Part 2.
TEXAS EDUCATION AGENCY
Chapter 89.
ADAPTATIONS FOR SPECIAL POPULATIONS
Subchapter AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES
The Texas Education Agency (TEA) proposes amendments to §§89.1001,
89.1011, 89.1015, 89.1035, 89.1055, 89.1065, 89.1075, 89.1090, 89.1095, 89.1121,
89.1125, and 89.1131; the repeal of §§89.1020, 89.1025, 89.1030,
89.1040, 89.1045, 89.1050, 89.1060, 89.1070, 89.1085, 89.1105, 89.1151, 89.1155,
89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185, and 89.1190; and new §§89.1040,
89.1045, 89.1047, 89.1049, 89.1050, 89.1056, 89.1060, 89.1070, 89.1076, 89.1085,
89.1096, 89.1150, 89.1151, 89.1165, 89.1170, 89.1180, 89.1185, and 89.1191,
concerning special education services. The sections clarify federal regulations
and state statutes pertaining to delivering special education services to
students with disabilities. The sections also establish definitions, requirements,
and procedures related to: interagency agreements; special education funding;
personnel issues; and resolution of disputes between parents and school districts.
The Individuals with Disabilities Education Act (IDEA) Amendments of 1997,
was signed into law in June 1997. The final federal regulations were published
by the United States Department of Education, Office of Special Education
Programs, in March 1999. The IDEA Amendments of 1997 contain numerous changes
to the federal law pertaining to the education of students with disabilities.
In addition, during the 76th Texas Legislative Session, 1999, several new
sections of special education law were added and other sections were amended.
As a result of the changes to the federal special education law and regulations
and state law, 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter
AA, Special Education Services, must be amended to reflect these changes to
ensure school district compliance with new procedural and reporting requirements.
The most significant issue pertaining to these proposed changes relates
to the proposed amendments to 19 TAC §89.1095 and proposed new §89.1096,
relating to dual enrollment. Section 89.1095, proposed to expire on June 30,
2001, required school districts to serve students with disabilities placed
in private schools by their parents if the student was dually enrolled in
the school district and private school. The amended federal law limits the
service that schools and states are obligated to provide to students placed
in private schools by their parents. Proposed new §89.1096, proposed
for implementation beginning July 1, 2001, addresses these federal regulations.
Also, in order to conform to new provisions in IDEA and to promote effective
and efficient determination of disputes arising under IDEA, changes to procedural
rules are proposed in new §§89.1150, 89.1151, 89.1165, 89.1170,
89.1180, 89.1185, and 89.1191 pertaining to due process hearings on students
with disabilities. In addition to the changes in federal law, the Texas Education
Code (TEC) was amended during the legislative session in 1999 to require the
commissioner to adopt rules relating to surrogate and foster parents and the
transfer of assistive technology devices. As a result of these amendments
to state statute, new 19 TAC §89.1047 and §89.1056 are proposed
to reflect legislative intent.
Additional changes include: the restructuring of the age ranges and graduation
requirements in 19 TAC §89.1035 and §89.1070 to more closely align
with federal regulation; the restructuring of the eligible criteria in 19
TAC §89.1040 to more closely align with federal regulation; the addition
of 19 TAC §89.1049 pertaining to parental rights regarding adult students;
and the alignment of 19 TAC §89.1050 with federal statute and regulation
pertaining to discipline and the attendance of the regular teachers at the
admission, review, and dismissal (ARD) committee. Also proposed is the inclusion
of requirements from 34 Code of Federal Regulations (CFR), §§99.30-99.37,
in 19 TAC §89.1050(f), relating to the disclosure of personally identifiable
information from education records specific to transfer students. New language
is also proposed in 19 TAC §89.1050(h)(1) that clarifies that a district
may recess an ARD committee for reasons other than a disagreement of the parent.
The proposed repeal of and new 19 TAC §89.1070 provide reorganization
of existing language as well as alignment with federal and state laws. New
19 TAC §89.1076 is proposed relating to interventions and sanctions.
As a result of TEC, §30.057, a new subsection (d) is proposed in 19 TAC §89.1085,
relating to admission to the Texas School for the Deaf.
Also, 19 TAC §89.1105, pertaining to the memorandum of understanding
relating to school-age residents of intermediate care facilities, is proposed
for repeal because the section expired August 1997. Current 19 TAC §89.1115,
pertaining to residential care facilities, includes intermediate care facilities.
Subsection (d) of 19 TAC §89.1131, relating to the use of teacher assistants,
also expired August 1997 and is proposed for repeal. Additional changes to §89.1131
include the addition of the eligibility category of deaf-blind to 19 TAC §89.1131
to ensure that appropriately certified personnel are in attendance at ARD
committee meetings for students who are deaf-blind. Changes are proposed to
other sections in order to reflect amended and new federal and state regulations
and to provide structure and formatting consistency.
Carol Francois, associate commissioner for education of special populations,
has determined that for the first five-year period the sections are in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the sections.
Ms. Francois and Criss Cloudt, associate commissioner for policy planning
and research, have determined that for each year of the first five years the
sections are in effect the public benefit anticipated as a result of enforcing
the sections will be a consistent linkage to the IDEA Amendments of 1997 and
its implementing regulations and a specific reference for school districts
to the new federal requirements that provide for the education of students
with disabilities. There will be no effect on small businesses. There is no
anticipated economic cost to persons who are required to comply with the sections
as proposed.
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning
and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701.
Comments may also be submitted electronically to
rules@tmail.tea.state.tx.us.
All requests for a public hearing on the
proposed sections 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 sections has been published in the
1.
GENERAL PROVISIONS
19 TAC §89.1001
The amendment is proposed under 34 Code of Federal Regulations, §300.600,
which outlines the responsibilities of TEA for all educational programs; and
Texas Education Code, §§29.001, 29.003, 29.005, 29.015, 30.0015,
and 30.057, which authorizes the commissioner of education to adopt rules
related to delivering special education services.
The amendment implements 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, 29.005, 29.015, 30.0015, and 30.057.
§89.1001.Scope and Applicability.
(a)
Special education services shall be provided to eligible
students in accordance with all applicable federal law and regulations, state
statutes, rules of the State Board of Education (SBOE) and commissioner of
education, and the State Plan Under Part B of the Individuals with Disabilities
Education Act (IDEA).
(b)
Education programs, under the direction and control of
the Texas Youth Commission, Texas School for the Blind and Visually Impaired,
Texas School for the Deaf, and schools within the Texas Department of Criminal
Justice shall comply with state and federal law and regulations concerning
the delivery of special education and related services to eligible students
and shall be monitored by the Texas Education Agency in accordance with the
requirements identified in subsection (a) of this section.
(c)
A school district having a residential [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on August 7, 2000.
TRD-200005454
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
19 TAC §§89.1011, 89.1015, 89.1035, 89.1040, 89.1045, 89.1047, 89.1049, 89.1050, 89.1055, 89.1056, 89.1060, 89.1065, 89.1070, 89.1075, 89.1076, 89.1085, 89.1090, 89.1095, 89.1096
The amendments and new sections are proposed under 34 Code
of Federal Regulations, §300.600, which outlines the responsibilities
of TEA for all educational programs; and Texas Education Code, §§29.001,
29.003, 29.005, 29.015, 30.0015, and 30.057, which authorizes the commissioner
of education to adopt rules related to delivering special education services.
The amendment implements 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, 29.005, 29.015, 30.0015, and 30.057.
§89.1011.Referral for Full and Individual Initial Evaluation [
Referral of students for
a full and individual initial evaluation
for
possible special education services shall be a part of the district's
overall, regular education referral or screening system. Prior to referral,
students experiencing difficulty in the regular classroom should be considered
for all support services available to all students, such as tutorial, remedial,
compensatory, and other services. This referral for
a full and individual
initial evaluation
[
§89.1015.Time Line for All Notices.
"Reasonable time" required for the written notice to parents under
34 Code of Federal Regulations (CFR),
§300.503
[
§89.1035.Age Ranges for Student Eligibility.
(a)
Pursuant to state and federal law, services provided in
accordance with this subchapter shall be available to all eligible students
ages 3-21. Services will be made available to eligible students
on their
third birthday.
Graduation with a regular high school diploma pursuant
to §89.1070 of this title (relating to Graduation Requirements) terminates
a student's eligibility to receive services in accordance with this subchapter.
An eligible
[
(b)
In accordance with the Texas Education Code (TEC), §§29.003,
30.002(a), and 30.081, a free, appropriate, public education shall be available
from birth to students with visual or auditory impairments.
§89.1040.Eligibility Criteria.
(a)
Special education services. To be eligible to receive special
education services, a student must be a "child with a disability," as defined
in 34 Code of Federal Regulations (CFR), §300.7(a), subject to the provisions
of 34 CFR, §300.7(c), the Texas Education Code (TEC), §29.003, and
this section. The provisions in this section specify criteria to be used in
determining whether a student's condition meets one or more of the definitions
in federal regulations or in state law.
(b)
Eligibility determination. The determination of whether
a student is eligible for special education and related services is made by
the student's admission, review, and dismissal (ARD) committee. Any evaluation
or re-evaluation of a student shall be conducted in accordance with 34 CFR, §§300.530-300.536.
The multidisciplinary team that collects or reviews evaluation data in connection
with the determination of a student's eligibility must include the following:
(1)
a licensed specialist in school psychology (LSSP), an educational
diagnostician, or other appropriately certified or licensed practitioner with
experience and training in the area of the disability, if the disability category
is autism, emotional disturbance, mental retardation, multiple disabilities,
a health impairment (if the underlying condition is attention deficit disorder
or attention deficit hyperactivity disorder), a learning disability, or a
traumatic brain injury; or
(2)
a licensed or certified professional for a specific eligibility
category defined in subsection (c) of this section.
(c)
Eligibility definitions.
(1)
Autism. A student with autism is one who has been determined
to meet the criteria for autism as stated in 34 CFR, §300.7(c)(1). Students
with pervasive developmental disorders are included under this category. The
team's written report of evaluation shall include specific recommendations
for behavioral interventions and strategies.
(2)
Deaf-blindness. A student with deaf-blindness is one who
has been determined to meet the criteria for deaf-blindness as stated in 34
CFR, §300.7(c)(2). In meeting the criteria stated in 34 CFR, §300.7(c)(2),
a student with deaf-blindness is one who, based on the evaluations specified
in subsections (d) and (m) of this section:
(A)
meets the eligibility criteria for auditory impairment
specified in subsection (c)(3) of this section and visual impairment specified
in subsection (c)(12) of this section;
(B)
meets the eligibility criteria for a student with a visual
impairment and has a suspected hearing loss that cannot be demonstrated conclusively,
but a speech/language therapist, a certified speech and language therapist,
or a licensed speech language pathologist indicates there is no speech at
an age when speech would normally be expected;
(C)
has documented hearing and visual losses that, if considered
individually, may not meet the requirements for auditory impairment or visual
impairment, but the combination of such losses adversely affects the student's
educational performance; or
(D)
has a documented medical diagnosis of a progressive medical
condition that will result in concomitant hearing and visual losses that,
without special education intervention, will adversely affect the student's
educational performance.
(3)
Auditory impairment. A student with an auditory impairment
is one who has been determined to meet the criteria for deafness as stated
in 34 CFR, §300.7(c)(3), or for hearing impairment as stated in 34 CFR, §300.7(c)(5).
The evaluation data reviewed by the multidisciplinary team in connection with
the determination of a student's eligibility based on an auditory impairment
must include an otological examination performed by an otologist or by a licensed
medical doctor, with documentation that an otologist is not reasonably available.
An audiological evaluation by a licensed audiologist shall also be conducted.
The evaluation data shall include a description of the implications of the
hearing loss for the student's hearing in a variety of circumstances with
or without recommended amplification.
(4)
Emotional disturbance. A student with an emotional disturbance
is one who has been determined to meet the criteria for emotional disturbance
as stated in 34 CFR, §300.7(c)(4). The written report of evaluation shall
include specific recommendations for behavioral supports and interventions.
(5)
Mental retardation. A student with mental retardation is
one who has been determined to meet the criteria for mental retardation as
stated in 34 CFR, §300.7(c)(6). In meeting the criteria stated in 34
CFR, §300.7(c)(6), a student with mental retardation is one who has been
determined to be functioning at two or more standard deviations below the
mean on individually administered scales of verbal ability, and either performance
or nonverbal ability, and who concurrently exhibits deficits in adaptive behavior.
(6)
Multiple disabilities.
(A)
A student with multiple disabilities is one who has been
determined to meet the criteria for multiple disabilities as stated in 34
CFR, §300.7(c)(7). In meeting the criteria stated in 34 CFR, §300.7(c)(7),
a student with multiple disabilities is one who has a combination of disabilities
defined in this section and who meets all of the following conditions:
(i)
the student's disability is expected to continue indefinitely;
and
(ii)
the disabilities severely impair performance in two or
more of the following areas:
(I)
psychomotor skills;
(II)
self-care skills;
(III)
communication;
(IV)
social and emotional development; or
(V)
cognition.
(B)
Students who have more than one of the disabilities defined
in this section but who do not meet the criteria in subparagraph (A) of this
paragraph shall not be classified or reported as having multiple disabilities.
(7)
Orthopedic impairment. A student with an orthopedic impairment
is one who has been determined to meet the criteria for orthopedic impairment
as stated in 34 CFR, §300.7(c)(8). The multidisciplinary team that collects
or reviews evaluation data in connection with the determination of a student's
eligibility based on an orthopedic impairment must include a licensed physician.
(8)
Other health impairment. A student with another health
impairment is one who has been determined to meet the criteria for other health
impairment as stated in 34 CFR, §300.7(c)(9). Except as provided in subsection
(b)(1) of this section, the multidisciplinary team that collects or reviews
evaluation data in connection with the determination of a student's eligibility
based on another health impairment must include a licensed physician.
(9)
Learning disability.
(A)
A student with a learning disability is one who has been
determined by a multidisciplinary team to meet the criteria for specific learning
disability as stated in 34 CFR, §300.7(c)(10), and in whom the team has
determined whether a severe discrepancy between achievement and intellectual
ability exists in accordance with the provisions in 34 CFR, §§300.540-300.543.
A severe discrepancy exists when the student's assessed intellectual ability
is above the mentally retarded range, but the student's assessed educational
achievement in areas specified in 34 CFR, §300.541, is more than one
standard deviation below the student's intellectual ability.
(B)
If the multidisciplinary team cannot establish the existence
of a severe discrepancy in accordance with subparagraph (A) of this paragraph
because of the lack of appropriate evaluation instruments, or if the student
does not meet the criteria in subparagraph (A) of this paragraph but the team
believes a severe discrepancy exists, the team must document in its written
report the areas identified under subparagraph (A) of this paragraph and the
basis for determining that the student has a severe discrepancy. The report
shall include a statement of the degree of the discrepancy between intellectual
ability and achievement.
(10)
Speech impairment. A student with a speech impairment
is one who has been determined to meet the criteria for speech or language
impairment as stated in 34 CFR, §300.7(c)(11). The multidisciplinary
team that collects or reviews evaluation data in connection with the determination
of a student's eligibility based on a speech impairment must include a certified
speech and hearing therapist, a certified speech and language therapist, or
a licensed speech/language pathologist.
(11)
Traumatic brain injury. A student with a traumatic brain
injury is one who has been determined to meet the criteria for traumatic brain
injury as stated in 34 CFR, §300.7(c)(12). The multidisciplinary team
that collects or reviews evaluation data in connection with the determination
of a student's eligibility based on a traumatic brain injury must include
a licensed physician, in addition to the licensed or certified practitioners
specified in subsection (b)(1) of this section.
(12)
Visual impairment.
(A)
A student with a visual impairment is one who has been
determined to meet the criteria for visual impairment as stated in 34 CFR, §300.7(c)(13).
The visual loss should be stated in exact measures of visual field and corrected
visual acuity at a distance and at close range in each eye. The report should
also include prognosis whenever possible. If exact measures cannot be obtained,
the eye specialist must so state and provide best estimates. In meeting the
criteria stated in 34 CFR, §300.7(c)(13), a student with a visual impairment
is one who:
(i)
has been determined by a licensed ophthalmologist or optometrist:
(I)
to have no vision or to have a serious visual loss after
correction; or
(II)
to have a progressive medical condition that will result
in no vision or a serious visual loss after correction.
(ii)
has been determined by the following evaluations to have
a need for special services:
(I)
a functional vision evaluation by a professional certified
in the education of students with visual impairments or a certified orientation
and mobility instructor. The evaluation must include the performance of tasks
in a variety of environments requiring the use of both near and distance vision
and recommendations concerning the need for a clinical low vision evaluation
and an orientation and mobility evaluation; and
(II)
a learning media assessment by a professional certified
in the education of students with visual impairments. The learning media assessment
must include recommendations concerning which specific visual, tactual, and/or
auditory learning media are appropriate for the student and whether or not
there is a need for ongoing evaluation in this area.
(B)
A student with a visual impairment is functionally blind
if, based on the preceding evaluations, the student will use tactual media
(which includes Braille) as a primary tool for learning to be able to communicate
in both reading and writing at the same level of proficiency as other students
of comparable ability.
(13)
Noncategorical. A student aged 3-9 may be eligible for
special education and related services and reported using the term "noncategorical"
if the following criteria are met:
(A)
the student has been determined to meet the criteria for
mental retardation, emotional disturbance, a specific learning disability,
or autism; or
(B)
the student does not appear to meet the independent criteria
for eligibility under the categories mental retardation, emotional disturbance,
a specific learning disability, or autism; however, the evaluation data establish
a belief that the student meets the eligibility requirements for one or more
of such categories.
§89.1045.Rights of Parents to Request Admission, Review, and Dismissal (ARD) Committee Meetings.
A parent may request that the school district convene an admission,
review, and dismissal (ARD) committee meeting at any mutually agreeable time
to address specific concerns that the parent may have about his or her child's
special education services. The school district must respond to the parent's
request for an ARD committee meeting within a reasonable period of time by
holding the requested meeting, addressing and resolving the parent's concerns
through an alternative process, or requesting assistance through the Texas
Education Agency's mediation process.
§89.1047.Procedures for Surrogate and Foster Parents.
(a)
An individual assigned to act as a surrogate parent for
a student with a disability, in accordance with 34 Code of Federal Regulations
(CFR), §300.515, relating to surrogate parents, must comply with the
requirements specified in Texas Education Code (TEC), §29.001(10).
(1)
Pursuant to TEC, §29.001(10)(A), an individual assigned
to act as a surrogate parent must complete a training program in which the
individual is provided with an explanation of the provisions of federal and
state laws, rules, and regulations relating to:
(A)
the identification of a student with a disability;
(B)
the collection of evaluation and re-evaluation data relating
to a student with a disability;
(C)
the admission, review, and dismissal (ARD) committee process;
(D)
the development of an individualized education program
(IEP) and, for a student who is at least 16 years of age, an individual transition
plan (ITP);
(E)
the determination of least restrictive environment;
(F)
the implementation of an IEP;
(G)
the procedural rights and safeguards available under 34
CFR, §§300.403, 300.500-300.529, 300.560-300.577, and 300.660-300.662,
relating to the issues described in 34 CFR, §300.504(b); and
(H)
the sources that the surrogate parent may contact to obtain
assistance in understanding the provisions of federal and state laws, rules,
and regulations relating to students with disabilities.
(2)
The training program described in subsection (a)(1) of
this section must be provided in the native language or other mode of communication
used by the individual who is to serve as a surrogate parent.
(3)
The individual assigned to act as a surrogate parent must
complete the training program described in subsection (a)(1) of this section
within 90 calendar days after the effective date of this rule or the date
of initial assignment as a surrogate parent, whichever comes later. Once an
individual has completed a training program conducted or provided by or through
the Texas Department of Protective and Regulatory Services (PRS), a school
district, an education service center, or any entity that receives federal
funds to provide Individuals with Disabilities Education Act (IDEA) training
to parents, the individual shall not be required by any school district to
complete additional training in order to continue serving as the student's
surrogate parent or to serve as the surrogate parent for other students with
disabilities. School districts may provide ongoing or additional training
to surrogate parents and/or parents; however, a district cannot deny an individual
who has received the training as described in subsection (a)(1) of this section
from serving as a surrogate parent on the grounds that the individual has
not been trained.
(4)
A school district shall provide, or arrange for the provision
of, the training program described in subsection (a)(1) of this section, within
90 calendar days after the effective date of this rule for individuals serving
as surrogate parents as of the effective date of this rule. Thereafter, a
school district should provide or arrange for the provision of the training
program described in subsection (a)(1) prior to assigning an individual to
act as a surrogate parent but no later than 90 calendar days after assignment.
(b)
A foster parent may act as a parent of a child with a disability,
in accordance with 34 CFR, §300.20, relating to the definition of parent,
if he/she complies with the requirements of TEC, §29.015(b), relating
to foster parents, including the completion of the training program described
in subsection(a)(1) of this section.
(1)
The foster parent must complete the training program described
in subsection (a)(1) of this section within 90 calendar days after the effective
date of this rule or the date of initial assignment as the parent, whichever
comes later. Once a foster parent has completed a training program conducted
or provided by the PRS, a school district, an education service center, or
any entity that receives federal funds to provide IDEA training to parents,
the foster parent shall not be required by any school district to complete
additional training in order to continue serving as his/her child's surrogate
parent or parent or to serve as the surrogate parent or parent for other students
with disabilities. School districts may provide ongoing or additional training
to foster parents and/or parents; however, a district cannot deny an individual
who has received the training as described in subsection (a)(1) of this section
from serving as the parent on the grounds that the individual has not been
trained.
(2)
A school district shall provide, or arrange for the provision
of, the training program described in subsection (a)(1) of this section, within
90 calendar days after the effective date of this rule for foster parents
who are serving as parents as of the effective date of this rule. Thereafter,
a school district should provide or arrange for the provision of the training
program described in subsection (a)(1) prior to assigning a foster parent
to act as a parent but no later than 90 calendar days after assignment.
(c)
Each school district or shared services arrangement shall
develop and implement procedures for conducting an analysis of whether a foster
parent or potential surrogate parent has an interest that conflicts with the
interests of his/her child. A foster parent in a home which is verified by
the PRS or a child-placing agency shall not be deemed to have a financial
conflict of interest by virtue of serving as the foster parent in that home.
These homes include, but are not limited to, basic, habilitative, primary
medical, or therapeutic foster or foster group homes. In addition, issues
concerning quality of care of the child do not constitute a conflict of interest.
Concerns regarding quality of care of the child should be communicated, and
may be statutorily required to be reported, to PRS.
(d)
If a school district denies a foster parent the right to
serve as a surrogate parent or parent, the school district must provide the
foster parent with written notice of such denial within seven calendar days
after the date on which the decision is made. The written notice shall:
(1)
specify the reason(s) the foster parent is being denied
the right to serve as the surrogate parent or parent (the notice must specifically
explain the interests of the foster parent that conflict with the interests
of his/her child); and
(2)
inform the foster parent of his/her right to file a complaint
with the Texas Education Agency in accordance with 34 CFR, §§300.660-300.662,
relating to complaint procedures.
§89.1049.Parental Rights Regarding Adult Students.
The Individuals with Disabilities Education Act (IDEA) and applicable
federal regulations provide that a state may provide that when a student with
a disability reaches the age of 18, the rights accorded to the student's parent
under IDEA, Part B, transfer to the student. Current law in Texas does not
appear to address the transfer of parental rights under IDEA to an adult student.
Therefore, unless parental rights have been terminated by judicial decree,
parental rights under IDEA shall remain with the parent of a student with
a disability even after the student is 18 years of age.
§89.1050.The Admission, Review, and Dismissal (ARD) Committee.
(a)
Each school district shall establish an admission, review,
and dismissal (ARD) committee for each eligible student with a disability
and for each student for whom a full and individual initial evaluation is
conducted pursuant to §89.1011 of this title (relating to Referral for
Full and Individual Initial Evaluation). The ARD committee shall be the individualized
education program (IEP) team defined in federal law and regulations, including,
specifically, 34 Code of Federal Regulations (CFR), §300.344. The ARD
committee shall be responsible for all of the functions for which the IEP
team is responsible under federal law and regulations and for which the ARD
committee is responsible under state law, including, specifically, the following:
(1)
34 CFR, §§300.340-300.349, and Texas Education
Code (TEC), §29.005 (Individualized Education Program);
(2)
34 CFR, §§300.400-300.402 (relating to placement
of eligible students in private schools by a school district);
(3)
34 CFR, §§300.452, 300.455, and 300.456 (relating
to the development and implementation of service plans for eligible students
in private school who have been designated to receive special education and
related services);
(4)
34 CFR, §§300.520, 300.522, and 300.523, and
TEC, §37.004 (Placement of Students with Disabilities);
(5)
34 CFR, §§300.532-300.536 (relating to evaluations,
re-evaluations, and determination of eligibility);
(6)
34 CFR, §§300.550-300.553 (relating to least
restrictive environment);
(7)
TEC, §28.006 (Reading Diagnosis);
(8)
TEC, §28.0211 (Satisfactory Performance on Assessment
Instruments Required; Accelerated Instruction);
(9)
TEC, Chapter 29, Subchapter I (Programs for Students Who
Are Deaf or Hard of Hearing);
(10)
TEC, §30.002 (Education of Children with Visual Impairments);
(11)
TEC, §30.003 (Support of Students Enrolled in the
Texas School for the Blind and Visually Impaired or Texas School for the Deaf);
(12)
TEC, §33.081 (Extracurricular Activities);
(13)
TEC, Chapter 39, Subchapter B (Assessment of Academic
Skills); and
(14)
TEC, §42.151 (Special Education).
(b)
For a child from birth through two years of age with visual
and/or auditory impairments, an individualized family services plan (IFSP)
meeting must be held in place of an ARD committee meeting in accordance with
34 CFR, §§303.340-303.346, and the memorandum of understanding between
the Texas Education Agency (TEA) and Texas Interagency Council on Early Childhood
Intervention.
(c)
The special education teacher or special education provider
that participates in the ARD committee meeting in accordance with 34 CFR, §300.344(a)(3),
must be certified in the child's suspected areas of disability. When a specific
certification is not required to serve certain disability categories, then
the special education teacher or special education provider must be qualified
to provide the educational services that the child may need. Districts should
refer to §89.1131 of this title (relating to Qualifications of Special
Education, Related Service, and Paraprofessional Personnel) to ensure that
appropriate teachers and/or service providers are present and participate
at each ARD committee meeting.
(d)
The ARD committee shall make its decisions regarding students
referred for a full and individual initial evaluation within 30 calendar days
from the date of the completion of the written full and individual initial
evaluation report. If the 30th day falls during the summer and school is not
in session, the ARD committee shall have until the first day of classes in
the fall to finalize decisions concerning placement and the IEP, unless the
full and individual initial evaluation indicates that the student will need
extended year services during that summer.
(e)
The written report of the ARD committee shall document
the decisions of the committee with respect to issues discussed at the meeting.
The report shall include the date, names, positions, and signatures of the
members participating in each meeting in accordance with 34 CFR, §§300.344,
300.345, 300.348, and 300.349. The report shall also indicate each member's
agreement or disagreement with the committee's decisions. In the event TEC, §29.005(d),
applies, the district shall provide a written or audiotaped copy of the student's
IEP, as defined in 34 CFR, §300.346 and §300.347.
(f)
For a student who is new to a school district, the ARD
committee may meet when the student enrolls and the parents verify that the
student was receiving special education services in the previous school district,
or the previous school district verifies in writing or by telephone that the
student was receiving special education services. Special education services
that are provided prior to receipt of valid evaluation data from the previous
school district or collection of new evaluation data are temporary and contingent
upon either receipt of valid evaluation data from the previous school district
or the collection of new evaluation data. In any event, an ARD committee meeting
must be held within 30 school days from the date of the student's enrollment
in the district to finalize or develop an IEP based on the evaluation data.
The student's current and previous school districts are not required to obtain
parental consent before requesting or sending the student's special education
records if the disclosure is conducted in accordance with 34 CFR, §99.31(a)(2)
and §99.34. In accordance with TEC, §25.002, the school district
in which the student was previously enrolled shall furnish the new school
district with a copy of the student's records, including the child's special
education records, not later than the 30th calendar day after the student
was enrolled in the new school district.
(g)
All disciplinary actions regarding students with disabilities
shall be determined in accordance with 34 CFR, §§300.121 and 300.519-300.529
(relating to disciplinary actions and procedures) and the TEC, Chapter 37,
Subchapter A (Alternative Settings for Behavior Management).
(h)
All members of the ARD committee shall have the opportunity
to participate in a collaborative manner in developing the IEP. A decision
of the committee concerning required elements of the IEP shall be made by
mutual agreement of the required members if possible. The committee may agree
to an annual IEP or an IEP of shorter duration.
(1)
When mutual agreement about all required elements of the
IEP is not achieved, the party (the parents or adult student) who disagrees
shall be offered a single opportunity to have the committee recess for a period
of time not to exceed ten school days. This recess is not required when the
student's presence on the campus presents a danger of physical harm to the
student or others or when the student has committed an expellable offense
or an offense which may lead to a placement in an alternative education program
(AEP). The requirements of this subsection (h) do not prohibit the members
of the ARD committee from recessing an ARD committee meeting for reasons other
than the failure of the parents and the school district from reaching mutual
agreement about all required elements of an IEP.
(2)
During the recess the committee members shall consider
alternatives, gather additional data, prepare further documentation, and/or
obtain additional resource persons which may assist in enabling the ARD committee
to reach mutual agreement.
(3)
The date, time, and place for continuing the ARD committee
meeting shall be determined by mutual agreement prior to the recess.
(4)
If a ten-day recess is implemented as provided in paragraph
(1) of this subsection and the ARD committee still cannot reach mutual agreement,
the district shall implement the IEP which it has determined to be appropriate
for the student.
(5)
When mutual agreement is not reached, a written statement
of the basis for the disagreement shall be included in the IEP. The members
who disagree shall be offered the opportunity to write their own statements.
(6)
When a district implements an IEP with which the parents
disagree or the adult student disagrees, the district shall provide prior
written notice to the parents or adult student as required in 34 CFR, §300.503.
(7)
Parents shall have the right to file a complaint, request
mediation, or request a due process hearing at any point when they disagree
with decisions of the ARD committee.
§89.1055.Content of the Individualized Education Program [
(a)
The
individualized education program
[
[
information to allow for determining
the student's eligibility for participation in extracurricular activities;]
[
a statement addressing nonexemption,
modification/accommodation, or exemption from some or all of the basic skills
assessment instruments, as appropriate. Modifications/accommodation of regular
classroom procedures which are provided for students by the local district
as specified in the student's IEP shall be provided during the testing process
in accordance with §101.3 of this title (relating to Testing Accommodations
and Exemptions); and]
[
goals and objectives shall
be specified if extended year services are included in the IEP.]
(b)
If the ARD committee determines
that the student is in need of extended school year (ESY) services, as described
in §89.1065 of this title (relating to Extended School Year Services
(ESY Services)), then the IEP must also include goals and objectives for ESY
services.
(c)
[
(d)
[
(1)
extended educational programming;
(2)
daily schedules reflecting minimal unstructured time;
(3)
in-home training or viable alternatives;
(4)
prioritized behavioral objectives;
(5)
prevocational and vocational needs of students 12 years
of age or older;
(6)
parent training; and
(7)
suitable staff-to-students ratio.
(e)
[
§89.1056.Transfer of Assistive Technology Devices.
(a)
Unless otherwise specifically defined in this section,
the terms used in this section shall have the meanings ascribed to such terms
in Texas Education Code (TEC), §30.0015, (Transfer of Assistive Technology
Devices).
(b)
A transfer of an assistive technology device (ATD) pursuant
to TEC, §30.0015, shall be in accordance with a transfer agreement which
incorporates the standards described in TEC, §30.0015(c), and which includes,
specifically, the following.
(1)
The transferor and transferee must represent and agree
that the terms of the transfer are based on the fair market value of the ATD,
determined in accordance with generally accepted accounting principles.
(2)
The informed consent of the parent of the student with
a disability for whom the ATD is being transferred must be obtained before
the transfer of an ATD pursuant to TEC, §30.0015. The procedures employed
by a school district in obtaining such informed consent shall be consistent
with the procedures employed by the district to obtain parental consent under
34 Code of Federal Regulations (CFR), §300.505. If the student has the
legal capacity to enter into a contract, the informed consent may be obtained
from the student. Consistent with 34 CFR, §300.505(c), informed parental
or adult student consent need not be obtained if the school district can demonstrate
that it has taken reasonable measures to obtain that consent, and the student's
parent or the adult student has failed to respond. To meet the reasonable
measures requirement, the school district must use procedures consistent with
those described in 34 CFR, §300.345(d).
(3)
If the transfer is a sale, then the sale of the ATD shall
be evidenced by a "Uniform Transfer Agreement" (UTA) which includes the following:
(A)
the names of the transferor and the transferee (which may
be any individual or entity identified in TEC, §30.0015(b));
(B)
the date of the transfer;
(C)
a description of the ATD being transferred;
(D)
the terms of the transfer (including the transfer of warranties,
to the extent applicable); and
(E)
the signatures of authorized representatives of both the
transferor and the transferee.
(c)
The Texas Education Agency shall annually disseminate to
school districts the standards for a school district's transfer of an ATD
pursuant to TEC, §30.0015.
(d)
Nothing in this section or in TEC, §30.0015, shall:
(1)
alter any existing obligation under federal or state law
to provide ATDs to students with disabilities;
(2)
require a school district to transfer an ATD to any person
or entity;
(3)
limit a school district's right to sell, lease, loan, or
otherwise convey or dispose of property as authorized by federal or state
laws, rules, or regulations; or
(4)
authorize any transfer of an ATD that is inconsistent with
any restriction on transferability imposed by the manufacturer or developer
of the ATD or applicable federal or state laws, rules, or regulations.
§89.1060.Definitions of Certain Related Services.
In addition to the specific related services defined in 34 Code of
Federal Regulations (CFR), §300.24, related services include interpreting
services for students who are deaf. Interpreting services include interpreting/transliterating
receptively and expressively for persons who are deaf or hard of hearing.
§89.1065.Extended School Year Services (ESY Services) [
Extended
school
year
(ESY)
services [
(1)
The need for
ESY services
[
(A)
limit ESY services to particular
categories of disability; or
(B)
unilaterally limit the type,
amount, or duration of ESY services.
(2)
The need for
ESY services
[
(3)
The reasonable [
(4)
A skill is critical when the loss of that skill results,
or is reasonably expected to result, in any of the following [
(A)
placement in a more restrictive instructional arrangement;
(B)
significant loss of skills
necessary for the student to appropriately progress in the general curriculum
and appropriately advance toward achieving the goals set out in the student's
IEP;
(C)
[
(D)
[
(E)
[
(5)
If the district does not propose
ESY services
[
(6)
If a student for whom
ESY services were
[
(7)
For students enrolling in a district during the school
year, information
obtained
from the prior school district as well
as information collected during the current year may be used to determine
the need for
ESY services
[
(8)
The provision of
ESY services
[
(9)
Districts are not eligible for reimbursement for
ESY services
[
§89.1070.Graduation Requirements.
(a)
Graduation with a regular high school diploma terminates
a student's eligibility for special education services under this subchapter
and Part B of the Individuals with Disabilities Education Act (IDEA), 20 United
States Code, §§14.01 et seq. In addition, as provided in Texas Education
Code (TEC), §42.003(a), graduation with a regular high school diploma
terminates a student's entitlement to the benefits of the Foundation School
Program.
(b)
A student receiving special education services may graduate
and be awarded a high school diploma only if:
(1)
the student has satisfactorily completed the minimum academic
credit requirements for graduation applicable to students in regular education,
including satisfactory performance on the exit level assessment instrument;
or
(2)
the student's admission, review, and dismissal (ARD) committee
has determined that the student has successfully completed the student's individualized
education program (IEP), including the district's minimum credit requirements
for students without disabilities. Successful completion of an IEP occurs
when one of the following conditions has been met:
(A)
full-time employment, based on the student's abilities
and local employment opportunities, in addition to sufficient self-help skills
to enable the student to maintain the employment without direct and ongoing
educational support of the local school district;
(B)
demonstrated mastery of specific employability skills and
self-help skills which do not require direct ongoing educational support of
the local school district; or
(C)
access to services which are not within the legal responsibility
of public education, or employment or educational options for which the student
has been prepared by the academic program.
(c)
When considering graduation under subsection (b)(2) of
this section, the ARD committee shall, when appropriate, seek in writing and
consider written recommendations from appropriate adult service agencies and
the views of the parent and, when appropriate, the student.
(d)
Employability and self-help skills referenced under subsection
(b)(2) of this section are those skills directly related to the preparation
of students for employment, including general skills necessary to obtain or
retain employment.
(e)
Students with disabilities who are eligible to take the
exit level assessment instrument but have not performed satisfactorily are
eligible for instruction in accordance with the TEC, §39.024.
(f)
A school district may award a certificate, or some other
type of credential, to a student who has not met the requirement of subsection
(b) of this section and who is therefore not eligible to graduate and receive
a high school diploma. A school district may allow a student who receives
a certificate, or some other type of credential, to participate in a graduation
ceremony with students receiving high school diplomas. Receipt of a certificate
or other type of credential does not terminate a student's eligibility for
special education services under this subchapter and IDEA, Part B, nor does
it terminate a student's entitlement to the benefits of the Foundation School
Program under TEC, §42.003(a).
§89.1075.General Program Requirements and Local District Procedures.
(a)
Each school district shall maintain an eligibility folder
for
[
(b)
For school districts providing special education services
to students with visual impairments, there shall be written procedures as
required in the Texas Education Code (TEC), §30.002(c)(10).
[
Each school district shall
provide parents of students receiving special education services written reports
of the students' progress on the same timely basis as the reports provided
to students in regular education.]
(c)
[
(d)
[
(e)
School districts that jointly
operate their special education programs as a shared services arrangement,
in accordance with TEC, §29.007, shall do so in accordance with procedures
developed by the Texas Education Agency (TEA).
(f)
School districts that contract
for services from non-public day schools shall do so in accordance with 34
Code of Federal Regulations, §300.402, and procedures developed by the
TEA.
§89.1076.Interventions and Sanctions.
The Texas Education Agency (TEA) shall establish and implement a system
of interventions and sanctions, in accordance with the Individuals with Disabilities
Education Act, 20 USC, §§1400 et seq., Texas Education Code (TEC), §29.010,
and TEC, Chapter 39, as necessary to ensure compliance with federal and state
requirements regarding the implementation of special education and related
services. In accordance with TEC, §39.131(a), the TEA may combine any
intervention and sanction. The system of interventions and sanctions will
include, but not be limited to, the following:
(1)
on-site review for failure to meet compliance requirements;
(2)
required fiscal audit of specific program(s) and/or of
the district, paid for by the district;
(3)
required submission of corrective action(s), including
compensatory services, paid for by the district;
(4)
required technical assistance from the education service
center, paid for by the district;
(5)
public release of compliance review findings;
(6)
special investigation and/or follow-up verification visits;
(7)
required public hearing conducted by the local school board
of trustees;
(8)
assignment of a special purpose monitor, master, or management
team, paid for by the district;
(9)
hearing before the commissioner of education or designee;
(10)
reduction in payment or withholding of funds; and/or
(11)
lowering of the special education compliance status and/or
the accreditation rating of the district.
§89.1085.Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services.
(a)
A student's admission, review, and dismissal (ARD) committee
may place the student at the Texas School for the Blind and Visually Impaired
(TSBVI) or the Texas School for the Deaf (TSD) in accordance with the provisions
of 34 Code of Federal Regulations (CFR), Part 300, the Texas Education Code
(TEC), including, specifically, §§30.021, 30.051, and 30.057, and
the applicable rules of this subchapter.
(b)
In the event that a student is placed by his or her ARD
committee at either the TSBVI or the TSD, the student's "resident school district,"
as defined in subsection (e) of this section, shall be responsible for assuring
that a free appropriate public education (FAPE) is provided to the student
at the TSBVI or the TSD, as applicable, in accordance with the Individuals
with Disabilities Education Act (IDEA), 20 United States Code (USC), §§1400
et seq., 34 CFR, Part 300, state statutes, and rules of the State Board of
Education (SBOE) and the commissioner of education. If representatives of
the resident school district and representatives of the TSBVI or the TSD disagree,
as members of a student's ARD committee, with respect to a recommendation
by one or more members of the student's ARD committee that the student be
evaluated for placement, initially placed, or continued to be placed at the
TSBVI or TSD, as applicable, the representatives of the resident school district
and the TSBVI or TSD, as applicable, may seek resolution through the mediation
procedures adopted by the Texas Education Agency or through any due process
hearing to which the resident school district or the TSBVI or the TSD are
entitled under the IDEA, 20 USC, §§1401, et seq.
(c)
When a student's ARD committee places the student at the
TSBVI or the TSD, the student's resident school district shall comply with
the following requirements.
(1)
For each student, the resident school district shall list
those services in the student's individualized education program (IEP) which
the district cannot appropriately provide in a local program and which the
TSBVI or the TSD can appropriately provide.
(2)
The district may make an on-site visit to verify that the
TSBVI or the TSD can and will offer the services listed in the individual
student's IEP and to ensure that the school offers an appropriate educational
program for the student.
(3)
For each student, the resident school district shall include
in the student's IEP the criteria and estimated time lines for returning the
student to the resident school district.
(d)
In addition to the provisions of subsections (a)-(c) of
this section, and as provided in TEC, §30.057, the TSD shall provide
services in accordance with TEC, §30.051, to any eligible student with
a disability for whom the TSD is an appropriate placement if the student has
been referred for admission by the student's parent or legal guardian, a person
with legal authority to act in place of the parent or legal guardian, or the
student, if the student is age 18 or older, at any time during the school
year if the referring person chooses the TSD as the appropriate placement
for the student rather than placement in the student's resident school district
or regional program determined by the student's ARD committee. For students
placed at the TSD pursuant to this subsection, the TSD shall be responsible
for assuring that a FAPE is provided to the student at the TSD, in accordance
with IDEA, 20 USC, §§1401 et seq., 34 CFR, Part 300, state statutes,
and rules of the SBOE and the commissioner of education.
(e)
For purposes of this section and §89.1090 of this
title (relating to Transportation of Students Placed in a Residential Setting,
Including the Texas School for the Blind and Visually Impaired and the Texas
School for the Deaf), the "resident school district" is the school district
in which the student would be enrolled under TEC, §25.001, if the student
were not placed at the TSBVI or the TSD.
§89.1090.Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.
For
each student
[
§89.1095.Provision of Services for Students Placed by their [
(a)
This section will expire on
June 30, 2001, and shall be superseded by §89.1096 of this title (relating
to Provision of Services for Students Placed by their Parents in Private Schools
or Facilities), beginning July 1, 2001.
(b)
[
(c)
[
(d)
[
(e)
[
(f)
[
(g)
[
(1)
enroll the student for at least four consecutive hours
per day and count the student eligible for full state average daily attendance
(ADA), for contact hours based on the instructional arrangement in which
the student is served, and for full federal funding;
(2)
enroll the student for at least two consecutive hours per
day and count the student eligible for one-half state ADA, for contact hours
based on the instructional arrangement in which the student is served, and
for full federal funding; or
(3)
enroll the student for any amount of time needed less than
two hours per day and count the student eligible for full federal funding,
but not for state ADA and for contact hours.
(h)
[
(i)
[
(j)
[
§89.1096.Provision of Services for Students Placed by their Parents in Private Schools or Facilities.
(a)
The provisions of this section shall be implemented beginning
July 1, 2001, and at that time shall supersede §89.1095 of this title
(relating to Provision of Services for Students Placed by their Parents in
Private Schools).
(b)
Except as specifically provided in this section, in accordance
with 34 Code of Federal Regulations (CFR), §300.454, no eligible student
who has been placed by his or her parent(s) in a private school or facility
has an individual right to receive some or all of the special education and
related services that the student would receive if he or she were enrolled
in a public school district. Except as specifically set forth in this section,
a school district's obligations with respect to students placed by their parents
in private schools are governed by 34 CFR, §§300.450-300.462.
(c)
When a student with a disability who has been placed by
his or her parents directly in a private school or facility is referred to
the local school district, the local district shall convene an admission,
review, and dismissal (ARD) committee meeting to determine whether the district
can offer the student a free appropriate public education (FAPE). If the district
determines that it can offer a FAPE to the student, the district is not responsible
for providing educational services to the student, except as provided in 34
CFR, §§300.450-300.462 or subsection (d) of this section, until
such time as the parents choose to enroll the student in public school full-time.
(d)
Parents of an eligible student ages 3 or 4 shall have the
right to "dual enroll" their student in both the public school and the private
school beginning on the student's third birthday and continuing until the
end of the school year in which the student turns five, subject to the following.
(1)
The student's ARD committee shall develop an individualized
education program (IEP) designed to provide the student with a FAPE in the
least restrictive environment appropriate for the student.
(2)
From the IEP, the parent and the district shall determine
which special education and/or related services will be provided to the student
and the location where those services will be provided, based on the requirements
concerning placement in the least restrictive environment set forth in 34
CFR, §§300.550-300.553, and the policies and procedures of the district.
(3)
For students served under the provisions of this subsection,
the school district shall be responsible for the employment and supervision
of the personnel providing the service, providing the needed instructional
materials, and maintaining pupil accounting records. Materials and services
provided shall be consistent with those provided for students enrolled only
in the public school and shall remain the property of the school district.
(e)
The school district shall provide special transportation
with federal funds only when the ARD committee determines that the condition
of the student warrants the service in order for the student to receive the
special education and related services (if any) set forth in the IEP.
(f)
Complaints regarding the implementation of the components
of the student's IEP that have been selected by the parent and the district
under subsection (d) of this section may be filed with the Texas Education
Agency under the procedures in 34 CFR, §§300.660-300.662. The procedures
in 34 CFR, §§300.504-300.515 (relating to due process hearings)
do not apply to complaints regarding the implementation of the components
of the student's IEP that have been selected by the parent and the district
under subsection (d).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on August 7, 2000.
TRD-200005455
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
19 TAC §§89.1020, 89.1025, 89.1030, 89.1040, 89.1045, 89.1050, 89.1060, 89.1070, 89.1085, 89.1105
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Education Agency or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under 34 Code of Federal
Regulations, §300.600, which outlines the responsibilities of TEA for
all educational programs; and Texas Education Code, §§29.001, 29.003,
29.005, 29.015, 30.0015, and 30.057, which authorizes the commissioner of
education to adopt rules related to delivering special education services.
The repeals implement 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, 29.005, 29.015, 30.0015, and 30.057.
§89.1020.Written Notice to Parent Before Assessment.
§89.1025.Consent for Assessment.
§89.1030.Comprehensive Individual Assessment.
§89.1040.Eligibility Criteria.
§89.1045.Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings.
§89.1050.The Admission, Review, and Dismissal (ARD) Committee.
§89.1060.Definitions of Certain Related Services.
§89.1070.Graduation Requirements.
§89.1085.Referral for Texas School for the Blind and Visually Impaired and Texas School for the Deaf Services.
§89.1105.Memorandum of Understanding Relating to School-Age Residents of Intermediate Care Facilities for the Mentally Retarded.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on August 7, 2000.
TRD-200005456
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
19 TAC §89.1121, §89.1125
The amendments are proposed under 34 Code of Federal Regulations, §300.600,
which outlines the responsibilities of TEA for all educational programs; and
Texas Education Code, §§29.001, 29.003, and 29.005, which authorizes
the commissioner of education to adopt rules related to delivering special
education services.
The amendments implement 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, and 29.005.
§89.1121.Distribution of State Funds.
(a)
Procedures for counting the average daily attendance (ADA)
of students receiving special education services in various instructional
settings shall be developed by the commissioner of education and included
in the daily register for pupil attendance accounting.
(b)
State special education funds shall be distributed to school
districts on the basis of ADA of full-time equivalents of eligible students
served in accordance with §129.21 of this title (relating to Requirements
for Student Attendance Accounting for State Funding Purposes).
(c)
The special education attendance shall be converted to
contact hours by instructional arrangement and then to full-time equivalents.
The full-time equivalent for each instructional arrangement is multiplied
by the school district's adjusted basic allotment and then multiplied by the
weight for the instructional arrangement as prescribed in the Texas Education
Code (TEC), §42.151(a). Contact hours for any one student receiving special
education services may not exceed six hours per day or 30 hours per week for
funding purposes. The total contact hours generated per week shall be divided
by 30 to determine the full-time equivalents. Special education full-time
equivalents generated shall be deducted from the school district's ADA for
purposes of the regular education allotment.
(d)
The receipt of special education funds shall be contingent
upon the operation of an approved comprehensive special education program
in accordance with state and federal laws and regulations. No district may
divert special education funds for other purposes, with the exception of administrative
costs as defined in Chapter 105, Subchapter B, of this title (relating to
Maximum Indirect Cost Allowable on Certain Foundation School Program Allotments).
Funds generated by full-time equivalents in one instructional arrangement
may be spent on the overall special education program and are not
limited
[
(e)
A special education fund balance may be carried over to
the next fiscal year
but
[
(f)
Students who are at least three, but younger than 22, years
of age on September 1 of the current scholastic year who participate in the
regional day school program for the deaf may be counted as part of the district's
ADA if they receive instruction from the basic program for at least 50% of
the school day.
(g)
Students from birth through age two with a visual or auditory
impairment or both who are provided services by the district according to
an individual family services plan (IFSP) shall be enrolled on the district
home or regional day school campus and shall be considered eligible for ADA
on the same basis as other students receiving special education services.
(h)
Funding for the mainstream special education instructional
arrangement shall be based on the average daily attendance of the students
in the arrangement multiplied by the adjusted basic allotment/adjusted allotment
(ABA/AA) and the 1.1 weight. The attendance shall not be converted to contact
hours/full-time equivalents as with the other instructional arrangements.
§89.1125.Allowable Expenditures of State Special Education Funds.
(a)
Persons paid from special education funds shall be assigned
to instructional or other duties in the special education program and/or to
provide support services to the regular education program in order for students
with disabilities to be included in the regular program. Support services
shall include, but not be limited to, collaborative planning, co-teaching,
small group instruction with special and regular education students, direct
instruction to special education students, or other support services determined
necessary by the admission, review, and dismissal (ARD) committee for an appropriate
program for the student with disabilities. Assignments may include duties
supportive to school operations equivalent to those assigned to regular education
personnel.
(b)
Personnel assigned to provide support services to the regular
education program as stated in subsection (a) of this section may be fully
funded from special education funds.
(c)
If personnel are assigned to special education on less
than a full-time basis, except as stated in subsection (a) of this section,
only that portion of time for which the personnel are assigned to students
with disabilities shall be paid from state special education funds.
(d)
State special education funds may be used for special materials,
supplies, and equipment which are directly related to the development and
implementation of
individualized education programs
[
(e)
State special education funds may be used to contract with
consultants to provide staff development, program planning and evaluation,
instructional services, assessments, and related services to students with
disabilities.
(f)
State special education funds may be used for transportation
only to and from residential placements. Prior to using federal funds for
transportation costs to and from a residential facility, a district must use
state or local funds based on actual expenses up to the state transportation
maximum for private transportation contracts.
(g)
State special education funds may be used to pay [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on August 7, 2000.
TRD-200005457
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
19 TAC §89.1131
The amendment is proposed under 34 Code of Federal Regulations, §300.600,
which outlines the responsibilities of TEA for all educational programs; and
Texas Education Code, §§29.001, 29.003, and 29.005, which authorizes
the commissioner of education to adopt rules related to delivering special
education services.
The amendment implements 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, and 29.005.
§89.1131.Qualifications of Special Education, Related Service, and Paraprofessional Personnel.
(a)
All special education and related service personnel shall
be certified, endorsed, or licensed in the area or areas of assignment in
accordance with 34 Code of Federal Regulations (CFR),
§300.23 and §300.136
[
(b)
A teacher who holds a special education certificate or
an endorsement may be assigned to any level of a basic special education instructional
program serving
eligible
students 3-21 years of age,
as defined
in §89.1035(a) of this title (relating to Age Ranges for Student Eligibility),
in accordance with the limitation of their certification, except for
the following.
(1)
Persons assigned to provide speech therapy instructional
services must hold a valid Texas Education Agency (TEA) certificate in speech
and hearing therapy or speech and language therapy, or a valid state license
as a
speech/language
[
(2)
Teachers holding only a special education endorsement for
early childhood education for children with disabilities shall be assigned
only to programs serving infants through Grade 6.
(3)
Teachers assigned full-time to teaching students who are
orthopedically impaired or other health impaired with the teaching station
in the home or a hospital shall not be required to hold a special education
certificate or endorsement as long as the personnel file contains an official
transcript indicating that the teacher has completed a three-semester-hour
survey course in the education of students with disabilities and three semester
hours directly related to teaching students with physical impairments or other
health impairments.
(4)
Teachers certified in the education of students with visual
impairments must be available to students
with visual impairments, including
deaf-blindness,
[
(5)
Teachers certified in the education of students with auditory
impairments must be available to students
with auditory impairments,
including deaf-blindness,
[
(6)
The following provisions apply to physical education.
(A)
When the ARD committee has made the
determination
[
(i)
special education instructional or related service personnel
who have the necessary skills and knowledge;
(ii)
physical education teachers;
(iii)
occupational therapists;
(iv)
physical therapists; or
(v)
occupational therapy assistants or physical therapy assistants
working under supervision in accordance with the standards of their profession.
(B)
When these services are provided by special education personnel,
the district must document that they have the necessary skills and knowledge.
Documentation may include, but need not be limited to, inservice records,
evidence of attendance at seminars or workshops, or transcripts of college
courses.
(7)
Teachers assigned full-time or part-time to instruction
of students from birth through age two with visual impairments
, including
deaf-blindness,
shall be certified in the education of students with
visual impairments. Teachers assigned full-time or part-time to instruction
of students from birth through age two who are deaf
, including deaf-blindness,
shall be certified in education for students who are deaf and severely
hard of hearing. Other certifications for serving these students shall require
prior approval from TEA.
(8)
Teachers with secondary certification with the generic
delivery system may be assigned to teach Grades 6-12 only.
(c)
Paraprofessional personnel may be assigned to work with
eligible students, special education teachers, and related service personnel.
Aides may also be assigned to assist students with special education transportation
,
[
(d)
Interpreting services for students
who are deaf shall be provided by an interpreter who is certified in the appropriate
language mode(s), if certification in such mode(s) is available. If certification
is available, the interpreter must be certified by the Registry of Interpreters
for the Deaf or the Texas Commission for the Deaf and Hard of Hearing, unless
the interpreter has been granted an emergency permit by the commissioner of
education to provide interpreting services for students who are deaf. The
commissioner shall consider applications for the issuance of an emergency
permit to provide interpreting services for students who are deaf on a case-by-case
basis in accordance with requirements set forth in 34 CFR, §300.136,
and standards and procedures established by the TEA. In no event will an emergency
permit allow an uncertified interpreter to provide interpreting services for
more than a total of three school years to students who are deaf.
[
This subsection will expire
August 31, 1997. An aide may be assigned to function as a teacher assistant
under the following conditions.]
[
Qualifications shall include all of the following:]
[
high school graduate or equivalent;]
[
30 semester hours of college credit with some
emphasis on child growth and development or related areas, or a minimum of
three years experience working directly with children or youth (as appropriate)
in instructional or child care facilities; and]
[
documented ongoing inservice or other staff
development activities related to the education of students with disabilities.]
[
Assignment of an aide as a teacher assistant
shall be for the following purposes:]
[
providing individualized instruction in an
environment other than the designated supervising teacher's classroom;]
[
reinforcing academic or developmental skills
requiring extensive repetition or drill and practice on skills which have
been previously taught by the supervising teacher; and]
[
assisting students in job training/employment
and community-based instructional programs.]
[
Supervision shall be by a certified special
education teacher who is directly responsible for the implementation of the
students' IEPs and evaluation of their progress. For teacher assistants operating
under paragraph (2)(A) and (B) of this subsection, supervision shall be for
a minimum of one hour per day during student instruction, in addition to the
time necessary for joint planning and preparation. For teacher assistants
operating under paragraph (2)(C) of this subsection, supervision shall be
for a minimum of one hour per day or five hours per week.]
[
Assignment shall be in one of the following:]
[
homebound;]
[
hospital class;]
[
self-contained classes listed in §89.63
of this title (relating to Instructional Arrangements and Settings);]
[
off home campus; or]
[
vocational adjustment class.]
(e)
Orientation and mobility instruction
shall be provided by a professional who holds at least a bachelor's degree
with a major in the field of orientation and mobility instruction and who
is certified by the Association for Education and Rehabilitation of the Blind
and Visually Impaired.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on August 7, 2000.
TRD-200005458
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
19 TAC §§89.1151, 89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185, 89.1190
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Education Agency or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under 34 Code of Federal
Regulations, §300.600, which outlines the responsibilities of TEA for
all educational programs; and Texas Education Code, §§29.001, 29.003,
and 29.005, which authorizes the commissioner of education to adopt rules
related to delivering special education services.
The repeals implement 34 CFR, §300.600; and Texas Education Code, §§29.001,
29.003, and 29.005.
§89.1151.Purpose.
§89.1155.Definitions.
§89.1160.Applicability.
§89.1165.Request for Hearing.
§89.1170.Impartial Hearing Officer.
§89.1175.Hearing Rights.
§89.1180.Prehearing Procedures.
§89.1185.Hearing.
§89.1190.Student's Status During Proceedings.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on August 7, 2000.
TRD-200005459
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: September 17, 2000
For further information, please call: (512) 463-9701
care and treatment
] facility that is licensed by appropriate state agencies and located
within the district's boundaries must provide special education and related
services to eligible students residing in the facility if the facility does
not have an education program.
2.
CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW Comprehensive Assessment ].
assessment
] may be initiated by school
personnel, the student's parents or legal guardian, or another person involved
in the education or care of the student.
§300.504
], is defined as at least five school days, unless the parents agree
otherwise.
A
] student receiving special education services
who is
21
[
younger than 22
] years of age on September
1 of a
school
[
scholastic
] year shall be eligible for
services through the end of that
school
[
scholastic
]
year or until graduation
with a regular high school diploma pursuant
to §89.1070 of this title
, whichever comes first.
Individual Educational Plan ] (IEP).
individual educational plan
] (IEP) developed by the admission, review,
and dismissal (ARD) committee for each student with a disability shall
comply with
[
include the following information in addition to
]
the requirements of 34 Code of Federal Regulations (CFR), §300.346
and §300.347
, and Part 300, Appendix
A.
[
C:
]
(1)
(2)
(3)
(b)
] For students with visual impairments,
from birth through 21 years of age, the IEP or individualized family services
plan (IFSP) shall also meet the requirements of Texas Education Code [
(TEC)
], §30.002(e).
(c)
] For students with autism/pervasive
developmental disorders, information about the following shall be considered
and, when needed, addressed in the IEP:
(d)
] If the ARD committee determines
that services are not needed in one or more of the areas specified in subsection
(d)(1)-(7)
[
(c)(1)-(7)
] of this section, the IEP must include
a statement to that effect and the basis upon which the determination was
made.
(EYS) ].
(EYS)
] are defined as individualized instructional programs beyond the regular
school year for
eligible
students
with disabilities
[
who are enrolled in a school district's special education program
].
EYS
] must
be determined on an individual student basis by the admission, review, and
dismissal (ARD) committee
in accordance with 34 Code of Federal Regulations
(CFR), §300.309, and the provisions of this section. In determining the
need for and in providing ESY services, a school district may not:
[
.
]
EYS
] must
be documented from formal and/or informal evaluations provided by the district
or the parents. The documentation shall demonstrate that in one or more critical
areas addressed in the current
individualized education program
[
individual educational plan
] (IEP) objectives, the student has
exhibited, or reasonably may be expected to exhibit, severe or substantial
regression that cannot be recouped within a reasonable [
time
] period
of time
. Severe or substantial regression
means
[
shall
mean
] that the student has been, or will be, unable to maintain one
or more acquired critical skills
in
[
because of
] the
absence of
ESY services
[
EYS
].
time
] period
of time
for recoupment of acquired critical skills shall be determined on the basis
of needs identified in each student's IEP. If the loss of acquired critical
skills would be particularly severe or substantial, or if such loss results,
or reasonably may be expected to result, in immediate physical harm to the
student or to others,
ESY services
[
EYS
] may be justified
without consideration of the [
time
] period
of time
for
recoupment of such skills. In any case, the [
time
] period
of time
for recoupment shall not exceed eight weeks.
unplanned
] occurrences during the first eight weeks of the next regular school
year:
(B)
] significant loss of self-sufficiency
in self-help skill areas as evidenced by an increase in the number of direct
service staff and/or amount of time required to provide special education
or related services;
(C)
] loss of access to community-based
independent living skills instruction or an independent living environment
provided by noneducational sources as a result of regression in skills; or
(D)
] loss of access to on-the-job
training or productive employment as a result of regression in skills.
EYS
] for discussion at the annual review of a student's IEP, the
parent may request that the ARD committee discuss
ESY services
[
EYS
] pursuant to 34
CFR, §300.344
[
Code of
Federal Regulations (CFR), §300.504 and §300.505
].
EYS was
]considered and rejected loses critical skills because of the
decision not to provide
ESY services
[
EYS
], and if those
skills are not regained after the reasonable [
time
] period
of time
for recoupment, the ARD committee shall reconsider the current
IEP if the student's loss of critical skills interferes with
the
implementation of the
student's
IEP.
EYS
].
EYS
]
is limited to the educational needs of the student and shall not supplant
or limit the responsibility of other public agencies to continue to provide
care and treatment services pursuant to policy or practice, even when those
services are similar to, or the same as, the services addressed in the student's
IEP. No student shall be denied
ESY services
[
EYS
] because
the
[
that
] student receives care and treatment services under
the auspices of other agencies.
EYS
] provided to students for reasons other
than those set forth in this section.
on
] each student receiving special education services,
in addition to the
student's
[
student
] cumulative record.
The eligibility folder must include, but need not be limited to: copies of
referral data; documentation of notices and consents;
evaluation
[
assessment
] reports and supporting data; admission, review, and
dismissal (ARD) committee
reports
[
deliberations
]; and
the
student's individualized education programs (IEPs)
[
individual
educational plan (IEP)
].
(c)
(d)
] Each school district shall
have procedures to ensure that each teacher involved in a student's instruction
has the opportunity to provide input and request assistance regarding the
implementation of the student's IEP. These procedures must include a method
for a student's regular or special education teachers to submit requests for
further consideration of the student's IEP or its implementation. In response
to this request, the district's procedures shall include a method for the
district to determine whether further consideration is necessary and whether
this consideration will be informal or will require an ARD committee meeting.
If the district determines that an ARD committee meeting is necessary, the
student's current regular and special education teachers shall have an opportunity
to provide input. The school district shall also ensure that each teacher
who provides instruction to a student with disabilities receives relevant
sections of the student's current IEP, such as goals and objectives, modifications/accommodations,
and adaptations.
(e)
] Students with disabilities
shall have available an instructional day commensurate with that of students
without disabilities. The ARD committee shall determine the appropriate instructional
setting and length of day for each student, and these shall be specified in
the student's IEP.
students
] placed in a residential
setting
by the student's
[
based upon local school district
] admission, review, and dismissal (ARD) committee [
recommendations
], including those students placed in the Texas School for the Blind
and Visually Impaired
TSBVI
and the Texas School for the Deaf
TSD
, the
resident
school district shall be responsible for
transportation at the beginning and end of the term and for regularly scheduled
school holidays when students are expected to leave the residential campus.
The resident school district is
[
School districts are
] not
responsible for transportation costs for students placed in residential settings
by their parents. Transportation costs shall not exceed state approved per
diem and mileage rates unless excess
costs
[
charges
]
can be justified and documented. Transportation shall be arranged using the
most cost efficient means.
When
[
Where
] it is necessary
for the safety of the
student
[
child
], as determined
by the ARD committee, for an adult designated by the ARD committee to accompany
the student, round-trip transportation for that adult shall also be provided.
The
resident
school district and the residential facility shall
coordinate to ensure that students are transported safely, including the periods
of departure and arrival.
Their ] Parents in Private Schools.
(a)
] When a student with disabilities
who has been placed by his or her parents directly in a private school or
facility is referred to the local school district, the local district shall
convene an admission, review, and dismissal (ARD) committee meeting to determine
whether the district can offer to the student a free, appropriate, public
education. If the district determines that it can, the district is not responsible
for providing educational or related services to the student until such time
as the parents choose to enroll the child in the public school full-time or
request services under the dual enrollment rule in subsection
(g)
[
(f)
] of this section.
(b)
] All state requirements concerning
referral, assessment, and determination of eligibility are applicable to students
placed by their parents in private schools once the students have been referred
to the local school district. All state requirements concerning special education
services are applicable to students admitted under the dual enrollment rule
in subsection
(g)
[
(f)
] of this section.
(c)
] School districts shall use
their established procedures and forms for the referral of students from private
schools.
(d)
] To the maximum extent possible,
the district shall use referral and assessment information from the private
schools' records in order to avoid unnecessary duplication of effort or services.
(e)
] The district shall provide
to private school personnel the opportunity to participate in, and provide
information for, the district's ARD committee deliberations when the educational
needs of private school students are being considered.
(f)
] If the ARD committee determines
that a private school student is eligible for, and in need of, special education
instruction or related services or both, the parent may choose to enroll the
student full-time in the public school. If the parent does not choose to do
this, the school district shall make the special education services available
only on the basis of dual enrollment. Based on the services and amount of
time needed to provide those services, as set forth in each student's individual
educational plan (IEP), when parents choose to enroll a child under the dual
enrollment provision, the school district shall use one of the following arrangements
for dual enrollment:
(g)
] The location and procedures
for delivery of the instructional or related services or both specified in
the IEP shall be determined based on the requirements concerning placement
in the least restrictive environment and the policies and procedures of the
local district.
(h)
] For students served under
the provisions of this section, the school district shall be responsible for
the employment and supervision of the personnel providing the service, providing
the needed instructional materials, and maintaining pupil accounting records.
Materials and services provided shall be equivalent to those provided for
students enrolled only in the public school and shall remain the property
of the school district.
(i)
] Students placed in a private
school by parent choice shall not be eligible for state funded transportation
services. The school district shall provide special transportation with federal
funds only when the ARD committee determines that the condition of the student
warrants the service in order for the student to receive the instruction or
related service set forth in the IEP.
4.
SPECIAL EDUCATION FUNDING
tied
] to the instructional arrangement [
in
]
which [
they were
] generated
the funds
. The district
must maintain separate accountability for the total state special education
program fund within the general fund.
and
] must be expended on the
special education program in the subsequent year. State special education
carryover funds cannot be used for administrative costs.
individual
educational plans
] (IEPs) of students and which are not ordinarily purchased
for the regular classroom. Office and routine classroom supplies are not allowable.
Special equipment may include instructional and assistive technology devices,
audiovisual equipment, computers for instruction or assessment purposes, and
assessment equipment only if used directly with students.
special education
] staff travel to perform services
directly related
to the education of eligible students with disabilities
. Funds may also
be used to pay travel of staff
(including administrators, general education
teachers, and special education teachers and service providers)
to attend
staff development meetings for the purpose of improving performance in assigned
positions
directly related to the education of eligible students with
disabilities
.
In no event shall the
[
The
] purpose
for attending
such staff development meetings
[
shall not
]
include time spent in performing functions relating to the operation of professional
organizations.
In accordance with 34 Code of Federal Regulations, §300.382(j),
funds may also be used to pay for the joint training of parents and special
education, related services, and general education personnel.
5.
SPECIAL EDUCATION AND RELATED SERVICE PERSONNEL
§300.15 and §300.153
]; the Texas Education Code
(TEC), §§21.002, 21.003, and 29.304; or appropriate state agency
credentials.
speech language
] pathologist.
who are visually impaired
] through one of
the school district's instructional options, a shared
services
[
service
] arrangement [
unit
] with other school districts,
or an education service center (ESC).
A teacher who is certified in the
education of students with visual impairments must attend each admission,
review, and dismissal (ARD) committee meeting or individualized family service
plan (IFSP) meeting of a student with a visual impairment, including deaf-blindness.
[
These teachers must attend admission, review, and dismissal (ARD)
committee and individualized family services plan (IFSP) meetings when a student,
birth through 21 years of age, with a visual impairment is being considered.
]
who are auditorially impaired
]
through one of the school district's instructional options, a regional day
school program for the deaf, a shared
services
[
service
]
arrangement [
unit
] with other school districts, or an ESC.
A teacher who is certified in the education of students with auditory impairments
must attend each ARD committee meeting or IFSP meeting of a student with an
auditory impairment, including deaf-blindness.
[
These teachers
must attend ARD committee and IFSP meetings when a student, birth through
21 years of age, with an auditory impairment is being considered.
]
recommendation
] and the arrangements are specified in the
student's
individualized education program
[
individual educational
plan
] (IEP), physical education may be provided by the following personnel:
or
] serve as a job coach
, or serve in support of
community-based instruction
. Aides paid from state administrative funds
may be assigned to the Special Education Resource System (SERS), the Special
Education Management System (SEMS), or other special education clerical or
administrative duties.
(d)
(1)
(A)
(B)
(C)
(2)
(A)
(B)
(C)
(3)
(4)
(A)
(B)
(C)
(D)
(E)
6.
HEARINGS CONCERNING STUDENTS WITH DISABILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
7.
RESOLUTION OF DISPUTES BETWEEN PARENTS AND SCHOOL DISTRICTS