The Texas Education Agency (TEA) proposes amendments to §§89.1011, 89.1050, 89.1052, and 89.1185, and the repeal of §89.1110, concerning special education services for students with disabilities. The sections clarify federal regulations and state statutes pertaining to delivering special education services to students with disabilities. The proposed amendments reflect revised and repealed rules resulting from revisions to the Texas Education Code (TEC) and clarification of rulemaking to align with rulings of the Third Court of Appeals-Austin. The proposed rule actions address the legislative requirements through the repeal of 19 TAC §89.1110, Memorandum of Understanding on Individual Transition Planning for Students Receiving Special Education Services, and amendments to 19 TAC §89.1011, Referral for Full and Individual Initial Evaluation; 19 TAC §89.1050, The Admission, Review, and Dismissal (ARD) Committee; and 19 TAC §89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP). The court ruling is addressed in the proposed amendment to 19 TAC §89.1185, Hearing.

During the 78th Texas Legislative Session, 2003, several new sections of law impacting special education were added and other sections were amended. Additionally, on July 11, 2003, the Third Court of Appeals-Austin ruled in a case impacting current rule related to the timeline for appealing the decision of a due process hearing officer. As a result of the changes to the state law and rulings by the Court, 19 TAC Chapter 89, Subchapter AA, must be amended to incorporate these changes to ensure school district compliance with new procedural requirements.

Specifically, this rule action proposes to amend: (1) 19 TAC §89.1011, Referral for Full and Individual Initial Evaluation, to reflect changes made in TEC, §29.004, related to the 60 calendar-day timeline for completion of a full and individual initial evaluation; (2) 19 TAC §89.1050, The Admission, Review, and Dismissal (ARD) Committee, to reflect requirements of the ARD committee related to personal graduation plans and intensive instruction as referenced in TEC, §28.0212 and §28.0213; (3) 19 TAC §89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP), to reflect an extension of the rule effective date related to these placements as referenced in TEC, §37.004; and (4) 19 TAC §89.1185, Hearing, to reflect the findings of the Third Court of Appeals-Austin related to the timeline for appealing the decision of a due process hearing officer. This rule action also proposes the repeal of 19 TAC §89.1110, Memorandum of Understanding on Individual Transition Planning for Students Receiving Special Education Services, to reflect the changes made in TEC, §29.011.

The most significant issue pertaining to these proposed actions relates to the repeal of 19 TAC §89.1110 to comply with amendments made to TEC, §29.011. The amended law in TEC, §29.011, no longer requires a memorandum of understanding (MOU) on transition planning for students with disabilities. Therefore, the repeal of the current MOU in 19 TAC §89.1110 is proposed to reflect legislative intent. Additional language related to the new transition requirements reflected in TEC, §29.011, will be reflected in a future rule proposal. Additionally, during the legislative session in 2003, the TEC was amended to revise the calculation of the timeline for completion of full and individual initial evaluations. The timeline no longer will begin at referral of the student for evaluation but, rather, at the point a school district receives written consent signed by the student's parent or legal guardian. Based on changes to TEC, §29.004, the amendment of 19 TAC §89.1011 is proposed to reflect an appropriate change related to the 60 calendar-day timeline for completion of a full and individual initial evaluation.

The proposed rule actions related to 19 TAC Chapter 89, Subchapter AA, incorporate procedural requirements contained in the state law and resulting from court rulings that schools districts must follow. A statewide public hearing will be scheduled for late August or early September 2003. In addition, the public will be given the opportunity to submit written/electronic comments.

Paul Cruz, deputy commissioner for dropout prevention and initiatives, has determined that for the first five-year period the amendments and repeal are in effect there will be fiscal implications for state or local government as a result of enforcing or administering the amendments and repeal. The repeal of the MOU in §89.1110 and elimination of related activities involving separate individual transition planning meetings and individual transition plans (ITPs) for students with disabilities who are at least 16 years of age will result in an anticipated savings to school districts of approximately $17,567,570 over the next five years. The reduction in costs is estimated as a reduction in staff time directed toward separate transition planning activities beyond what already is required by the Individuals with Disabilities Education Act and related federal regulations.

Dr. Cruz has determined that for each year of the first five years the amendments and repeal are in effect the public benefit anticipated as a result of enforcing the amendments and repeal will be to clarify legislative intent and/or state requirements related to the evaluation of students with disabilities for special education services, provide guidance relating to the responsibilities of the ARD committee, and reflect current court rulings 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 amendments and repeal as proposed.

Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, 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 amendments and repeal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the section has been published in the Texas Register.

The amendments are proposed under the Texas Education Code (TEC), §29.001, which authorizes the commissioner of education to adopt rules for the administration and funding of the special education services.

The proposed amendments implement 34 Code of Federal Regulations, §300.347, and TEC, §§28.0212, 28.0213, 29.004, and 37.004.