The Texas Education Agency (TEA) adopts amendments to §§101.1001, 101.1005, 101.1007, and 101.1009 and the repeal of §101.1011, concerning assessment. The amendments to §§101.1001, 101.1005, and 101.1009 and the repeal of §101.1011 are adopted without changes to the proposed text as published in the October 22, 2004, issue of the Texas Register (29 TexReg 9786) and will not be republished. The amendment to §101.1007 is adopted with changes to the proposed text. The sections address the participation of limited English proficient (LEP) students in state assessments. The adopted amendments and repeal are necessary to comply with federal legislation regarding LEP students and to provide clarification in the rules.

Commissioner's rules in 19 TAC Chapter 101, Subchapter AA, concerning the participation of LEP students in state assessments were adopted to be effective September 2001.

State legislation passed in 1995 required the commissioner of education to develop a way to evaluate the progress of LEP students who were eligible for exemption from the state-mandated assessments. This provided the impetus for the development of the Reading Proficiency Tests in English (RPTE). After seeking input from national experts and state stakeholders, the commissioner developed the RPTE, a test that would measure the progress LEP students make annually in learning to read in English.

The RPTE enables Texas schools to evaluate whether LEP students are making steady annual progress in English development during the time they qualify for an exemption from the state academic content area assessments. RPTE has been designed carefully to help educators understand more clearly what LEP students can and cannot comprehend at various stages of learning English. Educators who understand these stages of development are better able to help English learners progress from one stage of English development to the next. Educators are also able to use this information to adapt the academic instruction of the student to make it comprehensible. RPTE is currently administered to LEP students in Grades 3 - 12.

The No Child Left Behind Act of 2001 (NCLB) requires states to conduct annual statewide English language proficiency assessments in the domains of listening, speaking, reading, and writing to show the progress that limited English proficient students in kindergarten through Grade 12 make in learning the English language.

The following adopted amendments to 19 TAC Chapter 101, Subchapter AA, are necessary to comply with federal legislation and to provide clarification of state provisions.

Section 101.1001, Reading Proficiency Tests in English, is retitled English Language Proficiency Assessments and amended to reflect the federal requirements of NCLB for assessing the English language proficiency of students in additional domains and grades. No changes were made to this section since published as proposed.

Section 101.1005, Limited English Proficient Students at the Exit Level, is amended to remove the reference to end-of-course tests. No changes were made to this section since published as proposed.

Section 101.1007, Limited English Proficient Students at Grades Other Than the Exit Level, is amended to clarify exemptions for immigrant LEP students and exemption eligibility. A new subsection (c) is added to provide that the test administration materials will delineate the circumstances under which a student who exempted from the state academic skills assessments under §101.1007(b) will be assessed through alternative means in subjects and grades required by federal law or regulations. In response to public comment, the following changes were made to this section since published as proposed. Language was added in subsection (c) to clarify that exempt students who are assessed solely for federal accountability purposes will not be subject to the grade advancement requirements under the Student Success Initiative. Subsection (b) was modified to change the word adequate to inadequate to correct a typographical error.

Section 101.1009, Limited English Proficient Students Who Receive Special Education Services, is amended to update references to related TAC provisions. No changes were made to this section since published as proposed.

Section 101.1011, Clarification of Provisions, is repealed. It is no longer necessary because there are no inconsistencies between this section of the TAC and the provisions found in 19 TAC Chapter 89, Subchapter BB. No changes were made to this repeal since published as proposed.

Following is a summary of public comments received on the proposed amendments to 19 TAC Chapter 101, Subchapter AA, and corresponding agency responses.

Comment. The district test coordinator from Brownsville Independent School District (ISD) suggested that language be added to proposed §101.1007(c) to clarify that exempt students assessed solely for federal accountability purposes are not subject to the grade advancement requirements of the Student Success Initiative.

Agency response. The agency agrees and has added language to the section accordingly.

Comment. A representative from Texas City ISD identified a typographical error in §101.1007(b). The word adequate was used, when the intended word was inadequate.

Agency response. The agency agrees and has modified the section accordingly.

19 TAC §§101.1001, 101.1005, 101.1007, 101.1009

The amendments are adopted under the Texas Education Code (TEC), §39.023, which authorizes the commissioner of education to adopt rules concerning the exemption of limited English proficient students from the administration of assessment instruments.

The amendments implement the Texas Education Code, §39.023.

§101.1007.Limited English Proficient Students at Grades Other Than the Exit Level.

(a) In Grades 3 - 6, the language proficiency assessment committee (LPAC) shall determine whether a limited English proficient (LEP) student is administered the assessment of academic skills in English or in Spanish. A LEP student may be administered a Spanish version of the assessment of academic skills for a maximum of three years. If the LEP student is an immigrant, the number of LEP exemptions and administrations of the assessment in Spanish must not exceed three.

(b) In accordance with paragraphs (1) - (4) of this subsection, certain immigrant LEP students who have had inadequate schooling outside the U.S. may be eligible for an exemption from the assessment of academic skills during a period not to exceed their first three school years of enrollment in U.S. schools. The term "immigrant" in this subchapter is defined as a student who has resided outside the 50 U.S. states for at least two consecutive years.

(1) An immigrant LEP student who achieves a rating of advanced high on the state-administered reading proficiency tests in English during the student's first school year of enrollment in U.S. schools is not eligible for an exemption in the second or third school year of enrollment in U.S. schools. An immigrant LEP student who achieves a rating of advanced or advanced high on this assessment during the student's second school year of enrollment in U.S. schools is not eligible for an exemption in the third school year of enrollment in U.S. schools.

(2) During the first school year of enrollment in U.S. schools, the immigrant student may be granted a LEP exemption if the LPAC determines that the student has not had the schooling outside the U.S. necessary to provide the foundation of learning that Texas schools require and measure on the assessment, whether the foundation be in knowledge of the English language or specific academic skills and concepts in the subjects assessed.

(3) During the second and third school year of enrollment in U.S. schools, the immigrant student whose schooling outside the U.S. was inadequate and for whom a primary language assessment is not available may be granted a LEP exemption if the LPAC determines that the student lacks the academic language proficiency in English necessary for an assessment of academic skills in English to measure the student's academic progress in a valid, reliable manner.

(4) During the second and third school year of enrollment in U.S. schools, the immigrant student whose schooling outside the U.S. was inadequate and for whom a Spanish-version assessment is available is not eligible for a LEP exemption and must take the assessment in either English or Spanish unless:

(A) the student is in an English as a second language (ESL) program, which does not call for instruction in Spanish, and the LPAC determines that the student lacks the language proficiency in English and the academic instruction in Spanish and/or literacy in Spanish for the assessment in either English or Spanish to measure the student's academic progress in a valid, reliable manner; or

(B) the student is in a bilingual education program and the LPAC has documentation, including signed verification by the parent or guardian whenever possible, that there was an extensive period of time outside the U.S. in which the student did not attend school and that this absence of schooling resulted in such limited academic achievement and/or literacy that assessment in either English or Spanish is inappropriate as a measure for school accountability. The term "extensive period of time outside the U.S.," as used in this subparagraph, shall be defined in the test administration materials.

(c) Students exempted under subsection (b) of this section shall be administered assessments in subjects and grades required by federal law and regulations as delineated in the test administration materials. Exempt students assessed only for federal accountability purposes shall not be subject to the grade advancement requirements under the Student Success Initiative.

(d) A LEP student whose parent or guardian has declined the services required by the Texas Education Code, Chapter 29, Subchapter B, is not eligible for an exemption under subsection (b) of this section. The student shall take the assessments of academic skills in English and the English language proficiency assessments required by §101.1001 of this title (relating to English Language Proficiency Assessments).

(e) School districts may administer the assessment of academic skills in Spanish to a student who is not identified as limited English proficient but who participates in a two-way bilingual program if the LPAC determines the assessment in Spanish to be the most appropriate measure of the student's academic progress. However, the student may not be administered the Spanish-version assessment for longer than three years.

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 January 28, 2005.

TRD-200500382

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: February 17, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-1497

19 TAC §101.1011

The repeal is adopted under the Texas Education Code (TEC), §39.023, which authorizes the commissioner of education to adopt rules concerning the exemption of limited English proficient students from the administration of assessment instruments.

The repeal implements the Texas Education Code, §39.023.

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 January 28, 2005.

TRD-200500383

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: February 17, 2005

Proposal publication date: October 22, 2004

For further information, please call: (512) 475-1497

Subchapter CC. COMMISSIONER'S RULES CONCERNING IMPLEMENTATION OF TESTING PROGRAM

The Texas Education Agency (TEA) adopts an amendment to §101.3001, and the repeal of and new §101.3003, concerning assessment. The amendment, repeal, and new section are adopted without changes to the proposed text as published in the October 22, 2004, issue of the Texas Register (29 TexReg 9792) and will not be republished. The sections address the implementation of the testing program. The adopted amendment, repeal, and new section clarify transitional issues related to the Texas Assessment of Knowledge and Skills (TAKS), as specified by the 76th Texas Legislature, 1999, and establish rules for the implementation of the Grade 8 science test required by the 78th Texas Legislature, 2003.

Senate Bill (SB) 103, 76th Texas Legislature, 1999, mandated a new testing program of increased rigor, size, and scope. Planning for this new program, the TAKS, began in the fall of 1999, and it was fully implemented during the 2002 - 2003 school year. A series of rule actions have occurred to implement the new testing program since its enactment by the Texas Legislature in 1999.

The repeal of and new 19 TAC Chapter 101, Assessment, was subsequently adopted by the State Board of Education (SBOE) at its September 2001 meeting, with an effective date of November 15, 2001. The new SBOE rules set forth in 19 TAC Chapter 101, Subchapters A - E, include provisions relating to eligibility to receive a high school diploma. Beginning with the 2003 - 2004 school year, students who were enrolled in Grade 8 or a lower grade on January 1, 2001, must fulfill testing requirements for graduation with the Grade 11 exit level TAKS test.

Following this major rewriting of the SBOE assessment rules, an Attorney General's opinion was requested to clarify the respective roles and responsibilities of the SBOE and the agency as related to the statewide assessment program, authorized by TEC, Chapter 39, Subchapter B. In his March 12, 2002, letter in response to this request, then Attorney General John Cornyn also confirmed certain rulemaking authority of the commissioner of education for implementing the new testing program, as set forth in Section 9 of SB 103, 76th Texas Legislature, 1999.

TEC, §39.023, requires the commissioner to adopt rules for implementing the new testing program established by the SBOE in 19 TAC Chapter 101, Subchapters A - E. In accordance with SB 103, Section 9, and TEC, Chapter 39, Subchapter B, the commissioner adopted rules concerning implementation of the testing program in 19 TAC Chapter 101, Subchapter CC, to be effective February 16, 2003.

In order to clarify transitional issues regarding which cohort is required to take which exit level assessment, current 19 TAC §101.3003, Transitional Issues Related to New Assessment Program, is repealed and a new §101.3003, entitled Graduation Requirements, is added. The adopted new §101.3003 clarifies the following two situations.

First, students who are on an accelerated track and who fulfilled all graduation requirements other than passage of an exit level test before September 1, 2004, should fulfill their testing requirements for graduation with the exit level Texas Assessment of Academic Skills (TAAS) test. This applies to students regardless of whether they were enrolled in Grade 8 or a lower grade on January 1, 2001.

Secondly, all students who have already passed the Algebra I end-of-course (EOC), English II EOC, and either Biology or U.S. History EOC exams by spring 2002 have already satisfied the assessment requirement for graduation.

In addition, House Bill (HB) 411, 78th Texas Legislature, 2003, amended TEC, §39.023(a), to require that a science assessment instrument in Grade 8 be administered not later than the 2006 - 2007 school year. The legislation also requires that the results be included in evaluating the performance of school districts, campuses, and open-enrollment charter schools not later than the 2008 - 2009 school year. TEC, §39.023, requires the commissioner to adopt rules for implementing the new science assessment at Grade 8. The legislation also added §39.023(a)(7), which requires that students be assessed in any other subject and grade required by the federal government.

The adopted amendment to §101.3001, Implementation of New Assessment Instruments, adds a new subsection (b) to comply with TEC, §39.023, as amended by HB 411.

No comments were received regarding adoption of the amendment, repeal, or new section.

19 TAC §101.3001, §101.3003

The amendment and new section are adopted under the Senate Bill 103, Section 9, 76th Texas Legislature, 1999 (Acts of the 76th Texas Legislature, 1999, Chapter 397), which authorizes the commissioner of education to adopt rules for the implementation of Texas Education Code, §39.023.

The amendment and new section implement the Texas Education Code, §39.023 and §39.025 and Senate Bill 103, Section 9, 76th Texas Legislature, 1999.

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 January 28, 2005.

TRD-200500384

Cristina De La Fuente-Valadez

Director, Policy Coordination

Texas Education Agency

Effective date: February 17, 2005

Proposal publication date: October 22, 2004