TITLE 19.EDUCATION

Chapter 89. ADAPTATIONS FOR SPECIAL POPULATIONS

Subchapter AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES

The Texas Education Agency (TEA) adopts 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. Amendments to §§89.1001, 89.1011, 89.1035, 89.1055, 89.1065, 89.1075, and 89.1131 and new §§89.1040, 89.1045, 89.1049, 89.1050, 89.1070, 89.1096, and 89.1185 are adopted with changes to the proposed text as published in the August 18, 2000, issue of the Texas Register (25 TexReg 7983). Amendments to §§89.1015, 89.1090, 89.1095, 89.1121, and 89.1125; 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 §§89.1047, 89.1056, 89.1060, 89.1076, 89.1085, 89.1150, 89.1151, 89.1165, 89.1170, 89.1180, and 89.1191 are adopted without changes and will not be republished.

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 Texas Administrative Code (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 adopted amendments relates to the expiration of §89.1095 and adoption of new §89.1096, relating to dual enrollment. The amendment to §89.1095 includes the expiration date of June 30, 2001. New §89.1096 includes an implementation date of July 1, 2001, and will replace §89.1095 at that time. Section 89.1095 requires 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. Adopted new §89.1096 addresses these federal regulations and limits school district responsibility to provide services under "dual enrollment" to students ages 3-5. 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 §89.1047 and §89.1056 are adopted to reflect legislative intent.

Chapter 89, Subchapter AA, is organized to track and clarify the special education child-centered process. In addition, the subchapter contains clarification specific to the distribution and expenditure of state funds, personnel issues, due process hearings, and new state requirements regarding surrogate and foster parents and the transfer of assistive technology. The commissioner's rules ensure compliance with state statutes and federal regulations for the delivery of special education to students with disabilities, while giving districts more local control and flexibility consistent with the spirit and intent of both the executive and legislative branches of Texas state government.

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.

In response to comments, the following changes have been made to the following sections since published as proposed.

Language has been added and amended in §89.1001 based on public comment and to clarify school district responsibility regarding the provision of services to students with disabilities who reside in a residential facility.

Language has been added to §89.1011 based on public comment and to clarify the need for a referral when a student continues to experience difficulty after the provision of interventions. In addition, language was added to reference the 60-day time line for the completion of the evaluation report.

A specific rule reference was added to§89.1035 to reflect amendments which had been made to §89.1070, relating to graduation.

Several additions and amendments based on public comment have been made to §89.1040. Proposed language pertaining to the responsibility of evaluation personnel was removed; specification of individuals participating in multidisciplinary teams has been modified; sections, references, and terminology errors have been corrected; language was added regarding the evaluation of students with visual impairments; language was added to reference attention deficit disorder or attention deficit hyperactivity disorder (ADD/ADHH) in the other health impairment definition; and the proposed noncategorical eligibility criteria has been removed and replaced with current rule language.

Current section title and rule language have been reinstated in §89.1045, with an updated federal citation, in response to public comment relating to notice to parents for admission, review, and dismissal committee meetings.

Language has been added and amended in §89.1049 to reflect public comment regarding the transfer of parental rights when the student turns 18 years of age. The added language establishes that the parent and the student will share parental rights.

Language has been added and amended in §89.1050 to reflect public comment regarding the admission, review, and dismissal committee process; the participation of the general education teacher; and the transfer admission, review, and dismissal committee meeting time line.

Language was added to §89.1055 to reflect public comment regarding student participation in state- and district-wide assessments and goals for extended school years services.

Language was amended in §89.1065 to reflect public comment regarding certain criteria for establishing the need for extended school year services.

Language was added and amended in §89.1070 to reflect public comment regarding graduation requirements for students with disabilities.

Language was added and amended in §89.1075 to reflect public comment relating to support for teachers in the implementation of a student's individualized education program.

Language was added to §89.1096 in response to public comment and federal responsibility regarding services to students with disabilities who have been placed in private schools by their parents. An expiration date of June 30, 2004, has been added to this section.

Language was added to §89.1131 to reflect public comment and federal regulation pertaining to paraprofessionals. In addition, language was added to reflect reference to the correct certification and certifying entities.

Language was added to §89.1185 to reflect public comment and to clarify school district responsibility regarding the implementation of a hearing officer's order.

Comments were received regarding adoption of the amendments, repeals, and new sections.

The proposed rules were filed with the Texas Register in August 2000. Over 1,000 comments were received by the TEA from individuals, school district administrators, special education advocacy group, and others. The provision of services to students with disabilities placed by their parents in private schools remains a significant issue. In addition, personnel responsible for evaluation; the parent's right to request an admission, review, and dismissal (ARD) committee meeting; the transfer of parental rights when the student turns 18 years of age; criteria for extended school year services; and graduation requirements were hotly debated issues.

During the public comment period, the due process hearing procedures were also significantly debated. Many commenters have argued that the rules relating to due process hearings should include a presentment requirement that precludes an issue from being raised at a due process hearing unless it has first been raised at an ARD committee meeting. Because a presentment requirement was not included in the proposed rules, the interested parties were not on notice that the presentment issue could be considered in this rulemaking. In order to give all interested parties notice of and an opportunity to comment on a presentment requirement, a presentment requirement will be addressed in a separate rulemaking proceeding.

Four stakeholder meetings were held over 15 days. These meetings included the participation of parents, advocates, school districts, education service centers, support personnel organizations, teacher organizations, administrator organizations, and the school board association. In addition, the proposed rules were posted on the TEA website and comments were received by regular and electronic mail. Seven public hearings were also held in El Paso, Lubbock, Austin, Dallas, Houston, Corpus Christi, and Edinburg during which public comment was received. Changes based on comments from written comment and the public hearings have been incorporated into the commissioner's rules. Following is a summary of the more than 1,000 remarks received by TEA. Agency responses are provided after each comment.

Comment. Concerning §89.1001, an individual stated that they supported the proposed rule changes and thought the changes would simplify the process.

Agency Response. The agency agrees.

Comment. Concerning §89.1001, four individuals stated that they endorsed development of state rules consistent with, and not beyond, federal law.

Agency Response. The agency agrees.

Comment. Concerning §89.1001, two individuals requested that the Texas Education Agency develop a side- by-side rule document after adoption of commissioner's rules.

Agency Response. The agency agrees and intends to produce a side-by-side document.

Comment. Concerning §89.1001, four individuals stated that other regulatory agencies and state boards sometimes have policies that contradict TEA policies and that these contradictions should be identified and resolved at the state level.

Agency Response. The agency agrees and will continue to promote interagency agreements and collaboration.

Comment. Concerning §89.1001, an individual and two representatives from statewide advocacy organizations requested that the words "if the facility does not have an education program" be removed from subsection (c). They stated that the presence of a "program" at a facility does not diminish the responsibility of the local education agency and state education agency to assure free appropriate public education.

Agency Response. The agency agrees in part and additional language was added to clarify the responsibility of school districts regarding services to eligible students who reside in residential facilities.

Comment. Concerning §89.1011, six individuals, one local special education director, the Texas Special Education Continuing Advisory Committee (CAC) and five representatives from advocacy organizations requested that since §89.1030 (relating to Comprehensive Individual Assessment) has been removed from rule, language should be added here stating the 60-day timeline required by state law for completing an evaluation. They commented that failure to meet this timeline continues to be a major problem in Texas and that a clear restatement in rule is needed.

Agency Response. The agency agrees and language has been added to clarify the 60-day timeline.

Comment. Concerning §89.1011, a local special education director requested that the rule clarify "educational need that is only correctable through special education." They further stated that students who are doing well in other support programs should not be referred even with parents' request. The director commented that they are being successful and therefore it is not necessary to refer to special education.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment: Concerning §89.1011, the CAC suggested the following wording, "This referral for a full and individual initial evaluation shall be initiated. School personnel, the student's parents or legal guardian, or another person involved in the education or care of the student are eligible for full and individual initial evaluation referral at any time."

Agency Response. The agency agrees in part and wording has been revised to reflect the requirement for referral after previous interventions have been unsuccessful.

Comment. Concerning §89.1011, a local special education director asked the question, "What constitutes the initiation of referral?" In addition, the director offered the following response, "Federal guidelines say when parent signs consent!"

Agency Response. The agency disagrees with this comment and believes that state statute provides a higher standard related to the initiation of referral.

Comment. Concerning §89.1011, a representative of a state advocacy organization requested that the deadline for completion of referral and evaluation report be no more than four weeks.

Agency Response. The agency disagrees. TEC, §29.004, establishes a 60-calendar day timeline.

Comment. Concerning §89.1011, four individuals stated that this section could be interpreted to read that special education services should be offered prior to evaluation. They offered the following language for clarification: "such as tutorial, remedial, compensatory, and other non-special education services."

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1011, an individual stated they supported the change from assessment to evaluation.

Agency Response. The agency agrees.

Comment. Concerning §89.1011, a local special education director stated that the change from assessment to evaluation was unnecessary and would add confusion.

Agency Response. The agency disagrees. Use of the term evaluation will bring state language in line with federal regulations and it will contrast the individualized evaluation process from student assessment activities related to the state accountability system.

Comment. Concerning §89.1011, an individual stated that he thought there was a very fine line between the use of the terms "evaluation" and "assessment." In addition, the commenter offered the following question, "What is used to clarify the difference between "evaluation" and "assessment?"

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1011, an individual stated he has misgivings about the change from the term, "comprehensive" to the term "full." He also believes that the use of the term "full" will be misleading. The commenter asked the following questions, "What exactly does Full mean?" Why the term Initial?" "What happens when the student has the second or third evaluation?" "Is that still an initial evaluation?" The commenter offered the following: "I propose that if Comprehensive Individual Assessment needs to be changed, then change it to Comprehensive Individual Evaluation."

Agency Response. The agency does not feel that this is a necessary clarification. The proposed changes reflect federal language to eliminate conflicting terminology.

Comment. Concerning §89.1011, an individual stated that the word "full" is kind of a flat word. This commenter prefers the term "comprehensive." The commenter offered that currently, the state uses the term comprehensive individual assessment for initial and for re-evaluations. The individual commented that using the word comprehensive allows for the term to continue to be appropriate for initial and for re-evaluations. The proposed term "full and individual initial evaluation" has the word "initial," which to the commenter seems limiting to the first evaluation that would be presented for this child.

Agency Response. The agency does not feel that this is a necessary clarification. The proposed changes reflect federal language to eliminate conflicting terminology.

Comment. Concerning §89.1011, an individual stated that the proposed use of the term "full" should be replaced be the term "complete."

Agency Response. The agency disagrees. Use of the term "full" will bring state language in line with federal regulations.

Comment. Concerning §89.1015, an individual and three representatives from advocacy organizations stated they supported the rule language as proposed.

Agency Response. The agency agrees.

Comment. Concerning §89.1020, three individuals raised concerns that the repeal of the section was unnecessary and would give the impression that written notice was not required.

Agency Response. The agency disagrees. The requirements for written parental notice before assessment are contained in federal regulations.

Comment. Concerning §89.1025, an individual raised concerns that the repeal of the section was unnecessary and would give the impression that written consent was not required.

Agency Response. The agency disagrees. The requirements for written consent for assessment are contained in federal regulations.

Comment. Concerning §89.1035, seven individuals requested clarification regarding when services should start regarding young children and the summer session.

Agency Response. The agency feels that the requirements related to initial services to young children are addressed in the adopted rule.

Comment. Concerning §89.1035, two individuals expressed the concern that this rule, relating to three-is- three, could be burdensome to small/rural school districts relating to the provision of services during the summer months and finding qualified personnel to provide such services.

Agency Response. The agency understands the concern; however, this is a federal requirement.

Comment. Concerning §89.1035, five individuals requested that language be added to the section clarifying/defining graduation for students with disabilities.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1035, two individuals requested that Texas issue certificates of completion/attendance instead of diplomas to certain students with disabilities.

Agency Response. The agency disagrees; however, for the purposes of student eligibility, the agency has clarified which graduation methods terminate a student's eligibility to receive services.

Comment. Concerning §89.1035, an individual stated that she believes that once a student receives a regular diploma, they should not be able to return and receive services.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1035, a local special education director proposed that §89.1035(a) define a regular high school diploma "as a diploma granted to each of those students who have satisfactorily completed the minimum academic credit requirements for graduation applicable to students in regular education including satisfactory performance on the exit level assessment skills."

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1040, a local special education director requested that the commissioner consider adding that a child with a disability must have an educational need which is not correctable without special education.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1040, a representative of an advocacy organization stated that they supported the alignment of the state eligibility definitions with the federal definitions.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, seventy-one individuals commented that eligibility determination for attention deficit disorder or attention deficit hyperactivity disorder (ADD/ADHD) should include medical professionals in addition to school evaluation professionals.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received.

Comment. Concerning §89.1040, an individual stated that if the amended section is adopted, licensed specialists in school psychology (LSSP) and educational diagnosticians (ED) will need training from the education service centers.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, forty individuals stated that the rules should more clearly state which type of professionals should conduct which evaluations.

Agency Response. The agency agrees in part. However, the agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, thirty-nine individuals stated that the diagnosis of autism should be done by a LSSP with specific training in autism. In addition, the commenter offered that licensed speech language pathologist should also participate in making the autism diagnosis.

Comment. Concerning §89.1040, fifty-two individuals stated that the diagnosis of emotional disturbance should be done by a LSSP and conform to Texas State Board of Examiners of Psychology (TSBEP) rules and best practices.

Comment. Concerning §89.1040, an individual stated that the diagnosis of mental retardation should include a definition of the developmental nature of the eligibility criteria.

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, sixty individuals stated that the diagnosis of autism (AU), ED, and ADD/ADHD should be done by a LSSP and not by other professionals, such as educational diagnosticians.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, twelve individuals stated that trained and knowledgeable professionals, such as educational diagnosticians and LSSPs, should conduct the diagnosis of AU and ADD/ADHD.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, twelve individuals stated that the diagnosis of Traumatic Brain Injury should be done by a LSSP.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, an individual stated that the definition/eligibility criteria of learning disability should be updated to current best practice.

Comment. Concerning §89.1040, fourteen individuals stated that LSSPs need to participate in the evaluation process.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, two individuals stated that they supported the rules as proposed.

Agency Response. The agency agrees in part. However, amendments were made to the proposed rules to reflect public comment where appropriate.

Comment. Concerning §89.1040, an individual requested that any clinician licensed by TSBEP be able to provide services in the school setting.

Agency Response. The agency disagrees because this would be a violation of state statute and TSBEP administrative rules.

Comment. Concerning §89.1040, an individual requested clarification of the term "belief" in subsection (c)(13)(B).

Agency Response. The agency has revised the rule to eliminate the wording in question.

Comment. Concerning §89.1040, an individual requested that the commissioner add developmental delay to the list of eligibility criteria.

Agency Response. The agency agrees in part; however, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency recognizes the need to convene a task force to study the current eligibility requirements for all eligibility areas, including developmental delay.

Comment. Concerning §89.1040, an individual requested state standards to prevent diagnosis by private psychologists as being the benchmarks instead of a multidisciplinary team decision.

Agency Response. The agency feels that the adopted rule adheres to federal law requirements that a knowledgeable group of professionals conduct the evaluation.

Comment. Concerning §89.1040, an individual identified two erroneous references in subsection (c)(2).

Agency Response. The agency agrees and the references have been corrected.

Comment. Concerning §89.1040, an individual and two representatives of an advocacy organization offered support for the proposed language relating to auditory impairment.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, an individual requested that the changes made at subsection (c)(3), relating to auditory impairment, also be made in other sections of the subchapter to ensure that students with mild hearing impairments don't fall through the cracks.

Comment. Concerning §89.1040, an individual stated that a communication assessment must be completed; however, the individual could not find reference to the assessment in the rule.

Agency Response. The requirements for a communication evaluation are contained in federal regulations.

Comment. Concerning §89.1040, an individual recommended that the mental retardation definition should be changed to read, "of general ability and verbal ability or either performance or nonverbal ability." In addition, the individual recommended changing the eligibility standard from "two or more standard deviations" to "general intellectual functioning level is approximately 70-75 or below."

Comment. Concerning §89.1040, two individuals and five representatives from advocacy organizations requested that a reference to ADD/ADHD be added to the other health impairment (OHI) definition.

Agency Response. The agency agrees and adopted rules have been revised to reflect the suggested wording.

Comment. Concerning §89.1040, an individual recommended that "except as provided in subsection (b)(1) of this section" be deleted from subsection (c)(8).

Agency Response. The agency agrees and changes were made to reflect public comment.

Comment. Concerning §89.1040, a representative of a statewide Learning Disability organization supported rule language in subsection (c)(9)(B).

Agency Response. The agency agrees.

Comment. Concerning §89.1040, an individual recommended changing the category title from "speech impairment" to "speech/language impairment" as a helpful clarification for parents.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. An individual recommended that a reference to the multidisciplinary team be added to subsection (c)(12). In addition, the individual recommended that the commissioner add language to subsection (c)(12)(A) to specify that 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 "in a report by a licensed ophthalmologist or optometrist."

Agency Response. The agency agrees in part and revisions to the proposed rule were made to incorporate language relating to the evaluation report.

Comment. Concerning §89.1040, nine individuals stated that they supported the expansion of the noncategorical early childhood (NCEC) age range, but requested clarification of the term "belief" in subsection (c)(13)(B).

Agency Response. The agency agrees in part, and wording in subsection (c)(13)(B) has been removed. However, NCEC age ranges have been restored to ages 3-5.

Comment. Concerning §89.1040, an individual stated that they supported rule language at subsection (c)(13)(B).

Agency Response. The agency has removed this language based on public comment.

Comment. Concerning §89.1040, twenty-five individuals requested that the commissioner limit NCEC to ages 3-5.

Agency Response. The agency agrees and has incorporated this revision into the adopted rule.

Comment. Concerning §89.1040, twenty-four individuals stated that the rule language in subsection (c)(13)(B) was too vague and should be eliminated.

Agency Response. The agency agrees. The agency has removed this language based on public comment.

Comment. Concerning §89.1040, nineteen individuals recommended that the commissioner change the word "belief" to "support."

Agency Response. The agency has removed this language based on public comment.

Comment: Concerning §89.1040, the CAC recommended that language conform to the federal language in relation to establishing eligibility for young children with disabilities and indicated concerns with use of the word "belief."

Agency Response. The agency agrees in part and has reworded the section. However, the agency will revert to a previous standard for determining students to be eligible under the NCEC category.

Comment. Concerning §89.1040, four individuals and three representatives from an advocacy organization support NCEC, but recommend that the commissioner use developmental delay.

Comment. Concerning §89.1040, five individuals recommend that NCEC should not stand alone and continue to be optional.

Agency Response. The agency agrees in part and disagrees in part. Use of the category NCEC will continue to be optional; however, the agency believes inclusion of the NCEC category provides local flexibility for ARD committees in the assignment of disabling conditions to young children with disabilities.

Comment. Concerning §89.1040, an individual suggested that the commissioner eliminate NCEC.

Agency Response. The agency disagrees. The agency believes inclusion of the NCEC category provides local flexibility for ARD committees in the assignment of disabling conditions to young children with disabilities.

Comments. Concerning the repeal of §89.1045, an individual and the CAC requested that the rule language from the proposed repeal be reinstated.

Agency Response. The agency agrees. The current section title and rule language have been reinstated in the new §89.1045, with an updated federal citation.

Comment. Concerning new §89.1045, six individuals and seven representatives from advocacy organizations opposed the addition of "addressing and resolving the parent's concerns through an alternative process."

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, ten individuals requested that the commissioner establish a timeline definition for "reasonable time" when parents request an ARD committee meeting.

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, sixteen individuals recommended that the commissioner eliminate the proposed rule language and adopt the federal requirement.

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, ten individuals stated that they support the proposed rule.

Agency Response. The agency responded to public comment by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning §89.1047, a representative of the Texas State Foster Parent, Inc., requested that a timeline be placed on districts regarding when a district notifies the foster parent that the district is denying the foster parent the right to serve as the surrogate.

Agency Response. The agency does not believe that additional clarification is necessary since the adopted rule states that notice must be provided within seven calendar days to foster parents denied the opportunity to serve as a surrogate or parent.

Comment. Concerning §89.1047, three individuals and a local special education director requested clarification regarding when district employees may serve as foster parents.

Agency Response. The agency will provide additional clarification regarding surrogate parents through the education service centers.

Comment. Concerning §89.1047, an individual and three representatives of advocacy organizations suggested that the training required under this rule should be open to all parents in the district. In addition, they also recommended that the 90-day timeline for training be reduced to 30 days.

Agency Response. The agency agrees in part. Nothing in the rules will prevent a district from providing training to all parents. The agency disagrees with shortening the timeline for training.

Comment. Concerning §89.1047, the CAC recommended that the training be available to all parents. They commented that nothing in the rules will prevent a district from providing training to all parents.

Agency Response. The agency does not feel that this clarification is necessary.

Comments. Concerning §89.1047, an individual recommended that the 90-day time line for training be reduced to 60 days.

Agency Response. The agency disagrees with shortening the timeline for training.

Comment. Concerning §89.1047, two individuals commented that requirements from TEC, §29.015(b)(1)-(2), should be added to subsection (b).

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1047, nine individuals request clarification regarding TEA's responsibility in developing training.

Agency Response. The agency does not feel that this is a necessary clarification. Content of the training is addressed in the rule.

Comment. Concerning §89.1047, six individuals questioned how the rule will be monitored and whether training in one district will be honored in another district.

Agency Response. The agency agrees and further guidance will be forthcoming through the education service centers.

Comment. Concerning §89.1047, eight individuals requested a grandfather clause exempting training participation for those who were trained prior to the effective date of the rule.

Agency Response. The agency disagrees. The rule and related statute specify particular training content and no assurance can be made that training provided prior to implementation of this rule covered all required content.

Comment. Concerning §89.1047, two individuals recommended deleting proposed subsection (d) regarding notification to a foster parent of denial for the right to serve as a surrogate parent.

Agency Response. The agency disagrees. Deletion of subsection (d) would not provide adequate notice to foster parents of their rights to complaint proceedings.

Comment. Concerning §89.1047, fourteen individuals requested clarification regarding the conflict of interest provision in the proposed rule since the current rule eliminates any likely conflict in the State of Texas.

Agency Response. Further guidance will be forthcoming through the education service centers.

Comment. Concerning §89.1047, a local special education director opposed the proposed rules beyond a single child foster home. The special education director requested additional clarification of conflict of interest relating to group foster facilities.

Agency Response. Further guidance will be forthcoming through the education service centers.

Comment. Concerning §89.1047, four individuals recommended that if a surrogate refuses to participate in the training, they couldn't serve as a surrogate.

Agency Response. The agency agrees and the rules reflect the requirement for training.

Comment. Concerning §89.1047, two individuals recommended that the training should be provided by the education service centers.

Agency Response. The agency will provide guidance regarding the sources of surrogate parent training.

Comment. Concerning §89.1049, an individual recommended that state law needs to change or be clarified so parental rights transfer at age 18.

Agency Response. The agency agrees.

Comment. Concerning §89.1049, forty-four individuals and five advocacy organizations opposed the proposed rule as written, because the language creates serious legal issues by not transferring parental rights when the student turns 18 years of age. They commented that if the rule is adopted, additional clarification will be necessary.

Agency Response. The agency agrees in part and has made revisions to the adopted rule to reflect public comment in part.

Comment. Concerning §89.1049, five individuals and a representative from a parent/professional organization supported the rules as proposed.

Agency Response. The agency agrees in part but has made revisions to the proposed rule to reflect public comment in part.

Comment. Concerning §89.1049, ten individuals questioned whether the rule language means that students with disabilities no longer have the right to attend the ARD meeting, provide consent, etc.

Agency Response. The agency will provide guidance to the education service centers related to the rule.

Comment. Concerning §89.1050, an individual supported the use of the term "ARD Committee" instead of "IEP Team."

Agency Response. The agency agrees.

Comment. Concerning §89.1050, an individual suggested replacement of the term ARD committee with school district in subsection (a).

Agency Response. The agency agrees.

Comment. Concerning §89.1050, an individual requested that a side-by-side document be developed after the rules are adopted.

Agency Response. The agency agrees and a side-by-side document will be developed.

Comment. Concerning §89.1050, two individuals supported the clarification that consent is not necessary when sending or receiving student records.

Agency Response. The agency agrees.

Comment. Concerning §89.1050, an individual requested that language be added to the last sentence in subsection (f) to allow for extenuating circumstances that may prevent the sending district's providing student records within 30 days.

Agency Response. The agency disagrees. State statute requires compliance with the 30-day period.

Comment. Concerning §89.1050, five individuals, the CAC, and four representatives of parent/advocacy organizations opposed subsection (c) as written because the subsection does not contain reference to the participation of the general education teacher in the ARD committee process/meeting.

Agency Response. The agency agrees and made the suggested changes.

Comment. Concerning §89.1050, an individual raised concerns about subsection (h) regarding teacher/school personnel disagreement with the ARD committee decision and whether the 10-day recess applies.

Agency Response. The 10-day recess does not apply to school personnel's disagreement with ARD decisions.

Comment. Concerning §89.1050, six individuals, a state representative, the CAC, and eight representatives from advocacy organizations commented that the proposed rule language in subsection (e) should be amended to include the following, "In the event the child's parents are unable to speak English…." to assist in clarifying district responsibility. In addition, they requested the term "good-faith efforts" be defined.

Agency Response. The agency disagrees with adding the suggested language regarding district responsibility because requirements are defined in the Texas Education Code and such an addition would expand the statutory requirement. The agency does not feel it is necessary to define "good-faith efforts."

Comment. Concerning §89.1050, twenty-five individuals and the CAC opposed the proposed rule language in subsection (f) referencing "student enrollment" instead of "first ARD committee meeting" as the starting point for conducting transfer ARD committee meetings.

Agency Response. The agency agrees and made the suggested change.

Comment. Concerning §89.1050, an individual suggested that records should be sent within 20 calendar days.

Agency Response. The agency disagrees. State law defines the timeline as 30 days.

Comment. Concerning §89.1050, an individual suggested that records should be sent to the new district 30 days after the old district receives notice from the new district instead of 30 days from when the student enrolls.

Agency Response. The agency disagrees. State law specifies the timeline as 30 days after enrollment.

Comment. Concerning §89.1055, an individual recommended that rule language addressing positive behavioral supports and functional behavior assessment should be added to the proposed rules.

Agency Response. This requirement is addressed in federal regulation.

Comment. Concerning §89.1055, three individuals and three representatives from parent/advocacy organizations are opposed to subsection (a) as written. Specifically, they are opposed to the removal of subsection (a)(2) relating to the student's participation in state- and district-wide assessments. Their rationale for reinstating (a)(2) is based on the new federal requirements relating to student participation in state- and district- wide assessments and the new alternative assessment, which will be administered for the first time in April 2001.

Agency Response. The agency agrees and the proposed rule was revised.

Comment. Concerning §89.1055, twenty-two individuals, the CAC, and four representatives from parent/advocacy organizations requested the addition of the phrase "from the student's current IEP" to the end of subsection (b) in relation to extended school year services goals and objectives.

Agency Response. The agency agrees and the proposed rule was revised. Proposed subsection (b) has become subsection (c) as a result of the insertion of a new subsection (b).

Comment. Concerning §89.1055, an individual requested the elimination of subsections (d) and (e) relating to additional consideration items for students with autism/pervasive developmental disorders.

Agency Response. The agency disagrees. This section was opened only for the purposes of reordering the rules. The agency did not propose changes to these areas.

Comment. Concerning §89.1056, an individual commented that TEA should develop procedures or guidelines to assist districts with the transfer process.

Agency Response. The agency agrees. Clarification regarding requirements will be provided through the education service centers.

Comment. Concerning §89.1056, three individuals commented that TEA should clarify that assistive technology (AT) devices belong to the school district and any transfer of the device must be agreed to by the school district.

Agency Response. The agency does not feel that this clarification is necessary.

Comment. Concerning §89.1056, an individual and six parent/advocacy organizations supported the rule as proposed.

Agency Response. The agency agrees.

Comment. Concerning §89.1056, four individuals questioned the need for this section, since it is not required.

Agency Response. This rule was developed based on requirements of state statute.

Comment. Concerning §89.1056, an individual questioned the need for parental consent.

Agency Response. This rule was developed based on requirements of state statute.

Comment. Concerning §89.1056, two individuals questioned the amount of "sale" and whether this applies to any price or just over a certain amount. The individuals also questioned when the uniform transfer agreement (UTA) is required.

Agency Response. Clarification will be provided through the education service centers.

Comment. Concerning §89.1060, an individual requested that the Texas Education Agency provide a definition of occupational therapy and physical therapy.

Agency Response. The agency does not feel that this clarification is necessary.

Comment. Concerning §89.1065, a representative from a parent/advocacy organization opposed the continuation of using a regression/recoupment standard. In addition, they commented that funding reimbursement should not be limited to the regression/recoupment criteria.

Agency Response. The purpose of the proposed amendment to this section was to update the terminology and reference to extended school year services and not to make significant changes to related issues. The agency recognizes the need to convene a task force to study issues surrounding extended school year services.

Comment. Concerning §89.1065, an individual recommended changing proposed rule language to "significant loss of skills necessary for the student to appropriately progress toward achieving the goals set out in the student's IEP for which he cannot recoup within the normal amount of time needed for students being served in the general education curriculum."

Agency Response. The agency agrees in part and has made revisions to the rule language.

Comment. Concerning §89.1065, two individuals suggested that the extended school year (ESY) decision system is becoming too vague and offered that ESY services should be for students who have demonstrated regression and this need should be documented.

Comment. Concerning §89.1065, three individuals supported proposed language in paragraph (1)(A) and (B).

Agency Response. The agency agrees.

Comment. Concerning §89.1065, two individuals opposed paragraphs (1) and (2) because the proposed rule language maintains the regression/recoupment standard.

Comment. Concerning §89.1065, an individual and two representatives from parent/advocacy organizations opposed paragraphs (2) and (3) because the proposed rule language maintains the regression/recoupment standard.

Comment. Concerning §89.1065, three individuals and three representatives from parent/advocacy organizations oppose paragraph (4) because the proposed rule language maintains the regression/recoupment standard.

Comment. Concerning §89.1065, seven individuals opposed paragraph (4)(B) because it is too vague, goes beyond intent of regression/recoupment standard, and will require full ESY funding to implement. They recommend the following wording, "significant loss of skills necessary for the student to appropriately progress toward achieving the goals set out in the student's IEP."

Agency Response. The agency agrees in part and has revised rule language to reflect consideration for loss of skills. Wording related to progress toward goals set in the student's IEP goes beyond intent of ESY services.

Comment. Concerning §89.1065, two individuals and three representatives from a parent/advocacy organization supported paragraph (4)(B), but opposed paragraph (4)(A) and (C)-(E) because the proposed rule language maintains the regression/recoupment standard.

Comment. Ten individuals opposed paragraph (4)(B) because it is too vague, goes beyond intent of regression/recoupment standard, and will require full ESY funding to implement.

Agency Response. The agency agrees in part and has revised rule language.

Comment. Concerning §89.1065, an individual supported (4)(B).

Agency Response. The agency has revised rule language based on public comment.

Comment. Concerning §89.1065, the CAC suggested rewording of paragraph (4)(B) to reflect that the ESY services are not for advancing skills, but for maintenance.

Agency Response. The agency has revised rule language based on public comment.

Comment. Concerning §89.1065, an individual recommended that the state adopt the federal regulation pertaining to ESY.

Comment. Concerning §89.1065, an individual and a representative from a parent/advocacy organization opposed paragraph (6) because the proposed rule language maintains the regression/recoupment standard.

Comment. Concerning §89.1065, four individuals and four representatives from parent/advocacy organizations opposed paragraph (9) because the proposed rule language maintains the regression/recoupment standard and does not allow for reimbursement for other types of determination of ESY services.

Comment. Concerning §89.1070, five individuals requested that the commissioner define a regular high school diploma "as a diploma granted to a student who has satisfactorily completed the minimum academic credit requirements for graduation applicable to students in general education, including satisfactory performance on the exit level assessment instrument."

Agency Response. The agency agrees in part and has made changes to this section.

Comment. Concerning §89.1070, two individuals requested that the commissioner add the language to reflect that for students who graduate according to subsection (2)(C)(3) of this subsection, the ARD committee shall determine whether educational services will be resumed upon the request of the student or parent, as appropriate, so long as the student meets the age eligibility requirements.

Agency Response. The agency agrees in part and has made changes to this section.

Comment. Concerning §89.1070, four individuals requested that the rule language list the requirements of state statute, instead of just a reference to the code.

Agency Response. The agency does not feel this is necessary.

Comment. Concerning §89.1070, an individual states that this section offers helpful clarification.

Agency Response. The agency agrees in part but has made changes to this section.

Comment. Concerning §89.1070, an individual commented that subsection (c) sets no standard and that there are grammatical problems with this section.

Agency Response. The agency has made changes to this section.

Comment. Concerning §89.1070, four individuals commented that the term "retain" relative to employment is vague.

Agency Response. The agency disagrees. The agency believes that local education agencies will be able to determine whether students with disabilities are able to retain employment based on follow-up queries to determine the employment status of individuals.

Comment. Concerning §89.1070, four individuals commented that reference to TEC, §39.024, does not state clearly how a student would then graduate.

Agency Response. Additional clarification will be provided through the education service centers.

Comment. Concerning §89.1070, five individuals commented that receipt of a certificate or credential does not terminate entitlement to special education services, but makes no reference to where educational services would then be rendered. A high school setting is not appropriate.

Agency Response. Additional clarification will be provided through the education service centers.

Comment. Concerning §89.1070, an individual stated that students need to have minimum credits or criteria, such as attend high school four years or be age appropriate for graduation.

Agency Response. Additional clarification will be provided through the education service centers.

Comment. Concerning §89.1070, eleven individuals, Advocacy, Inc., and the Disability Policy Consortium commented that they feel too much discretion is left to the districts in determining whether to allow students with disabilities to participate in graduation ceremonies with their peers, while receiving a certificate other than a diploma and being able to return for additional services. Other language was proposed (by Advocacy and supported by most commenters) requiring the decision to be an ARD committee decision setting a statewide standard rather than local control. These commenters also agreed that participation in graduation ceremonies with peers even though graduation requirements had not yet been met was appropriate and several expressed appreciation for the attempt to address it in rule.

Agency Response. The agency disagrees in part. However, proposed changes regarding participation in graduation ceremonies have been removed from the adopted rule.

Comment. Concerning §89.1070, four individuals commented that students with disabilities should be allowed to participate in graduation ceremonies with peers even though graduation requirements had not yet been met, receive a certificate other than a diploma, and be able to return to the school district for additional special education services.

Agency Response. The agency agrees and has addressed these issues in the changes.

Comment. Concerning §89.1070, two individuals stated subsection (f) relating to participation in graduation ceremonies should be deleted.

Agency Response. The agency has revised the rules to address this issue.

Comment. Concerning §89.1070, an individual commented that schools should have their own policy on graduation.

Agency Response. The agency agrees that this may be appropriate within the context of administrative code and has modified the section.

Comment. Concerning §89.1070, an individual commented that more clarification is needed on when a certificate is granted and what the certificate should say.

Agency Response. The agency agrees in part and has removed the rule language related to issuance of a certificate.

Comment. Concerning §89.1070, seven individuals were against allowing students with disabilities to participate in graduation ceremonies and receive a certificate other than a diploma because it would either invalidate efforts to include students and/or would result in the likelihood of students with disabilities not returning to complete graduation requirements. Several commenters related participation in a graduation ceremony to social promotion. Additionally it was expressed that participation in graduation should indicate a conclusion/completion of requirements thereby terminating entitlement to special education services.

Agency Response. This issue has been addressed in rule changes. The rule has been modified in response to public comment.

Comment. Concerning §89.1070, an individual states we should just use a diploma to indicate graduation and reflect what had been completed in the AAR.

Agency Response. The agency agrees in part and changes have been made to reflect public comment.

Comment. Concerning §89.1070, an individual requested the addition of wording relating to the exception of age eligibility to §89.1070 (as per §89.1035 relating to Age Ranges for Student Eligibility).

Agency Response. The agency agrees and has modified the section to include wording related to age eligibility requirements.

Comment. Concerning §89.1070, an individual commented that wording on aging from current §89.1070(6) should be left in new rules.

Agency Response. The agency agrees and rules have been revised to incorporate language regarding age eligibility requirements into §89.1070(d).

Comment. Concerning §89.1075, an individual requested that language be added to subsection (c) regarding federal requirements specific to the support of teachers and the implementation of the IEP. In addition, this same individual requested clarification of the timeline for providing parents of students with disabilities notice of student progress.

Agency Response. The agency agrees with the comment relating to teachers' implementation of the IEP, and the section has been revised. The agency removed the parental notification wording in this section as this requirement already is reflected in federal regulations.

Comment. Concerning §89.1076, three statewide advocacy groups and six individuals opposed these rules stating they are weak and will not encourage districts that are out of compliance to change. Seven of the nine commented about the lack of timelines. Six were concerned that public release of information would be a sanction when in fact it was a part of the public's right to know and should be made public for all schools. Six commented on the fact that of the eleven items listed only one (withholding funds) was truly a sanction. The rest were interventions that are already a part of the monitoring process. They stated that only sanctions, not interventions, should be part of the rule. Four of the nine wanted sanctions comparable to those for accreditation sanctions in TEC, §39.13, which are ranked in order of severity and state clearly the actions to be taken by the school and the agency.

Agency Response. The agency disagrees and has the authority to determine interventions and sanctions necessary to ensure compliance with IDEA.

Comment. Concerning §89.1076, three special education directors opposed sanctions in paragraphs (3), (7), and (9) stating they exceed the scope of the complaints process and overlap the due process system. They commented that to implement the entire list of possible interventions and sanctions would render a relatively useless role to the due process hearings as they now stand.

Agency Response. The agency disagrees and has the authority to determine interventions and sanctions necessary to ensure compliance with IDEA.

Comment. Concerning §89.1085, an individual requested clarification of the meaning and implications of the use of the words "may place" instead of "may refer" in 89.1085(a).

Agency Response. The agency does not feel that this clarification is necessary.

Comment. Concerning §89.1095, an individual stated that this section was confusing. He requested clarification in the area of special education transportation.

Agency Response. Additional clarification will be forthcoming through the education service centers.

Comment. Concerning §89.1095, two individuals, two local special education directors, and a principal stated that they supported the change. They felt that following more closely with federal guidelines reduces undue hardship on the school system. One individual asked, "Could it be implemented January 1, 2001?"

Agency Response. The agency agrees in part but the implementation timeline will stand in conformance with agency procedure.

Comment. Concerning §89.1095, the CAC recommended the retention of the dual enrollment provision.

Agency Response. The agency disagrees. Federal requirements limit the responsibility of local education agencies related to the provision of special education services to students with disabilities placed by their parents in private schools.

Comment. Concerning §89.1095, a parent providing home school services to a child with a disability stated that the changes in dual enrollment provisions will deny the child with disabilities valuable services, to which they are entitled, through the school district.

Comment. Concerning §89.1095, two individuals stated that dual enrollment needs to be deleted as an option. They stated that it goes beyond the intent of the federal law and that it has fiscal impact on school districts. They said, "Private schools should only be entitled to proportional share as outlined in IDEA."

Agency Response. The agency agrees.

Comment. Concerning §89.1095, six individuals stated that they are against the changes in dual enrollment. They stated that they are worried the state is eliminating, or drastically reducing, much needed special education services for children in private schools. One stated that, "… public schools will always need more money, but this is not where it should come from."

Agency Response. The agency disagrees in part and refers to federal requirements in this area.

Comment. Concerning §89.1095, parents of a hearing impaired child stated that they are against the changes in dual enrollment. They have the impression that it is a money issue for schools. They felt that if schools were held accountable for helping children with hearing impairments to reach their full potential and could provide successful programming, parents would not have to consider private school placements. They stated that it is discriminating against special populations.

Comment. Concerning §89.1095, an individual supported subsection (a) establishing the expiration date of June 30, 2001.

Agency Response. The agency agrees.

Comment. Concerning §89.1096, a special education director stated that keeping dual enrollment for children with disabilities ages 3-5 would put undue financial burdens on small school districts that contract with related service personnel. They commented that the federal government has chosen to cap the numbers. Yet, since the cap was put into effect, their special education numbers have increased 13%. They stated that there needs to be a way to fund small school districts that do not have related service personnel on permanent staff.

Agency Response. The agency disagrees. However, an expiration date has been added to the rule wording, which will bring state requirements in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities.

Comment. Concerning §89.1096, a special education director stated that it was very appropriate to continue to have dual enrollment available to children with disabilities ages 3-5.

Agency Response. The agency agrees in part. However, an expiration date has been added to the rule wording. Until the expiration date of June 30, 2004, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities.

Comment. Concerning §89.1096, fourteen individuals stated that this was a significant improvement, as it will give some relief in providing services to home/private school students. They felt that by being able to provide specific services; yet, not having the responsibility for daily supervision and creative programming, there was a more varied continuum of placement services providing a free and appropriate public education. One said, "…the flexibility of dual enrollment with 3- and 4-year-old students would go a long way in fostering a very good, positive working relationship with parents in those early stages…"

Comment. Concerning §89.1096, a special education director and an individual stated it was fairly unsuccessful to attempt to provide services under the current dual enrollment. They supported following federal regulations without additions by TEA.

Agency Response. The agency agrees in part. However, a higher state standard for students ages 3-5 will be in place until June 30, 2004. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities.

Comment. Concerning §89.1096, three attorneys stated that the dual enrollment provisions exceed the agency's rule-making authority and that they will require a significant expenditure of money for the school district. They said, "It's unfair to impose this financial obligation on school districts without going through the legislative process." They urged that this issue go through the legislative process and be presented as state law. They have concerns about how districts are supposed to implement dual enrollment without clear guidelines. They agree with the provision that says if a parent objects to aspects of dual enrollment services, it should be presented as a TEA complaint, rather than a due process hearing. They stated that there should be added language that says if parents file for hearing challenging the district's free appropriate public education offer, that they cannot introduce evidence pertaining to the implementation of dual enrollment services to support their claim for reimbursement or prospective private services.

Agency Response. The agency agrees in part. An expiration date has been added to the rule wording, which will bring state requirements in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities. Due to proposed expiration of this section, the agency does not feel it is necessary to add language regarding hearing challenges on dual enrollment.

Comment. Concerning §89.1096, five individuals stated that they were against the proposed changes included in this section. The following reasons were listed: 1) Private school parents pay their full share of property taxes and their children should have access to special education, 2) Reducing services to special needs children is bad for the community in the long run because medical conditions go untreated, 3) The federal law is just the minimum that a state or local district must do, 4) There may be higher cost to public schools, and 5) It is hard to be accountable for preschool children in a private facility.

Agency Response. The agency understands these concerns. However, state requirements will be brought in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities.

Comment. Concerning §89.1096, an individual stated that tax funds for special education services should be available to all students including students who do not attend public schools.

Agency Response. The agency disagrees. An expiration date has been added to the rule wording, which will bring state requirements in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. However, after the expiration date, the state will implement the federal standard and will not impose a higher standard.

Comment. Concerning §89.1096, two advocacy groups and a Head Start program strongly supported the changes and appreciated the continued availability of dual enrollment for children three to four years old. They stated that due to the lack of integrated preschool opportunities in many Texas public schools, it is essential to have this provision.

Agency Response. The agency agrees in part. However, an expiration date has been added to the rule wording, which will bring state requirements in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities.

Comment. Concerning §89.1096, twelve individuals stated that they strongly supported dual enrollment for three to four year olds. They also stated that school districts should understand their responsibility of providing the full continuum of placement options including integrated settings in community preschool programs.

Comment. Concerning §89.1096, an individual stated that this provision aligns Texas with federal regulations and will provide clear direction for parents and school staff.

Agency Response. The agency agrees in part. After the June 30, 2004, expiration date, state requirements will align with federal requirements.

Comment. Concerning §89.1096, three individuals stated that they supported the section as proposed.

Agency Response. The agency agrees in part. However, an expiration date has been added to the rule wording. After the June 30, 2004, expiration date, state requirements will align with federal requirements.

Comment. Concerning §89.1096, nineteen individuals stated that they are against this dual enrollment for preschool students because it is a burden not required by IDEA, adds undue fiscal burdens, and creates confusion about their transportation. Individuals raised a question relating to how the federal funds would be dispersed for this age group. They stated that procedures should be developed to help districts implement federal standard.

Agency Response. The agency agrees in part. An expiration date has been added to the rule wording, which will bring state requirements in line with federal requirements effective June 30, 2004. Until the expiration date, a higher state standard will apply related to dual enrollment for students ages 3-5. During the intervening time period, the agency will implement activities to build capacity of the education service centers and local education agencies related to an appropriate continuum of placement options for young children with disabilities. Additional guidance related to these requirements will be disseminated through regional education service centers.

Comment. Concerning §89.1096, an individual requested the inclusion of the requirements in 34 Code of Federal Regulations for clarification.

Comment. Concerning §89.1096, two individuals stated that the dual enrollment for ages 3-4 should be deleted.

Agency Response. The agency agrees in part. An expiration date for the dual enrollment provision for young children has been added to the rule wording.

Comment. Concerning §89.1096, an individual stated that the language in subsection (f) relating to complaints about the implementation of a student's IEP is confusing.

Agency Response. The agency disagrees and believes the wording in subsection (f) provides information regarding the due process rights available to students receiving services based on dual enrollment.

Comment. Concerning §89.1096, an individual expressed support for the provisions because funds are being used by students in private placements who do not generate any revenue for local districts and who have no accountability as to the expenditure of those dollars.

Agency Response. The agency agrees in part. However, a higher state standard will apply for young children until the expiration date of June 30, 2004.

Comment. Concerning §89.1125, three individuals stated they supported the proposed rule language as proposed.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, two individuals, believing the proposed change is designed to reduce restrictions, supported allowing any clinicians who are certified by TSBEP to provide psychological services in the schools, without an LSSP license, and request specific wording to clarify this. Without the explicit statement, they fear TSBEP will create burdensome and restrictive requirements that deter clinicians from working with schools, as they believe they have done with the LSSP licensure.

Agency Response. The agency disagrees. While the agency wishes to provide local flexibility regarding the assignment of qualified personnel, professional licensing boards have the authority to license practitioners within their scope of responsibility.

Comment. Concerning §89.1131, one individual stated that the change clarifies participation of teachers in ARD committees for students with visual impairments.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, one student, two parents, and three teachers supported the rule requiring teachers certified in the education of students with visual impairments to be available to students with visual impairments because of their expertise in the unique needs of these students.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, one teacher stated a need for wording that is stronger than the vision teacher "must be available."

Agency Response. The agency disagrees. This wording is consistent with past rule, and some specific requirements related to the involvement of the teacher are provided within the section.

Comment. Concerning §89.1131, three individuals stated that the rule should be changed so that vision teachers would be required to participate only in initial and annual ARD committees, not brief ARD committees, because of the burden on the district.

Agency Response. The agency disagrees. Any ARD committee convened for the purposes of discussing a student's IEP should have available all members necessary to make appropriate decisions related to the student's educational program as it will be addressed in the meeting.

Comment. Concerning §89.1131, one individual stated that the change clarifies participation of teachers in ARD committees for students with auditory impairments.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, four individuals stated that teachers certified in the education of students with auditory impairments should be required to be available at only initial and annual ARD committees, not brief ARD committees, because of potential burden on district.

Comment. Concerning §89.1131, two individuals stated the rule continues to allow districts to have flexibility in using personnel related to teaching physical education.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, one individual stated a need for specific language clearly stating that paraprofessionals cannot be used to instruct students in special education, emphasizing the intent of federal law.

Agency Response. The agency does not feel that this clarification is necessary.

Comment. Concerning §89.1131, one individual requested a rule making retaliation against school employees who advocate for special education students illegal.

Agency Response. The agency does not feel this is necessary as it is outside the scope of intended rule-making at this time.

Comment. Concerning §89.1131, two individuals expressed a need for the rule to specifically require certified teachers to supervise paraprofessionals.

Agency Response. The agency does not feel that clarification is necessary.

Comment. Concerning §89.1131, five individuals and one representative of a statewide advocacy group stated a need for the rule to allow paraprofessionals to be assigned to regular education teachers as well as special education teachers, particularly in the mainstream setting.

Agency Response. The agency agrees and the change was made in subsection (f).

Comment. Concerning §89.1131, one individual stated that the rule clarifies that the commissioner can issue emergency permits rather than waivers for certified interpreters.

Agency Response. The agency agrees.

Comment. Concerning §89.1131, five individuals indicated a need to expand the time period for allowing emergency certifications for interpreters to be five years instead of three, because of the current interpreter shortage.

Agency Response. The agency disagrees and chooses to uphold its current requirements in order to ensure compliance with the federal standard related to qualified personnel. This timeline is consistent with other timelines implemented for educators seeking emergency certification.

Comment. Concerning §89.1150, an individual did not favor the proposed rule since he felt it is contrary to federal law.

Agency Response. The agency disagrees and believes that the proposed rule is in compliance with federal requirements.

Comment. Concerning §89.1150, two individuals favored the proposed rule in general.

Agency Response. The agency agrees.

Comment. Concerning §89.1150, an individual favored the proposed rule, but recommended a re-ordering of the options available.

Agency Response. The agency agrees in part, but the section was not re-ordered.

Comment. Concerning §89.1150, an individual suggested improving the proposed rule with four specific proposals related to encouraging dispute resolution at the lowest level, requiring a two-step resolution attempt, ordering the rules options from lowest to highest levels, and resolution of complaints.

Agency Response. The agency disagrees and feels that additional restrictive wording could inappropriately limit the rights of parents to pursue due process. The current wording discusses a list of possible options for dispute resolution but does not prescribe an order or required method for accessing the options.

Comment. Concerning §89.1150, three individuals fully supported the proposed rule.

Agency Response. The agency agrees.

Comment. Concerning §89.1150, an individual favored the proposed rule in general, but recommended that specific clarifying language be added related to a presentment requirement prior to filing for a due process hearing.

Agency Response. The agency agrees in part, but proposed language was not revised. The agency proposes to address the presentment requirement in future rule-making activities.

Comment. Concerning §89.1150, nine individuals favored the proposed rule, but provided specific rationale for suggested changes related to exhausting administrative remedies prior to pursuing other due process options.

Agency Response. The agency agrees in part, but proposed language was not revised. The agency feels that additional restrictive wording could inappropriately limit the rights of parents to pursue due process.

Comment. Concerning §89.1150, an individual suggested more clarification concerning "conflict of interest" and specificity concerning resolving disputes at the lowest possible level for subsection (b).

Agency Response. Additional clarification will be forthcoming through the education service centers.

Comment. Concerning §89.1150, an individual recommended wording changes concerning the development of collaborative partnerships in subsection (b).

Agency Response. This agency disagrees. While collaborative partnerships between parents and schools are positively acknowledged, this section related to due process rights must provide specific information related to official means for dispute resolution.

Comment. Concerning §89.1150, an individual indicated that options seem to infer that attorneys are necessary in subsection (c).

Agency Response. The agency disagrees and does not feel that the wording infers that attorneys are necessary in the dispute resolution process.

Comment. Concerning §89.1150, an individual suggested that a two-step resolution attempt be made prior to filing for a due process hearing in subsection (c).

Agency Response. The agency disagrees and feels that additional restrictive wording could inappropriately limit the rights of parents to pursue due process.

Comment. Concerning §89.1151, seven individuals fully support the proposed rule.

Agency Response. The agency agrees.

Comment. Concerning §89.1151, an individual favored the proposed rule, but was disappointed that it does not include a presentment requirement.

Agency Response. The agency agrees in part and proposes to address the presentment requirement in future rule- making activities.

Comment. Concerning §89.1151, four individuals provided specific feedback on language in the proposed rule and suggested that the agency should not proceed with due process activities if the parent has agreed to go to ARD or mediate, etc.

Agency Response. The agency disagrees and feels that additional restrictive wording could inappropriately limit the rights of parents to pursue due process.

Comment. Concerning §89.1151, an individual supported the proposed rule, but made recommendations relating to subsection (b) stating that parents should be required to complete forms and delineate specific efforts tried to resolve concerns prior to submitting a request for due process hearing.

Agency Response. The agency disagrees and feels that additional restrictive wording could inappropriately limit the rights of parents to pursue due process.

Comment. Concerning §89.1151, seven individuals opposed limiting the statute of limitations to one year for subsection (c).

Agency Response. The agency disagrees and believes that the proposed statute of limitations establishes a legal standard and provides a framework for addressing concerns related to due process actions.

Comment. Concerning §89.1151, an individual suggested that a portion of the rule in subsection (c) is in conflict with the U.S. Court of Appeals 5th Circuit decisions.

Agency Response. The agency disagrees and believes that the proposed rule establishes a legal standard.

Comment. Concerning §89.1151, an advocacy group was opposed to shortening the statute of limitations in subsection (c).

Agency Response. The agency disagrees and believes that the proposed statute of limitations meets current legal requirements and provides a framework for addressing concerns related to due process actions.

Comment. Concerning §89.1151, fifteen individuals support subsection (c) of the proposed rule.

Agency Response. The agency agrees.

Comment. Concerning §89.1165, five special education administrators would like to add to the end of subsection (b): "If such clarification does not occur, the hearing officer shall dismiss the complaint without prejudice to refiling."

Agency Response. The agency disagrees. The agency believes that procedures afforded under this section and federal regulation provide the hearing officer sufficient discretion in managing these concerns.

Comment. Concerning §89.1165, seven districts supported and hoped "that the intent of the document and the intent of the rule here is to further eliminate the broad based facts that we receive" and that it "specifies the exact disagreement with the proposed education IEP for the child and exactly what relief the complaining party is wanting."

Agency Response. The agency agrees that the rule will require additional specificity.

Comment. Concerning §89.1165, one district in addition to the comment above would like the requirement that parents must bring the complaint to the ARD committee first.

Agency Response. The agency agrees in part and proposes to address the presentment requirement in future rule- making activities.

Comment. Concerning §89.1170, an individual stated that the regulation in subsection (c) does not specify or even give a clue about what sanctions are contemplated by subsection (c). The commenter also stated that, as a practical matter, hearing officers have no authority to award any sanction that does not effectively interfere with a party's due process right to a hearing on legitimate claims and to present evidence.

Agency Response. The agency disagrees and believes it is within the authority of the hearing officer to implement appropriate sanctions to maintain an orderly hearing process.

Comment. Concerning §89.1170, an individual stated that the new provisions omit existing provisions that are designed to assure that the hearing officer does not have affiliations that would interfere with impartiality. The individual commented that such provisions should be retained or enhanced and that to many, there is the appearance that the education establishment is inbred with a resulting lessening of standards and accountability. The individual also stated that it is clear that hearing officers need significant expertise to be effective; and, nevertheless, that expertise is available without compromising the reality and important appearance of neutrality.

Agency Response. The agency disagrees and believes the wording related to selection of an impartial hearing officer excludes from selection hearing officers with affiliations that preclude impartiality.

Comment. Concerning §89.1180, an individual noted that the specificity of this section was excellent.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, an individual noted that this section is not for hearing officers to put words in parents' mouths.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, an individual noted the pre-hearing procedures were an excellent revision, good for all students.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, an individual noted that the pre-hearing conference being mandatory and recorded would provide for focus on the true issues. Using the same disclosure deadline when a suit is refiled after dismissal will eliminate "wavering."

Agency Response. The agency agrees.

Comment. Concerning §89.1180, two individuals noted the recording of the pre-hearing conference would be cumbersome and expensive and that the written record could also be difficult. One individual suggested that if the law requires records, a tape recording would be preferred. The other individual suggested that a tape recording would present issues regarding sanitation of personally identifiable information.

Agency Response. The agency disagrees. The rule prescribes a written, or, at the option of either party, an electronic, verbatim record of the prehearing conference. The agency believes that an official recording of the prehearing conference will promote a definition of issues at the early stages of the process.

Comment. Concerning §89.1180, five individuals noted that a written transcript of all prehearing conferences should be required.

Agency Response. The agency agrees in part but wishes to allow parties to accept electronic recordings.

Comment. Concerning §89.1180, an individual noted that the electronic verbatim recording requires a court reporter, requires a hearing officer to make the call, and would be costly.

Agency Response. The agency disagrees. A court reporter will not necessarily be required for an electronic verbatim recording. The agency also believes that an official recording of the prehearing conference will promote a definition of issues at the early stages of the process.

Comment. Concerning §89.1180, five individuals noted that defining the issues of the dispute would keep the hearing focused. The change will encourage efforts to be more productive. This will also minimize costs.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, twelve individuals noted that continuances and refiling are costly and nonproductive and agree with the present wording.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, an individual noted that subsection (f) appears to give hearing officers the discretion to issue subpoenas, which is not permitted under the current law. That additional discretion is desirable.

Agency Response. The agency agrees.

Comment. Concerning §89.1180, seven individuals noted that the wording should be clarified to require specific disclosure of witnesses and exhibits and that parties who miss the deadline should not be permitted to call witnesses or introduce evidence.

Agency Response. The agency is open to additional discussion of this topic in the future.

Comment. Concerning §89.1180, Advocacy, Inc., and an individual noted that a strict rule related to barring the introduction of evidence that was not previously disclosed would not be best in this situation, but should be dealt with by the hearing officer on a case-by-case basis.

Agency Response. The agency disagrees and believes the discovery requirements will promote the efficiency of proceedings.

Comment. Concerning §89.1180, an individual noted that there could be many reasons for refiling and introduction of new evidence; this would be a burden to parents.

Agency Response. The agency disagrees and believes the dismissal and refiling requirements will promote the efficiency of the prehearing process.

Comment. Concerning §89.1185, a hearing officer requested clarification on the regulation's "reasonable notice." The officer inquired whether it is associated with the filing of the hearing request or with the receipt of the hearing officer's statement of issues.

Agency Response. Additional clarification will be provided through hearing officer training.

Comment. Concerning §89.1185, a special education director is in favor of the changes. These proposed rules should help make disputes between schools and parents be more easily worked through.

Agency Response. The agency agrees.

Comment. Concerning §89.1185, one individual proposed a change to subsection (b) of "reasonably convenient to all (or the) parties" and believes current wording allows discretion of the parent and hearing officer but does not take into account that the school district witnesses may not be available during the summer months.

Agency Response. The agency disagrees and believes current discretion in allowing hearing officers to set hearing times and places is appropriate. Additionally, subsection (o) allows for the granting of extensions for good cause.

Comment. Concerning §89.1185, a hearing officer requested clarification on what it means to require a court reporter to "immediately" prepare a transcript of the proceedings. "Is a procedural right of the party violated if the court reporter fails to prepare this immediately, but instead takes ten days to prepare it?"

Agency Response. Additional clarification will be provided through hearing officer training.

Comment. Concerning §89.1185, a hearing officer suggested that the mailing of final decisions to counsel be an option when another method of choice is faxing the decisions. "It is of no practical significance to me either way- except with fax the receipt of the decision can be easily verified, whereas with a mailing, additional cost to the Agency is required by the necessity of certified mail or Federal Express."

Agency Response. Additional clarification will be provided through hearing officer training.

Comment. Concerning §89.1185, eight individuals opposed the change on subsection (q) in that it goes beyond the requirements of 34 CFR §300.514 (c), and will be a hardship on districts choosing an appeal to the hearing officer's decisions. The requirement to implement adverse decisions within ten days is unwarranted, especially in regard to reimbursement issues.

Agency Response. The agency disagrees. However, the agency has changed subsection (q) to address reimbursement issues.

Comment. Concerning §89.1185, six individuals opposed the change of subsection (k). They commented that it places excessive and unnecessary limitations on the hearing officer's discretion to decide what additional analysis, briefing, etc., are necessary for the hearing officer to make a just decision.

Agency Response. The agency disagrees and believes that post-hearing briefs are necessary only when legal issues involved in the hearing are novel or unsettled in the State of Texas or the U.S. Court of Appeals 5th Circuit.

Comment. Concerning §89.1185, a representative of a state-based advocacy group and a hearing officer opposed the changes of subsection (k) in that to deny a party the opportunity to make its legal arguments would violate due process and could generate more litigation. A 30-day limitation period is inconsistent with the policies underlying the IDEA.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, a representative of a state-based advocacy group and a hearing officer opposed the changes of subsection (m) stating that the change only encompasses findings that would be potentially more beneficial to the school district.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, two individuals opposed changes to subsection (m) in that it would not incorporate the substantive jurisdiction for the due process hearing, which is not contemplated or authorized under IDEA.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, one individual opposes changes in subsection (m) unless the hearing officer can also include findings as to whether the party was a prevailing party.

Agency Response. The agency does not believe this clarification is necessary.

Comment. Concerning §89.1185, one individual expressed concern for the changes in subsection (m) in that TEA should further discuss and develop procedures for the admission and consideration of settlement offers.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, five individuals would like the change to include whether either party unreasonably protracted the resolution in the hearing officer's decision.

Agency Response. The agency agrees. Subsection (m)(1) requires a finding of fact by the hearing officer related to protraction of the proceedings if either party requests such a finding.

Comment. Concerning §89.1185, a hearing officer opposed the ten days notice rule. The hearing officer commented that alternatively, and to avoid the continuance-and-delay scenario, perhaps this regulation could specify that hearing officer findings regarding protraction need not meet the 45-day deadline for issuing findings and conclusions on free appropriate public education issues.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, seven individuals agreed that hearing officers should consider all parties' good faith participation in resolving the issues involved with the complaint. Districts should be allowed to settle the disputes earlier in the dispute resolution process.

Agency Response. The agency agrees.

Comment. Concerning §89.1185, a hearing officer suggested amending subsection (m)(2) to reflect more specificity about what is being required of the parents' attorney. The hearing officer commented that otherwise the subsection will be ineffective because the pleading requirements are so minimal, or will be susceptible to challenge as unlawful because it imposes a pleading requirement that federal law omits.

Agency Response. The agency disagrees and believes the section's reference to federal regulations related to this requirement provides the necessary specificity.

Comment. Concerning §89.1185, a district and an education service center applauded the changes.

Agency Response. The agency agrees. However, revisions to rule wording have been made.

Comment. Concerning §89.1185, two individuals opposed permitting a local education agency (LEA) to convene an ARD after a protracted failure to fulfill its obligations. They commented that this is "unwarranted and will encourage LEAs to continue to be willfully noncompliant."

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, an individual opposed the change to subsection (p) citing that the U.S. Court of Appeals 5th Circuit has already rejected a 30-day statute of limitations and speculating that a 45-day statute will also be rejected.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, four individuals supported the provision of a 45-day appeal deadline.

Agency Response. The agency agrees.

Comment. Concerning §89.1185, a hearing officer commented that, "the regulations do not appear to contemplate whether hearing officers have authority to modify the 10-day implementation."

Agency Response. Further clarification will be provided through hearing officer training.

Comment. Concerning §89.1185, three individuals opposed the ten school days implementation requirement.

Agency Response. The agency disagrees and believes that the proposed changes to hearing procedures will improve the efficiency of the hearing process while maintaining equity in the system.

Comment. Concerning §89.1185, one individual agreed with the ten school days implementation requirement.

Agency Response. The agency agrees.

Comment. Concerning §89.1191, an individual stated they supported the rule section as proposed.

Agency Response. The agency agrees.

1. GENERAL PROVISIONS

19 TAC §89.1001

The amendment is adopted 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.

§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 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, after contacting the facility to offer services to eligible students with disabilities, the district determines that educational services are provided through a charter school, approved non-public school, or a facility operated private school, the district is not required to provide services. However, the district shall annually contact the facility to offer services to eligible students with disabilities.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100951

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701

2. CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW

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 adopted 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.

§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, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial, remedial, compensatory, and other services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation 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. The referral for a full and individual initial evaluation must be completed in accordance with Texas Education Code, §29.004, related to the 60 calendar day time line.

§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(b)(1)-(2) of this title (relating to Graduation Requirements) terminates a student's eligibility to receive services in accordance with this subchapter. An eligible student receiving special education services who is 21 years of age on September 1 of a school year shall be eligible for services through the end of that school year or until graduation with a regular high school diploma pursuant to §89.1070(b)(1)-(2) of this title, whichever comes first.

(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, but is not limited to, 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; 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 (c)(3) and (c)(12) 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:

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 other 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). Students with attention deficit disorder or attention deficit hyperactivity disorder are included under this category. The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on other 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 in a report by a licensed ophthalmologist or optometrist. 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 between the ages of 3-5 who is evaluated as having mental retardation, emotional disturbance, a specific learning disability, or autism may be described as noncategorical early childhood.

§89.1045.Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings.

(a)

A district shall invite the parents and adult student to participate as members of the admission, review, and dismissal (ARD) committee by providing written notice in accordance with 34 Code of Federal Regulations (CFR), §§300.345, 300.503, and 300.505, and Part 300, Appendix A.

(b)

A parent may request an ARD committee meeting at any mutually agreeable time to address specific concerns about his or her child's special education services. The school district must respond to the parent's request either by holding the requested meeting or by requesting assistance through the Texas Education Agency's mediation process. The district should inform parents of the functions of the ARD committee and the circumstances or types of problems for which requesting an ARD committee meeting would be appropriate.

§89.1049.Parental Rights Regarding Adult Students.

Unless parental rights have been terminated by judicial decree, the parent and student with a disability shall begin to share parental rights under the Individuals with Disabilities Education Act (IDEA) when the student reaches 18 years of age. Beginning at least one year before a student reaches 18 years of age, the student's individualized education program must include a statement that the student has been informed of his or her rights under IDEA, Part B, that will be shared with his or her parents.

§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 school district 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)

At least one general education teacher of the student (if the student is, or may be, participating in the general education environment) shall participate as a member of the ARD committee. 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 first ARD committee meeting 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 (IEP).

(a)

The individualized education program (IEP) developed by the admission, review, and dismissal (ARD) committee for each student with a disability shall comply with the requirements of 34 Code of Federal Regulations (CFR), §300.346 and §300.347, and Part 300, Appendix A.

(b)

The IEP must include a statement of any individual allowable accommodations in the administration of assessment instruments developed in accordance with Texas Education Code (TEC), §39.023(a)-(c), or district-wide assessments of student achievement that are needed in order for the student to participate in the assessment. If the ARD committee determines that the student will not participate in a particular state- or district-wide assessment of student achievement (or part of an assessment), the IEP must include a statement of:

(1)

why that assessment is not appropriate for the child; and

(2)

how the child will be assessed using a locally developed alternate assessment.

(c)

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 from the student's current IEP.

(d)

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 TEC, §30.002(e).

(e)

For students with autism/pervasive developmental disorders, information about the following shall be considered and, when needed, addressed in the IEP:

(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.

(f)

If the ARD committee determines that services are not needed in one or more of the areas specified in subsection (e)(1)-(7) of this section, the IEP must include a statement to that effect and the basis upon which the determination was made.

§89.1065.Extended School Year Services (ESY Services).

Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.

(1)

The need for ESY services 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:

(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 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 (IEP) objectives, the student has exhibited, or reasonably may be expected to exhibit, severe or substantial regression that cannot be recouped within a reasonable period of time. Severe or substantial regression means that the student has been, or will be, unable to maintain one or more acquired critical skills in the absence of ESY services.

(3)

The reasonable 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 may be justified without consideration of the period of time for recoupment of such skills. In any case, the period of time for recoupment shall not exceed eight weeks.

(4)

A skill is critical when the loss of that skill results, or is reasonably expected to result, in any of the following occurrences during the first eight weeks of the next regular school year:

(A)

placement in a more restrictive instructional arrangement;

(B)

significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum;

(C)

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;

(D)

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

(E)

loss of access to on-the-job training or productive employment as a result of regression in skills.

(5)

If the district does not propose ESY services for discussion at the annual review of a student's IEP, the parent may request that the ARD committee discuss ESY services pursuant to 34 CFR, §300.344.

(6)

If a student for whom ESY services were considered and rejected loses critical skills because of the decision not to provide ESY services, and if those skills are not regained after the reasonable 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.

(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 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 because the student receives care and treatment services under the auspices of other agencies.

(9)

Districts are not eligible for reimbursement for ESY services provided to students for reasons other than those set forth in this section.

§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 general education, including satisfactory performance on the exit level assessment instrument; or

(2)

The student has satisfactorily completed the minimum academic credit requirements for graduation applicable to students in general education and has been exempted from the exit-level assessment instrument because modifications and accommodations provided during instruction would render the result of the assessment invalid.

(c)

A student receiving special education services may also graduate and receive a regular high school diploma when 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:

(1)

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;

(2)

demonstrated mastery of specific employability skills and self-help skills which do not require direct ongoing educational support of the local school district; or

(3)

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.

(d)

A student receiving special education services may also graduate and receive a regular high school diploma upon the ARD committee determining that the student no longer meets age eligibility requirements and has completed the requirements specified in the IEP.

(e)

When considering graduation under subsection (c) 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.

(f)

Employability and self-help skills referenced under subsection (c) of this section are those skills directly related to the preparation of students for employment, including general skills necessary to obtain or retain employment.

(g)

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.

(h)

For students who receive a diploma according to subsection (c) of this section, the ARD committee shall determine needed educational services upon the request of the student or parent to resume services, as long as the student meets the age eligibility requirements.

§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). This section will expire on June 30, 2004.

(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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100950

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 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

The repeals are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100949

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701

4. SPECIAL EDUCATION FUNDING

19 TAC §89.1121, §89.1125

The amendments are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100948

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701

5. SPECIAL EDUCATION AND RELATED SERVICE PERSONNEL

19 TAC §89.1131

The amendment is adopted 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.

§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; the Texas Education Code (TEC), §§21.002, 21.003, and 29.304; or appropriate state agency credentials.

(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 pathologist.

(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, through one of the school district's instructional options, a shared services arrangement 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.

(5)

Teachers certified in the education of students with auditory impairments must be available to students with auditory impairments, including deaf-blindness, through one of the school district's instructional options, a regional day school program for the deaf, a shared services arrangement 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.

(6)

The following provisions apply to physical education.

(A)

When the ARD committee has made the determination and the arrangements are specified in the student's individualized education program (IEP), physical education may be provided by the following personnel:

(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 must be certified and may be assigned to work with eligible students, general and special education teachers, and related service personnel. Aides may also be assigned to assist students with special education transportation, 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)

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.

(e)

Orientation and mobility instruction must be provided by a certified orientation and mobility specialist (COMS) who is certified by the Academy for Certification of Vision Rehabilitation and Education Professionals or by the Association for Education and Rehabilitation of the Blind and Visually Impaired.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100947

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701

6. HEARINGS CONCERNING STUDENTS WITH DISABILITIES UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

19 TAC §§89.1151, 89.1155, 89.1160, 89.1165, 89.1170, 89.1175, 89.1180, 89.1185, 89.1190

The repeals are adopted 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.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100946

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701

7. RESOLUTION OF DISPUTES BETWEEN PARENTS AND SCHOOL DISTRICTS

19 TAC §§89.1150, 89.1151, 89.1165, 89.1170, 89.1180, 89.1185, 89.1191

The new sections are adopted 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.

§89.1185.Hearing.

(a)

The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than ten days, unless the parties agree otherwise.

(b)

Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved.

(c)

All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone.

(d)

Except as modified or limited by the provisions of 34 Code of Federal Regulations (CFR), §§300.507- 300.514, 300.521, or 300.528, or the provisions of §§89.1151-89.1191 of this subchapter, the Texas Rules of Civil Procedure shall govern the proceedings at the hearing and the Texas Rules of Evidence shall govern evidentiary issues.

(e)

Before a document may be offered or admitted into evidence, the document must be identified as an exhibit of the party offering the document. All pages within the exhibit must be numbered, and all personally identifiable information must be redacted from the exhibit.

(f)

The hearing officer may set reasonable time limits for presenting evidence at the hearing.

(g)

Upon request, the hearing officer, at his or her discretion, may permit testimony to be received by telephone.

(h)

Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion.

(i)

Hearings conducted under this subchapter shall be closed to the public, unless the parent requests that the hearing be open.

(j)

The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to each of the parties. The hearing officer shall instruct the reporter to delete all personally identifiable information from the transcription of the hearing.

(k)

Filing of post-hearing briefs shall be permitted only upon order of the hearing officer and only upon a finding by the hearing officer that the legal issues involved in the hearing are novel or unsettled in the State of Texas or the Fifth Circuit. Any post-hearing briefs permitted by the hearing officer shall be limited to the legal issues specified by the hearing officer.

(l)

The hearing officer shall issue a final decision, signed and dated, no later than 45 days after a request for hearing is received by the Texas Education Agency, unless the deadline for a final decision has been extended by the hearing officer as provided in subsection (m) of this section. A final decision must be in writing and must include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence presented at the hearing. The final decision shall be mailed to each party by the hearing officer. The hearing officer, at his or her discretion, may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision.

(m)

At the request of either party, the hearing officer shall include, in the final decision, specific findings of fact regarding the following issues:

(1)

whether the parent or the school district unreasonably protracted the final resolution of the issues in controversy in the hearing; and

(2)

if the parent was represented by an attorney, whether the parent's attorney provided the school district the appropriate information in the due process complaint in accordance with 34 CFR, §300.507(c).

(n)

In making a finding regarding the issue described in subsection (m)(1) of this section, the hearing officer shall consider the extent to which each party had notice of, or the opportunity to resolve, the issues presented at the due process hearing prior to the date on which the due process hearing was requested. If, after the date on which a request for a due process hearing is filed, either the parent or the school district requests that a meeting of the admission, review, and dismissal (ARD) committee of the student who is the subject of the due process hearing be convened to discuss the issues raised in the request for a due process hearing, the hearing officer shall also consider the extent to which each party participated in the ARD committee meeting in a good faith attempt to resolve the issue(s) in dispute prior to proceeding to a due process hearing.

(o)

A hearing officer may grant extensions of time for good cause beyond the 45-day period specified in subsection (l) of this section at the request of either party. Any such extension shall be granted to a specific date and shall be stated in writing by the hearing officer to each of the parties.

(p)

The decision issued by the hearing officer is final, except that any party aggrieved by the findings and decision made by the hearing officer, or the performance thereof by any other party, may bring a civil action with respect to the issues presented at the due process hearing in any state court of competent jurisdiction or in a district court of the United States, as provided in 20 United States Code (USC), §1415(i)(2), and 34 CFR, §300.512. A civil action brought in state or federal court under 20 USC, §1415(i)(2), and 34 CFR, §300.512, must be initiated no more than 45 days after the date the hearing officer issued his or her written decision in the due process hearing.

(q)

In accordance with 34 CFR, §300.514(c), a school district shall implement any decision of the hearing officer that is, at least in part, adverse to the school district in a timely manner within ten school days after the date the decision was rendered. School districts must provide services ordered by the hearing officer, but may withhold reimbursement during the pendency of appeals.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 14, 2001.

TRD-200100945

Criss Cloudt

Associate Commissioner, Accountability Reporting and Research

Texas Education Agency

Effective date: March 6, 2001

Proposal publication date: August 18, 2000

For further information, please call: (512) 463-9701