal, and two special education directors commented that language should be added to the rule to allow a parent or another appropriate individual to be appointed to represent a student if the student is deemed incompetent by the ARD committee. The parent and high school principal also stated that the phrase, "unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship" should be removed from subsection (a) and that the word "competent" should be added before the phrase "adult student" in the first sentence of subsection (d).

Agency Response. The agency disagrees. A guardianship proceeding under the Probate Code is the only mechanism available in state law for determining that an individual with a disability who has reached the age of majority is not competent to make educational decisions. Therefore, the reference to the Probate Code continues to be necessary. Additionally, the agency does not believe the addition of the word "competent" is necessary in subsection (d) to clarify the intent of the rule.

Comment. The executive director for the Texas Council for Developmental Disabilities and a program administrator for the Disability Policy Consortium expressed concerns that many adult students may not have the requisite skills to make appropriate educational decisions and that the rules would motivate parents to seek guardianship even when students were competent to make decisions in order to maintain a presence at the ARD. The commenters recommended that the rules require representation by an independent, neutral party from an advocacy or parent training organization and training for students about their educational rights.