The Texas Education Agency (TEA) adopts 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, without changes to the proposed text as published in the August 22, 2003, issue of the Texas Register (28 TexReg 6663) and will not be republished. The sections clarify federal regulations and state statutes pertaining to delivering special education services to students with disabilities. The adopted amendments reflect revised and repealed rules resulting from revisions to the Texas Education Code (TEC) and clarification of rulemaking to align with rulings of the Third Court of Appeals-Austin.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 adopted 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 adopted amendment to 19 TAC §89.1185, Hearing.

A public hearing was conducted on September 9, 2003, at the Embassy Suites Hotel-North in Austin. The public also was given the opportunity to submit written/electronic comments. Advocates generally are supportive of rule changes that align commissioner's rule with state law but have requested additional rule language to stipulate specific implementation requirements regarding timelines for completion of full and individual initial evaluations and for the appeal of findings of a due process hearing officer. School personnel generally support the revisions to rule language related to initial evaluation timelines, ARD committee requirements, and responsibilities related to discretionary placements in JJAEPs. Overall, advocates are concerned that local education agencies will not respond within reasonable timelines unless the rules reflect specific requirements, while school districts and administrator organizations generally prefer deregulation and increased local control. The commissioner's rules attempt to balance these interests along with legislative intent and mandate. The following comments were received regarding adoption of the amendments and repeal.

§89.1011, Referral for Full and Individual Initial Evaluation.

Comment. A representative from Advocacy, Inc. and a representative from Family to Family Network stated that, while the proposed rule correctly deletes the section of the TEC repealed in the recent state legislative session, the agency has the responsibility under the Individuals with Disabilities Education Act (IDEA) to assure that evaluations are conducted in a timely manner, stating that having no time limit on how long a district can take to get the consent form to the parents can be predicted to result in delays in testing and, therefore, in services. A timeline of five calendar days was recommended for a district to send the consent form to the parent for signature.

Agency response. The agency agrees in part and disagrees in part. It is necessary for the agency to delete the current portion of rule that is in conflict with the revised TEC, §29.004. It also is necessary for the agency to ensure that students with disabilities receive a free, appropriate public education, including the assurance that evaluations are conducted in a timely manner. However, it was not the agency's intent at this time to establish a standard regarding the timelines under which requested consent forms for evaluations must be provided to the parent. Any action in this regard will be the subject of future discussions with special education stakeholders and other involved parties and will take into consideration both federal requirements and legislative intent in regard to TEC, §29.004.

Comment. A visiting professor at a university suggested that the absence of a timeline for getting to a parent a requested consent form related to the evaluation of a student to determine eligibility for special education services may lead to prolonged time lapses between identifying the need for testing and the testing actually taking place, which may result in students not receiving timely and appropriate services.

Agency response. The agency agrees in part and disagrees in part. It is necessary for the agency to delete the current portion of rule regarding the previous timeline for evaluation that is in conflict with the revised TEC, 29.004. However, it also is necessary for the agency to ensure that students with disabilities receive a free, appropriate public education, including the assurance that evaluations are conducted in a timely manner. It was not the agency's intent at this time to establish a standard regarding the timelines under which requested consent forms for evaluations must be provided to parents, but action in this regard will be the subject of future discussions with special education stakeholders and other involved parties and will take into consideration both federal requirements and legislative intent in regard to TEC, §29.004.

Comment. One director of special education commented that the changes made to §89.1011 are very positive and eliminate confusion regarding when the timeline for full and individual initial evaluation begins.

Agency response. The agency agrees that it is necessary to delete the current portion of §89.1011 regarding the previous timeline for evaluation that is in conflict with the revised TEC, §29.004.

Comment. A representative of the Texas Council for Developmental Disabilities recommended that the agency state in rule that evaluations must be completed within 60 days of signed consent and that consent forms must be made available to a parent within seven calendar days of request for an evaluation.

Agency response. The agency disagrees. The requirements of TEC, §29.004, establish clear timelines related to the 60-day standard for completion of full and individual initial evaluations. Additionally, it was not the agency's intent at this time to establish a standard regarding the timelines under which requested consent forms for evaluations must be provided to a parent. Any action in this regard will be the subject of future discussions with special education stakeholders and other involved parties and will take into consideration both federal requirements and legislative intent in regard to TEC, §29.004.

§89.1050, The Admission, Review, and Dismissal (ARD) Committee.

Comment. A director of special education noted that, through the proposed rule language, admission, review and dismissal (ARD) committees would have the authority to ensure that students with disabilities receive the attention they need regarding early planning for graduation requirements.

Agency response. The agency agrees that early planning regarding graduation requirements supports positive results for students with disabilities and that the language in §89.1050 aligns certain special education requirements with processes established for all students.

§89.1052, Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP).

Comment. A director of special education indicated that the requirements of §89.1052 have worked well for her district and facilitate awareness of the unique needs of students with disabilities placed in the JJAEP. The director supported retaining this section of rule.

Agency response. The agency agrees. Retention of current rule language complies with standards established in TEC, §37.004.

§89.1110, Memorandum of Understanding on Individual Transition Planning for Students Receiving Special Education Services.

Comment. One special education counselor/parent suggested that §89.1110 not be repealed until new rule language related to the transition process for students with disabilities is finalized.

Agency response. The agency disagrees. The agency is repealing §89.1110 in response to action taken by the 78th Texas Legislature, 2003. Requirements related to secondary transition for students with disabilities will continue to be governed by the IDEA and federal regulations until such time as additional rules are promulgated by the agency.

Comment. One director of special education commented that the repeal of §89.1110 is necessary to reflect the changes made in TEC, §29.011, based on the rationale that the requirements in TEC, §29.011, meet the needs of students with disabilities.

Agency response. The agency agrees in part and disagrees in part. The agency is repealing §89.1110 in response to action taken by the 78th Texas Legislature, 2003. Requirements related to secondary transition for students with disabilities will continue to be governed by the IDEA and federal regulations until such time as additional rules are promulgated by the agency. However, it will be necessary for the agency to promulgate additional rules regarding transition to comply with the requirements of TEC, §29.011.

Comment. A representative of the Texas Workforce Commission (TWC) commented that the TWC has no objection to the repeal of §89.1110 and welcomes the opportunity to continue its support of transition services for students receiving special education.

Agency response. The agency appreciates the comment of the TWC representative.

§89.1185, Hearing.

Comment. A representative of Advocacy, Inc. recommended the addition of the text "no more than two years after the date the hearing officer issues his or her written decision in the due process hearing" be added at the end of the proposed rule as guidance to help ensure that parents and parent attorneys have the same information as school attorneys regarding the due process hearing system.

Agency response. The agency agrees in part and disagrees in part. The Third Court of Appeals-Austin found that the agency lacked rulemaking authority regarding the statute of limitations for bringing a civil action to appeal the findings of a hearing officer. Therefore, it would be inappropriate for the agency to replace the prior standard established in rule with a new rule-based standard. However, information regarding timelines established through legal precedent will be disseminated to parents and other stakeholders through other established channels of communication.

Comment. A director of special education supported the deletion of the 90-day statute of limitations as it allows parents more time to prepare their appeal.

Agency response. The Third Court of Appeals-Austin found that the agency lacked rulemaking authority regarding the statute of limitations for bringing a civil action to appeal the findings of a hearing officer. Therefore, the agency is removing the 90-day timeline from rule.

Comment. A representative of the Texas Council for Developmental Disabilities stated that the Council finds that the commissioner's rules provide valuable guidance to parents, school personnel, and the legal community serving these groups and requested that, to avoid misunderstandings, the agency include in rule the legal determination that parties who wish to appeal the hearing officer decision must do so within two years after the date of the written hearing officer ruling.

Agency response. The agency agrees in part and disagrees in part. The Third Court of Appeals-Austin found that the agency lacked rulemaking authority regarding the statute of limitations for bringing a civil action to appeal the findings of a hearing officer. Therefore, it would be inappropriate for the agency to replace the prior standard established in rule with a new rule-based standard. However, information regarding timelines established through legal precedent will be disseminated as guidance to parents and other stakeholders through other established channels of communication.

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