Part 2.
TEXAS EDUCATION AGENCY
Chapter 89.
ADAPTATIONS FOR SPECIAL POPULATIONS
Subchapter D. SPECIAL EDUCATION SERVICES AND SETTINGS
The Texas Education Agency (TEA) adopts the repeal of and new §89.61
and amendment to §89.63, concerning special education services and settings.
New §89.61 and the amendment to §89.63 are adopted with changes
to the proposed text as published in the November 26, 1999, issue of the
The adopted repeal of and new §89.61 do not change the content of §89.61;
however, the section has been reorganized to better reflect the process governing
residential contracts and to provide clarity for its implementation. The adopted
amendment to §89.63 provides clarification of legislative and federal
intent regarding instructional settings and least restrictive environment.
The adopted amendment reflects changes as a result of the passage of Public
Law 105-17, the IDEA Amendments of 1997, and the adoption of final federal
regulations.
In response to comments, the following changes have been made to the sections
since published.
Language in §89.61(a)(1) has been added to clarify that school districts
may also consider placing students in "out-of-state" residential facilities.
Language in §89.61(a)(4)(G) was inserted to clarify that if a school
district places more than one student in a single facility, it may review
the placements of all such students during a single on-site visit to the facility.
Language in §89.61(c)(1) was added to clarify that the provisions
of the subsection are triggered only if a district is considering the placement
of a student in a residential facility whose education program has not been
approved by the commissioner of education. The change clarifies that the commissioner
only approves the education program and not the residential facility.
Language in §89.63(c)(2) was amended to clarify when documentation
from a licensed physician is necessary to support the need for homebound services
and when the placement decision is determined by the admission, review, and
dismissal (ARD) committee as part of the continuum of services discussion
for infants, toddlers, and young children with disabilities. The format of
this subsection was adjusted to accommodate the changes.
Language in §89.63(c)(3) and (c)(10) relating to the proposed definition
for residential care and treatment facility instructional arrangement was
replaced with the original definition that is currently in rule.
The following comments were received regarding the adoption of the sections.
Comment. The Texas Continuing Advisory Committee for Special Education
(CAC) commented that language needed to be inserted into §89.61(a)(1)
to clarify that school districts may also consider placing students in "out-of-state"
residential facilities.
Agency Response. The agency agrees with the comment and has amended the
section.
Comment. The CAC commented that language needed to be inserted into §89.61(a)(4)(G)
to clarify that if a school district places more than one student in a single
facility, it may review the placements of all such students during a single
on-site visit to the facility.
Agency Response. The agency agrees with the comment and has amended the
section.
Comment. The CAC requested information from agency staff regarding the
agency's enforcement of the requirements of §89.61(b)(1)(D) that a school
district attempt lesser restrictive placements prior to placing a student
in a residential facility.
Agency Response. The agency provided the requested information. This comment
did not result in any changes to the proposed rule language.
Comment. The CAC commented that language needed to be inserted into §89.61(c)(1)
to clarify that the provisions of the subsection are triggered only if a district
is considering the placement of a student in a residential facility whose
education program has not been approved by the commissioner of education.
The requested change would clarify that the commissioner only approves the
education program, and not the residential facility.
Agency Response. The agency agrees with the comment and has amended the
section.
Comment. An education specialist from a regional education service center
commented that §89.63(c)(2) relating to the homebound instructional arrangement
should be amended to clarify when documentation from a licensed physician
is necessary to support the need for homebound services and when the placement
decision is determined by the ARD committee as part of the continuum of services
discussion for infants, toddlers, and young children with disabilities.
Agency Response. The agency agrees with the comment and has amended the
section and also adjusted the format of the paragraph to accommodate the change.
Comment. Representatives from the John H. Woods Jr. Charter School, the
Honors Academy Charter School, the Alvin Independent School District, the
East Central Independent School District, the Alamo Area Council of Administrators
of Special Education, and the Sweetwater Independent School District commented
regarding proposed §89.63(c)(10) related to the residential care and
treatment facility instructional arrangement definition. All the representatives
stated that the proposed language would have a negative fiscal impact on each
of their school districts.
Agency Response. The agency replaced the proposed definition in §89.63(c)(3)
and (c)(10) for residential care and treatment facility instructional arrangement
with the original definition that is currently in rule.
Comment. The CAC inquired about the extent to which the language in §89.63(c)
permitted school districts to develop and implement creative instructional
arrangements for the purpose of educating students with disabilities in the
least restrictive environment.
Agency Response. Agency staff responded that the provisions of §89.63(f)
address the ability of districts to consider and, with the approval of TEA,
implement program options other than those described in §89.63(c). This
comment did not result in any changes to the proposed rule language.
Comment. Representatives from the ARC of Texas and Advocacy, Inc. commented
in support of the proposed changes to §89.63.