PROPOSED RULES
 
 Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 1. ADMINISTRATION 
 Part X. Department of Information Resources 
  Chapter 201. Planning and Management of Information Resources Technologies 
  
  1 TAC sec.201.1, sec.201.5 
 
  The Department of Information Resources proposes amendments to sec.201.1 and 
sec.201.5, concerning the planning and management of information resources 
technologies. The amendments are necessary to establish the procedures for 
quality assurance review of major information resources project as mandated by 
Senate Bill 381 and the General Appropriations Act, enacted by the 73rd 
Legislature, Regular Session. 
 Marty Cassano, director of agency planning, 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. 
 Mr. Cassano also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be improved management and monitoring of significant 
information resources projects. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the sections as proposed. 
 Comments on the proposal may be submitted to John Hawkins, Department of 
Information Resources, P.O. Box 13564, Austin, Texas 78711, no later than 5 p. 
m. on February 18, 1994. Envelopes must be clearly marked "Formal Comment to 
Proposed Action Enclosed." 
 The amendments to the sections are proposed under Texas Civil Statutes, Article 
4413(32j), sec.9(a), which authorizes the department to adopt rules as necessary 
to carry out its responsibility under the Information Resources Management Act. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434569 
  Edward Serna 
 Interim Executive Director 
 Department of Information Resources 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 475-4714 
         
             
  TITLE 16. ECONOMIC REGULATION 
 Part I. Railroad Commission of Texas 
  Chapter 7. Gas Utilities Division 
  
  Substantive Rules 
 
  16 TAC sec.7.42 
 
  The Railroad Commission of Texas proposes to amend sec.7.42, concerning the 
gas utility tax to conform to statutory changes to Texas Civil Statutes, Article 
6060, adopted during the 73rd legislative session, 1993, and during the 72nd 
legislature, first called session, 1991. The proposed amendment would also 
correct nomenclature in the rule. 
 The commission proposes to make the interest rate on delinquent taxes 12% per 
annum, simple interest, for delinquencies occurring on or after January 1, 1994; 
to make the interest rate on delinquent taxes pending during the period from 
September 1, 1991, to December 31, 1993, 12% per annum, compounded monthly; and 
to make the interest rate on delinquent taxes pending during the period prior to 
September 1, 1991, 10% per annum, simple interest. The current interest rate 
specified in the commission's rules is 10% per annum, simple interest. 
 Edward Abrahamson, Supervising Auditor, Gas Utility Audit, Transportation/Gas 
Utilities Division, has determined that for the first five-year period the 
amendment will be in effect, there will be no fiscal implications for the state 
government as a result of enforcing or administering the section. There will, 
however, be a slight increase in state revenues from the increase in the 
interest rate from 10% per annum to 12% per annum, however, there will also be a 
slight decrease in potential state revenue from the change from 12% interest, 
compounded monthly, to 12% per annum, simple interest. The exact amount of these 
impacts cannot be determined at this time. There will be no fiscal implications 
for local governments. 
 The cost of compliance with the section will be the same for small businesses 
and large businesses, with the cost being dependent on the amount of tax which 
is delinquent, the period during which the tax is delinquent, and the length of 
time the tax is delinquent. 
 Mr. Abrahamson has further determined that for each of the first five years the 
rule as amended is in effect, the public benefit anticipated as a result of 
enforcing the rule as amended will be to recover from utilities owing delinquent 
taxes interest computed at the rate required by law. There is no anticipated 
economic benefit to persons who would be required to comply with the proposed 
section. 
 Comments on the proposal may be submitted to Edward Abrahamson, Supervising 
Auditor, Gas Utility Audit, Transportation/Gas Utilities Division, Railroad 
Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be 
accepted for 30 days after publication in the Texas Register. 
 The amendment is proposed under Texas Civil Statutes, Article 6060, which gives 
the Railroad Commission of Texas the authority to adopt rules necessary to the 
administration of Article 6060 and to the collection and enforcement of the 
taxes specified therein. The proposed amendment implements statutory changes to 
Texas Civil Statutes, Article 6060, adopted during the 73rd legislative session, 
1993, and during the 72nd legislature, first called session, 1991. 
 The following is the article affected by this proposed amendment: sec.7.42, 
Texas Civil Statutes, Article 6060, as amended. 
 
 
  sec.7.42. Gas Utility Tax. 
 
  (a)-(e) (No change.) 
   
  (f) Enforcement and Penalties. Each gas utility liable for the gas utility tax 
shall be subject to the enforcement and penalty provisions set forth in Texas 
Civil Statutes, Article 6060. Pursuant to that article, a penalty in the amount 
of 5.0% of the tax due shall be imposed on any person who fails to make a report 
or pay a tax as required under law. An additional penalty of 5.0% of the tax due 
shall be imposed on any person who fails to make a report or pay a tax as 
required before the 30th day after the date the report or tax payment is due. If 
a person fails to both make the report and pay the tax for a reporting period, 
only the penalty and additional penalty as applicable, for failure to make the 
report is imposed. If the amount of a penalty or additional penalty computed as 
otherwise provided by this subsection is less than $5.00, the amount of the 
penalty or additional penalty is $5.00. <nl>Any<ol> [a delinquent] gas utility 
tax <nl>delinquent during the period commencing on or after January 1, 1994, 
shall draw<ol> [draws] simple interest, at the rate of <nl>12%<ol> [10%] per 
year beginning on the 60th day after the date the tax becomes delinquent until 
the tax is paid. <nl>Any gas utility tax delinquent during the period commencing 
on September 1, 1991, and ending December 31, 1993, shall draw interest at the 
rate of 12% per year, compounded monthly, beginning on the 60th day after the 
date the tax became delinquent until December 31, 1993, or until the tax is 
paid, whichever is first. Any gas utility tax delinquent during any period 
before September 1, 1991, shall draw interest at the rate of 10% per year, 
beginning on the 60th day after the date the tax became delinquent until August 
31, 1991, or until the tax is paid, whichever is first. <ol> The tax is 
considered paid when received by the commission in accordance with subsection 
(b) of this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 11, 1994. 
 TRD-9434561 
  Mary Ross McDonald 
 Assistant Director, Legal Division-Gas Utilities/LP-Gas Section 
 Railroad Commission of Texas 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-7018 
         
                 Part IX. Texas Lottery Commission 
  Chapter 401. Administration of the State Lottery Act 
  
  Subchapter F. ADA Requirements 
 
  16 TAC sec.sec.401.401-401.408 
 
  The Texas Lottery Commission proposes new sec.sec.401.401-401.408, concerning 
the compliance of lottery licensees and applicants with the Americans with 
Disabilities Act (ADA) in order to have all locations where lottery tickets are 
sold accessible to and usable by people with disabilities. The Texas Lottery Act 
requires an individual, partnership, or corporation that obtains a sales agent's 
license to certify that the physical location where lottery tickets will be sold 
has complied with the ADA. The ADA is federal civil rights legislation that can 
be enforced by the filing of complaints with the federal courts or with federal 
regulatory agencies. It is the express intent of the Texas Lottery Commission to 
encourage and assist Texas businesses in achieving the goals of the ADA by 
ensuring that the lottery sales agents' establishments are accessible to and 
usable by lottery players with disabilities. Notwithstanding the fact that the 
agency cannot directly enforce the ADA, it will deny an application for a 
license or suspend or revoke the license of a sales agent who does not comply 
with the requirements of the Texas Lottery Act and the subchapter. 
 The agency proposes to conduct on-site inspections of each applicant for 
compliance with this subchapter prior to granting a permanent license. The 
agency proposes an administrative hearings process to allow a complainant to 
request a review of the communications practices and physical facilities as they 
relate to the conduct of lottery activities by lottery licensees and applicants. 
An agency employee who has completed ADA accessibility training will inspect the 
retailer's facility. As noted, the agency is not empowered to enforce directly 
the ADA, and a ruling from the agency that a retailer or applicant has complied 
with these administrative rules does not ensure that a retailer or applicant is 
in full compliance with the ADA accessibility guidelines promulgated under 
federal law. 
 If the agency determines that a lottery licensee or applicant is not in 
compliance with this subchapter, the licensee or applicant will be so notified 
and will be given a 60-day period to correct all deficiencies, and failure to do 
so will lead to the denial of an application for a license or the suspension or 
revocation of the license. If within this 60-day period, the licensee or 
applicant has not eliminated the identified deficiencies but has submitted a 
written request for an extension of time, the agency may grant a 30-day 
extension for good cause. 
 Rick Sookiasian, budget analyst, has determined that for the first five-year 
period the sections are in effect there will be a significant fiscal impact on 
the state government as a result of enforcing or administering the sections. The 
estimated additional cost for the first five-year period is as follows: Fiscal 
Year 1994 $1,322,740.09; Fiscal Year 1995 $1,201,490.00; Fiscal Year 1996 
$360,500; Fiscal Year 1997 $180,223; Fiscal Year 1998 $180, 223. There will be 
no significant fiscal impact on local government; and, there will be no effect 
on local employment or the local economy. 
 Mr. Sookiasian also has determined that for each of the first five years the 
rules are in effect the public benefit anticipated as a result of enforcing the 
rules will be in allowing the agency to administer the lottery in a manner 
consistent with maximum public access and convenience. At this time it is 
impossible to determine the anticipated economic cost to small businesses and 
persons who are required to comply with the sections because until the 
inspections occur the agency has no way of knowing what actions will need to be 
taken by such businesses and entities to be in compliance with the sections. 
 Comments on the proposal may be submitted to Kimberly L. Kiplin, General 
Counsel, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630. 
 The new sections are proposed under Texas Civil Statutes, Article 179g, 
sec.2.02, which provides the Texas Lottery Commission with the authority to 
promulgate rules and regulations. 
 No other article is affected by these proposed new rules. 
 
 
  sec.401.401. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. 
   
   ADA-The Americans with Disabilities Act of 1990 (42 United States Code, 
sec.sec.12101-12213 and 47 United States Code, sec.225 and sec.611). 
   
   Applicant-A person who has filed an application for a sales agent's license 
with the Lottery. 
   
   Disability-With respect to an individual, a physical or mental impairment 
that substantially limits one or more of the major life activities of such 
individual; having had a record of such an impairment; or being regarded as 
having such an impairment. 
   
   Lottery licensed facility-A place of public accommodation operated by an 
applicant Lottery retailer, including all or any portion of buildings, 
structures, sites, complexes, equipment, walks, passageways, parking lots, or 
other real or personal property, including the site where the building, 
property, structure, or equipment is located, to the extent used in the conduct 
of lottery activities. 
   
   Lottery retailer -Any person or entity licensed under the State Lottery Act. 
   
   Readily achievable -Easily accomplished and able to be carried out without 
much difficulty or expense. In determining whether an action is readily 
achievable, factors to be considered include: 
 
  (A)  the nature and cost of the action needed under this part; 
   
  (B) the overall financial resources of the site or sites involved in the 
action; the number of persons employed at the site; the effect on expenses and 
resources; legitimate safety requirements that are necessary for safe operation, 
including crime prevention measures; or the impact otherwise of the action upon 
the operation of the site; 
   
  (C) the geographic separateness and the administrative or fiscal relationship 
of the site or sites in question to any parent corporation or entity; 
   
  (D) if applicable, the overall financial resources of any parent corporation 
or entity with respect to the number of its employees; the number, type, and 
location of its facilities; and 
   
  (E) if applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and functions of 
the workforce of the parent corporation or entity. 
     
   Undue burden-Significant difficulty or expense. In determining whether an 
action would result in an undue burden, factors to be considered include: 
 
  (A) the nature and cost of the action; 
   
  (B) the overall financial resources of the site or sites involved in the 
action; the effect on expenses and resources; legitimate safety requirements 
that are necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site; and 
   
  (C) if applicable, the overall financial resources of any parent corporation 
or entity; the overall size of the parent corporation or entity with respect to 
the number of its employees; and the number, type, and location of facilities. 
 
     
  sec.401.402. General Requirements. 
 
  (a) Prohibition of discrimination. No lottery retailer shall discriminate 
against any individual on the basis of disability in the full and equal 
enjoyment of lottery related goods, services, facilities, privileges, 
advantages, or accommodations of any lottery licensed facility. 
   
  (b) Integrated accessibility. A lottery licensed facility shall afford lottery 
related goods, services, facilities, privileges, advantages, and accommodations 
to any individual with a disability in the most integrated setting appropriate 
to the needs of the individual. 
   
  (c) Lottery licensed facility located in private residences. 
 
  (1)  When an applicant/lottery retailer is located in a private residence, the 
portion of the residence used exclusively as a residence is not covered by this 
subchapter, but that portion used exclusively in the operation of the lottery 
licensed facility or that portion used both for the lottery licensed facility 
and for residential purposes is covered by this subchapter. 
   
  (2)  The portion of the residence covered under paragraph (1) of this 
subsection extends to those elements used to enter the lottery licensed 
facility, including the homeowner's front sidewalk, if any, the door or 
entryway, and hallways; and those portions of the residence, interior or 
exterior, available to or used by customers or clients, including restrooms. 
     
  (d) The agency shall inspect the site of each applicant for compliance with 
this subchapter prior to granting a permanent license. The agency will not grant 
a permanent license to an applicant who is not in compliance with this 
subchapter. For purposes of this subsection, the provisions of sec.sec.401. 401-
401.408 of this title (relating to ADA Requirements) apply. 
   
  (e)  The agency shall inspect the site of each lottery retailer for compliance 
with this subchapter. 
 
     
  sec.401.403. Readily Achievable Barrier Removal. 
 
  (a) General. An applicant/lottery retailer shall remove architectural and 
communication barriers in a lottery licensed facility, where such removal is 
readily achievable. 
   
  (b) Examples. Examples of readily achievable steps to remove barriers include, 
but are not limited to, the following actions: 
 
  (1) installing ramps; 
   
  (2) making curb cuts in sidewalks and entrances; 
   
  (3) creating designated accessible parking spaces; 
   
  (4)  widening aisles and doors; 
   
  (5) rearranging tables, chairs, vending machines, display racks, and other 
fumiture; 
   
  (6) installing offset hinges to widen doorways; 
   
  (7) installing accessible door hardware; and/or 
   
  (8) modification of certain exclusionary policies such as: 
 
  (A) allowing service animals to enter the facility; and/or 
   
  (B) providing alternate forms of communication with hearing impaired 
individuals. 
 
         
  sec.401.404. Priority of ADA Compliance by Lottery Licensees.  An 
applicant/lottery retailer will take readily achievable measures to comply with 
the barrier removal requirements of this subchapter in accordance with the 
following order of priorities. 
 
  (1) First, an applicant/lottery retailer will take measures to provide access 
to a lottery licensed facility from public sidewalks, parking, or public 
transportation. These measures include, for example, installing an entrance 
ramp, widening entrances, and providing accessible parking spaces. 
   
  (2) Second, an applicant/lottery retailer will take measures to provide access 
to those areas of a lottery licensed facility where lottery goods and services 
are made available to the public. 
   
  (3) Third, an applicant/lottery retailer will take any other reasonable 
measures necessary to provide access to lottery goods and services. 
 
     
  sec.401.405. Alternatives to Barrier Removal. Where an applicant/lottery 
retailer can demonstrate that barrier removal in its lottery licensed facility 
is not readily achievable in conjunction with federal guidelines, the 
applicant/lottery retailer shall make lottery related goods, services, 
facilities, privileges, advantages, or accommodations available through 
alternative methods, if those methods are readily achievable. Examples of 
alternatives to barrier removal include, but are not limited to, the following 
actions: 
 
  (1) providing curb service; and/or 
   
  (2) relocating activities to accessible licensed locations. 
 
     
  sec.401.406. Future Alterations to a Lottery Licensed Facility.  Any 
alteration to a lottery licensed facility shall be made so as to ensure that, to 
the maximum extent feasible, the altered portions of the facility are readily 
accessible to and usable by individuals with disabilities. 
 
   
  sec.401.407. Complaints Relating to Non-Accessibility. 
 
  (a) The agency will designate a specific employee or group of employees to 
receive and process all accessibility complaints concerning lottery retailers. 
Complaints must be in writing and, where possible, submitted on an agency ADA 
complaint form. As soon as practical, but not later than 30 days after the 
filing of a complaint, each complaint filed with the agency will be investigated 
by agency personnel who have completed ADA accessibility training developed and 
administered by the agency, which training shall be based upon the text of the 
ADA, related rules and regulations promulgated by the federal government, and 
any technical assistance materials issued by the United States Department of 
Justice. As soon as practicable but not later than 15 days after the completion 
of the investigation, a letter of non-compliance will be issued to the lottery 
retailer/applicant and the complainant that filed the original complaint, if 
applicable, the agency determines that the applicant/lottery retailer is not in 
compliance with this subchapter. Regardless of whether a complaint has been 
filed, the agency will issue a letter of non-compliance within 15 days after the 
completion of an onsite inspection of the applicant/lottery retailer's physical 
location if the agency determines that the applicant/lottery retailer is not in 
compliance with this subchapter. 
   
  (b) If the letter of non-compliance shows deficiencies in the communication 
practice or accessibility of the applicant/lottery retailer's physical location, 
the applicant/lottery retailer shall submit a plan to the agency within 30 days 
of the issuance of the letter of non-compliance. The plan shall describe in 
detail how the applicant/lottery retailer will achieve compliance with this 
subchapter within 60 days of the issuance of the letter of non-compliance. The 
agency may grant the applicant/lottery retailer additional time to submit the 
plan for good cause. Within ten days of the submission of the plan to the 
agency, the agency shall notify the applicant/lottery retailer of the agency's 
acceptance or rejection of the plan, and the reasons for such acceptance or 
rejection. Readily achievable modifications must be made within 60 days of the 
date the letter of non-compliance is mailed to the lottery retailer. If within 
the 60 days, the applicant/lottery retailer has not eliminated the deficiencies 
cited in the letter of non-compliance, but has submitted a written request for 
an extension of time, the agency may grant a 30-day extension for good cause. 
Notice of this extension will be sent to the complainant, if applicable, and the 
applicant/lottery retailer and any such extension will commence immediately upon 
expiration of the first 60-day period. 
   
  (c) If the corrective action taken by the applicant/lottery retailer corrects 
the deficiencies specified in the letter of non-compliance as originally issued 
or as later revised or reissued or if the on-site inspection of the 
applicant/lottery retailer's physical location reveals compliance with this 
subchapter, the agency will issue a notice of apparent compliance. Until this 
notice is issued, a complaint will be considered pending. 
   
  (d) Failure to make readily achievable modifications within the required time 
period will result in the initiation of proceedings to deny an application for a 
license or to suspend or revoke the lottery license by the agency pursuant to 
the procedural requirements of state law. 
   
  (e) The standards and priorities contained in sec.401.404 of this title 
(relating to Priority of ADA Compliance by Lottery Licensees) will be utilized 
by the agency in determining the applicant/lottery retailer's compliance with 
this subchapter. A license will be suspended if the agency determines that the 
lottery retailer has made significant progress toward correcting deficiencies 
listed in the compliance report under the order of priorities contained in 
sec.401.404 of this title but has not completed readily achievable barrier 
removal. If the agency determines that the retailer has not made a good faith 
effort to correct the deficiencies listed in the compliance report, this 
inaction will result in the revocation of the lottery license for that lottery 
licensed facility. 
   
  (f) While proceedings to suspend or revoke a lottery retailer's license are 
pending pursuant to this subchapter, and until a notice of apparent compliance 
is issued pursuant to subsection (c) of this section, the agency shall withhold 
incentive payments from the lottery retailer. In addition, if a license is 
revoked pursuant to this subchapter, and incentive payments and other privileges 
have been withheld from the affected retailer pending review of the complaint, 
the lottery retailer forfeits any claim to such incentive payments or other 
privileges. 
 
     
  sec.401.408. Requests for Hearings. 
 
  (a) If the agency proposes the denial of an application for a license or the 
suspension or revocation of a lottery retailer's license pursuant to this 
subchapter, the agency shall give the applicant/lottery retailer written notice 
of the time and place of the administrative hearing not later than the 20th day 
before the date of the hearing. Issues in controversy in the hearing will 
include, but are not limited to: the letter of non-compliance prepared by the 
agency, whether the requested modifications are readily achievable, and whether 
reasonable substituted modifications will fulfill the requirements of this 
Chapter. 
   
  (b) If upon the receipt of the notice of apparent compliance the complainant 
is not satisfied with the suggested modifications to the lottery retailer's 
facility and can demonstrate that further steps are necessary to correct 
accessibility problems, the original complainant may request an administrative 
hearing by filing a written request with the agency within 15 days of the date 
shown on the face of the notice of apparent compliance; a copy of such written 
request must be delivered to the affected retailer. The agency, the complainant, 
and the retailer will be parties to the administrative hearing. Issues in 
controversy in the hearing will include, but are not limited to: the compliance 
report prepared by the agency, whether additional modifications should be 
required, whether such additional modifications are readily achievable, whether 
the modifications in the compliance report are readily achievable, and whether 
reasonable substituted modifications will fulfill the requirements of this 
subchapter. The compliance report will be reissued, revised, or withdrawn in 
accordance with the outcome of the hearing, and the applicant/lottery retailer 
will then be allowed 60 days to take necessary corrective action. 
   
  (c) The administrative hearing authorized by this section shall be a contested 
case as provided by the Administrative Procedure and Texas Register Act and the 
Commission's Rules of Practice and Procedure, Texas Administrative Code, Title 
16, Part IX, Chapter 401. All relevant rules of evidence and time limits 
established in those rules shall apply to hearings conducted under this 
subchapter. The scope of judicial review of a decision in a contested case under 
this subchapter shall be under the substantial evidence rule. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 11, 1994. 
 TRD-9434510 
  Kimberly L. Kiplin 
 General Counsel 
 Texas Lottery Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 323-3791 
         
                   
  TITLE 19. EDUCATION 
 Part II. Texas Education Agency 
  Chapter 61. School Districts 
  
  Subchapter C. Pupil Relationship 
 
  19 TAC sec.61.49 
 
  The Texas Education Agency (TEA) proposes new sec.61.49, concerning the safe 
school checklist, to comply with Senate Bill 213, 73rd Legislature. The Bill 
requires the State Board of Education to develop and disseminate a safe school 
checklist a school district may use to assess a school's safety strengths and 
weaknesses. 
 Linda Cimusz, executive deputy commissioner for curriculum, assessment, and 
professional development, has determined that for the first five-year period the 
rule is in effect there will be fiscal implications as a result of enforcing or 
administering the rule. The effect on state government will be an estimated 
additional cost of $4,000 in fiscal years 1994 and 1996. The effect on local 
government (school districts) cannot be accurately determined at this time. 
School districts are not required to administer the checklist. Districts 
electing to use the checklist will incur costs for reproducing and distributing 
the checklist. Districts and campuses also may incur immediate and long-term 
costs based on the checklist findings. 
 Ms. Cimusz and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be that campuses may improve safety procedures. 
 There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the rule as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed rule submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rule has been published in the Texas Register. 
 The new rule is proposed under the Texas Education Code,  s21.938, which 
authorizes the State Board of Education to develop by rule a model safe school 
checklist a school district may use to assess a school's safety strengths and 
weaknesses. 
 
 
  sec.61.49. Safe School Checklist. 
 
  (a) All school districts are encouraged to administer the Safe School 
Checklist to assess a school's strengths and weaknesses. 
   
  (b) The purpose of the checklist is to help districts examine their security 
needs and formulate action plans to provide a safe and secure environment for 
students, staff, and the public. 
   
  (c)  The checklist will be disseminated initially to all school districts and, 
subsequently, will be distributed biannually. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434570 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
               Chapter 89. Adaptations for Special Populations 
  
  Subchapter A. State Plan for Educating Limited English Proficient Students 
 
  19 TAC sec.89.6 
 
  The Texas Education Agency (TEA) proposes an amendment to sec.89.6, concerning 
the state plan for educating limited English proficient students. The amendment 
clarifies and simplifies procedures for testing and classifying students for 
bilingual education/English as a second language (ESL) programs. 
 J. R. Cummings, executive deputy commissioner for education of special 
populations and adults, has determined that for the first five-year period the 
rule is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the rule. 
 Mr. Cummings and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be that districts will have flexibility in choosing from among a variety of 
options for student assessment and program evaluation. The rule also will 
facilitate district decisions to eliminate use of norm-referenced tests 
completely. Students completing the bilingual/ESL program will be held to a 
standard of passing a criterion-referenced assessment instrument rather than 
mastery of all objectives. Students will benefit from standardized criteria. 
 There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the rule as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed amendment submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rule has been published in the Texas Register. 
 The amendment is proposed under the Texas Education Code, sec.21.455, which 
authorizes the State Board of Education to adopt by rule standardized criteria 
for identifying, assessing, and classifying students of limited English 
proficiency who are eligible for entry into or exit from a bilingual/ESL 
program. 
 
 
  sec.89.6. Testing and Classification of Students. 
 
  (a) For identifying limited English proficient students, districts shall 
administer to each student who has a language other than English as identified 
on the home language survey: 
 
  (1) in [grades] prekindergarten through <nl>Grade <ol> 12, an agency-approved 
oral language proficiency test; and 
   
  (2) in <nl>Grades 2-12<ol> [grades two through 12], the English reading and 
English language arts sections from the student assessment instrument required 
in the Texas Education Code,  <nl>sec.35.023<ol> [sec.21.551] , or another test 
approved by the State Board of Education. 
     
  (b)  Districts which provide a bilingual education program shall administer an 
oral language proficiency test in the home language of the students who are 
eligible for being served in the bilingual education program. If the home 
language of the students is Spanish, the district shall administer the Spanish 
version of the agency-approved oral language proficiency test which was 
administered in English. If the home language of the students is other than 
Spanish, the district shall determine the students' level of proficiency using 
informal oral language assessment measures. 
   
  (c) All the oral language proficiency testing shall be administered by 
professionals or paraprofessionals who are proficient in the language of the 
test, and are trained in language proficiency testing. 
   
  (d) The grade levels and the scores on each test which shall identify a 
student as limited English proficient shall be established by the State Board of 
Education. The commissioner of education shall review the approved list of 
tests, grade levels, and scores at least annually, and shall recommend any 
needed changes to the board. 
   
  (e) Students with a language other than English shall be administered the 
required oral language proficiency test within four weeks of their enrollment. 
Norm-referenced assessment instruments, however, shall be administered only 
within the established norming period. 
   
  (f) For entry into or placement within a bilingual education or English as a 
second language program, a student shall be identified as limited English 
proficient using the following criteria: 
 
  (1) at [grades] prekindergarten through <nl>Grade <ol> 12, the score on the 
English oral language proficiency test is below the level designated for 
indicating limited English proficiency under subsection (d) of this section; or 
   
  (2) at <nl>Grades 2-12<ol> [grades two through 12]: 
 
  (A) the student's ability in English is so limited that the administration of 
the English student assessment instrument required in the Texas Education Code, 
<nl>sec.35.023 <ol> [sec.21.551], or other test approved by the State Board of 
Education, at his or her grade level is not valid; or 
   
  (B) the student's score on either the English reading or the English language 
arts sections of the student assessment instrument required in the Texas 
Education Code, <nl> s35.023<ol> [sec.21.551], or another test approved by the 
State Board of Education, at his or her grade level is below the 40th 
percentile; or 
     
  (3) in the absence of data required in paragraph (2) of this subsection, 
evidence that the student is not academically successful as defined in 
subsection (j) of this section. 
     
  (g)  Within <nl>the<ol> four weeks of their initial enrollment in the 
district, students shall be identified as limited English proficient and entered 
into the required bilingual education or English as a second language program. 
   
  (h) For exit from a bilingual education or English as a second language 
program, a student: 
 
  (1) shall be classified as English proficient when he or she scores at or 
above the 40th percentile on both the English reading and the English language 
arts sections of the norm-referenced assessment instrument required in the Texas 
Education Code,  <nl>sec.35.023,<ol> [sec.21.551;] or <nl>another English 
standardized test approved by the State Board of Education for this purpose; 
   
  (2) may be classified as English proficient at the end of the school year in 
which a student would be able to participate equally in a regular all-English 
instructional program as determined by: 
 
  (A) a <nl>passing<ol> [mastery] of the criterion-referenced assessment 
instrument <nl>for reading and writing<ol> required in the Texas Education Code, 
<nl>sec.35.023<ol> [sec.21.551], at grade level; and 
   
  (B) tests administered at the end of each school year to determine the extent 
to which the student has developed oral and written language proficiency and 
specific language skills in both the student's primary language and English<nl>; 
or<ol> [.] 
     
  <nl>(3) may be classified as English proficient as determined by criteria 
which meet the requirements outlined in the Texas Education Code, sec.21.455, 
and  s89.14 of this title (relating to Local Plan). 
     
  (i) A student may not be exited from the bilingual education or English as a 
second-language program in [grades] prekindergarten through <nl>Grade 1<ol> 
[one]. 
   
  (j) For determining whether a student who has been exited from a bilingual 
education or English as a second language program is academically successful, 
the following criteria shall be used at the end of the school year: 
 
  (1)  the student demonstrates <nl>passing <ol> [mastery] in English of the 
criterion-referenced assessment instrument required in the Texas Education Code,  
<nl>sec.35.023<ol> [sec.21.551], for the grade level as applicable; and 
   
  (2) the student has passing grades in all subjects and courses taken. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434571 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
               
  Subchapter G. Special Education 
 
  The Texas Education Agency (TEA) proposes amendments to  ssec.89.203, 89. 211, 
89.213-89.218, 89.220-89.224, 89.226, 89.229, 89.233, 89.235, 89.236, 89. 238, 
89.239, 89.242, 89.244, 89.250, and 89.252-89.254, and new sec.89.219 and 
sec.89.225, concerning special education. The amendments and new rules are 
necessary to comply with the Individuals with Disabilities Education Act (IDEA) 
, the Texas State Plan for IDEA, legislation passed by the 73rd Legislature, and 
changes in State Board of Education policy concerning the use of nationally-
certified school psychologists. 
 Jay Cummings, executive deputy commissioner for education of special 
populations and adults, has determined that for the first five-year period the 
rules are in effect there will be fiscal implications as a result of enforcing 
or administering the rules. There will be no effect on state government. The 
effect on local government (school districts) cannot be accurately determined at 
this time. School districts may increase spending as a result of changes to 
federal regulations regarding assistive technology devices and changes to state 
statute regarding special education instructional arrangements. 
 Mr. Cummings and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the rules 
are in effect the public benefit anticipated as a result of enforcing the rules 
will be that board rules will comply with state and federal statutes. The 
amendments also will provide school districts flexibility in hiring personnel to 
provide psychological services. 
 There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the rules as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed amendments and new rules submitted 
under the Administrative Procedure Act and the Texas Register Act must be 
received by the commissioner of education not more than 15 calendar days after 
notice of a proposed change in the rules has been published in the Texas 
Register. 
   
  General Provisions 
 
  19 TAC sec.89.203 
 
  The amendment is proposed under the Texas Education Code, sec.21.501, which 
authorizes the State Board of Education to develop and modify as necessary a 
statewide design for delivering services to handicapped children in Texas that 
includes rules for administering and funding the special education program. 
 
 
  sec.89.203. Compliance Monitoring. <ol> The commissioner of education shall 
establish a procedure whereby information is obtained from parents of students 
<nl>receiving<ol> [in] special education <nl>services <ol> for use in the 
monitoring process. The procedure shall be structured such that a representative 
sample of parents of students <nl>receiving<ol> [in] special education 
<nl>services <ol> will have an opportunity to provide information which may 
identify particular areas where the program seems to be operating in accordance 
with compliance requirements or where the program may have potential systemic 
compliance problems. School districts shall provide the assistance to identify 
and notify parents in order to obtain the necessary information. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434572 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
           
  Clarification of Provisions in Federal Regulations and State Law 
 
  19 TAC sec.sec.89.211, 89.213-89.229, 89.233, 89.235, 89.236, 89.238, 89.239, 
89.242, 89.244 
 
  The amendments and new rules are proposed under the Texas Education Code, 
sec.21.501, which authorizes the State Board of Education to develop and modify 
as necessary a statewide design for delivering services to handicapped children 
in Texas that includes rules for administering and funding the special education 
program. 
 
 
  sec.89.211. Eligibility Criteria. 
 
  (a) Special education services. To be eligible to receive special education 
services, a student must have been determined to have one or more of the 
<nl>disabilities<ol> [handicapping conditions] listed in federal regulations or 
in state law or both. 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. Students ages three through 
five who <nl>are evaluated as having mental retardation, emotional disturbance, 
a specific learning disability, or autism may be described <ol> [meet the 
eligibility criteria for mentally retarded, emotionally disturbed, learning 
disabled, or autistic may be identified] as noncategorical early childhood. 
   
  (b) <nl>Physical disability.<ol> [Physically handicapped]. <nl>Physical 
disability<ol> [Physically handicapped] shall include the following: 
 
  (1) <nl>orthopedic impairment <ol> [orthopedically handicapped]-a student who 
has been determined by a licensed physician to have a severe orthopedic 
impairment; 
   
  (2) other health <nl>impairment<ol> [impaired]-a student who has been 
determined by a licensed physician to have limited strength, vitality, or 
alertness, due to chronic or acute health problems. 
     
  (c) <nl>Auditory impairment<ol> [Auditorially handicapped]. One who has been 
determined to have a serious hearing loss even after corrective medical 
treatment or use of amplification. This determination shall have been made by an 
otological examination performed by an otologist or a licensed medical doctor 
with documentation that an otologist is not reasonably available. An 
audiological evaluation by a certified audiologist shall also be conducted. This 
evaluation 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. 
   
  (d) <nl>Visual impairment<ol> [Visually handicapped]. 
 
  (1) A student who <nl>has a visual impairment<ol> [is visually handicapped] is 
one who: 
 
  (A) (No change.) 
   
  (B) has been determined by the following assessments to have a need for 
special services: 
 
  (i) a functional vision evaluation by a professional certified in the 
education of students with visual <nl>impairments<ol> [handicaps] 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 <nl>impairments<ol> [handicaps]. The 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 assessment in this area. 
       
  (2)  A student who <nl>has a visual impairment<ol> [is visually handicapped] 
is functionally blind if, based on the preceding assessments, 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. 
     
  (e) Deaf-blind. A student who has a combination of severe hearing and visual 
losses after best correction and is determined to be eligible as auditorially 
<nl>impaired<ol> [handicapped] and as visually <nl>impaired<ol> [handicapped] 
according to the specific eligibility criteria for each of these 
<nl>disabilities <ol> [handicapping conditions]. If an eligible student with 
<nl>a<ol> visual <nl>impairment<ol> [handicaps] has a suspected hearing loss 
that cannot be demonstrated conclusively, and if a speech/language evaluation 
performed by a certified speech and hearing therapist, certified speech and 
language therapist, or licensed speech language pathologist indicates there is 
no speech at an age when speech would normally be expected, the student may be 
eligible for services as deaf-blind. 
   
  (f) <nl>Mental retardation<ol> [Mentally retarded]. A student who has been 
determined by a licensed or certified psychologist, <nl>school psychologist, a 
nationally-certified school psychologist, <ol> a psychological associate, 
<nl>associate school psychologist <ol> or an educational diagnostician to be 
functioning two or more standard deviations below the mean on individually 
administered scales of verbal ability, and either performance or nonverbal 
ability, existing concurrently with deficits in adaptive behavior. The report of 
individual assessment must specify the degree of mental retardation. 
   
  (g)  <nl>Emotional disturbance <ol> [Emotionally disturbed]. 
 
  (1)  <nl>A student who has been determined by a psychiatrist, an associate 
school psychologist, a school psychologist, a nationally-certified school 
psychologist with three years of experience supervised by a licensed 
psychologist, or a psychologist or psychological associate licensed or certified 
by the Texas State Board of Examiners of Psychologists to meet the criteria as 
defined in 34 Code of Federal Regulations, sec.300.7(b)(9) (relating to Children 
with Disabilities). Any nationally-certified school psychologist or associate 
school psychologist who is a nationally-certified school psychologist without 
three years of experience supervised by either a school psychologist or a 
psychologist licensed by the Texas State Board of Examiners of Psychologists who 
has a doctorate in a speciality area of school psychology must be directly 
supervised when conducting comprehensive assessments of emotional/behavioral 
factors that may lead to the classification of emotional disturbance. Any 
associate school psychologist who is not a nationally-certified school 
psychologist or psychological associate must be directly supervised by a 
psychologist licensed by the Texas State Board of Examiners of Psychologists who 
has a doctorate in a speciality area of school psychology when conducting 
comprehensive assessments of emotional/behavioral factors that may lead to the 
classification of emotional disturbance. The requirement for three years of 
supervised experience must consist of time spent conducting comprehensive 
assessments of emotional/behavioral factors that may lead to the classification 
of emotional disturbance. The requirement for a doctorate in a specialty area of 
school psychology applies only to psychologists licensed by the Texas State 
Board of Examiners of Psychologists employed after September 1, 1994. <ol> [A 
student who is emotionally disturbed is one who has been evaluated by a licensed 
or certified psychologist, a psychiatrist, or a psychological associate under 
the direct supervision of a licensed or certified psychologist who determines 
that the student meets the criteria as defined in 34 Code of Federal 
Regulations, sec.300.5(b)(8) concerning handicapped children.] 
   
  (2) The report of individual assessment from the evaluating professional must 
specify: 
 
  (A) -(B) (No change.) 
   
  (C) the degree to which in-school and out-of-school behavior reflects symptoms 
consistent with the diagnosis and identification of behavior considered to be a 
direct result of the emotional <nl>disability<ol> [handicap]; and 
   
  (D) (No change.) 
       
  (h)  Learning <nl>disability<ol> [disabled]. Specific eligibility criteria for 
learning disabilities are defined in sec.89.234 of this title (relating to 
Learning Disabilities: Criteria for Determining the Existence of a Severe 
Discrepancy). 
   
  (i) Speech <nl>impairment<ol> [handicapped]. A student who has been determined 
by a certified speech and hearing therapist, certified speech and language 
therapist, or licensed speech language pathologist to have a communication 
disorder such as stuttering, impaired articulation, a language impairment, or a 
voice impairment. 
   
  (j) <nl>Autism<ol> [Autistic]. A student who evidences the criteria for autism 
[or other pervasive developmental disorders] as determined by a 
multidisciplinary team using the definition as stated in <nl>34 CFR,  
s300.7(b)(1) (relating to Children with Disabilities). Students with pervasive 
developmental disorders are included under this category.<ol> [the third 
edition-revised of the Diagnostic and Statistical Manual (DSM-III-R).)] 
 
  (1) The multidisciplinary team must include at least one individual from each 
of the following groups: 
 
  (A)  a licensed physician, or psychiatrist, or <nl>school <ol> 
psychologist<nl>, or a nationally-certified school psychologist, or a 
psychologist licensed or certified by the Texas State Board of Examiners of 
Psychologists with training in school psychology and <ol> [with] experience or 
training in the diagnosis of autism; 
   
  (B)-(C) (No change.) 
     
  (2)  (No change.) 
     
  (k) <nl>Multiple disabilities <ol> [Multiply handicapped]. 
 
  (1) A student who has a combination of <nl>disabilities <ol> [handicaps] 
included in this section and who meets all of the following conditions: 
 
  (A) the student's <nl>disability<ol> [handicapping condition] is expected to 
continue indefinitely; 
   
  (B)  (No change.) 
     
  (2) Students who have more than one of the <nl>disabilities <ol> [handicapping 
conditions] defined in this section but who do not meet the criteria in 
paragraph (1) of this subsection shall not be classified or reported as 
<nl>having multiple disabilities <ol> [multiply handicapped]. 
     
  <nl>(l) Traumatic brain injury. A student who has been determined by a 
licensed physician to have an injury to the brain caused by an external physical 
force resulting in total or partial functional disability and/or psychosocial 
impairment. Assessment to determine educational need is performed by district 
personnel qualified to assess those areas identified in 34 CFR, sec.300.7(b)(12) 
(relating to Children with Disabilities), that are suspected to adversely affect 
the student's educational performance. The term does not apply to brain injuries 
that are congenital or degenerative, or brain injuries induced by birth trauma. 
 
     
  sec.89.213. Qualifications of Special Education Personnel. 
 
  (a)  (No change.) 
   
  [(b) Persons paid from special education funds shall be assigned to 
instructional or other duties only in the special education program; however, 
such assignments may include duties supportive to school operations equivalent 
to those assigned to regular education personnel.] 
   
  <nl>(b)<ol>[(c)] Teachers who hold a special education certificate, an 
academic teaching field or specialization, or endorsement may be assigned to any 
level of a basic special education instructional program serving students 
between the ages of three and 22, except for the following. 
 
  (1)  (No change.) 
   
  (2) Teachers holding only a special education endorsement for early childhood 
education for children with <nl>disabilities <ol> [handicaps] shall be assigned 
only to programs serving infants through grade six. 
   
  (3) Teachers assigned full-time to teaching students who are orthopedically 
<nl>impaired<ol> [handicapped] 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 <nl>disabilities<ol> 
[handicaps] and three semester hours directly related to teaching students with 
physical  <nl>impairments<ol> [handicaps] or other health impairments. 
   
  (4) Teachers certified in the education of students with visual 
<nl>impairments<ol> [handicaps] shall be available to students who are visually 
<nl>impaired<ol> [handicapped] through one of the school district's 
instructional options or through a cooperative arrangement with other school 
districts or an education service center. 
   
  (5)-(6) (No change.) 
   
  (7) Teachers assigned full-time or part-time to instruction of students from 
birth through age two with visual <nl>impairments <ol> [handicaps] shall be 
certified in either early childhood education for children with 
<nl>disabilities<ol> [handicaps] or education for students with visual  
<nl>impairments<ol> [handicaps]. Teachers assigned full-time or part-time to 
instruction of students from birth through age two who are deaf 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 the Texas Education Agency. 
   
  (8) (No change.) 
 
       
  sec.89.214. Special Education Professional Support Personnel. 
 
  (a)  (No change.) 
   
  (b) Services available. Each special education teacher shall have available 
the services of a special education instructional supervisor and an educational 
diagnostician<nl>, school psychologist,<ol> [or] associate school 
psychologist<nl>, or nationally-certified school psychologist<ol>. The special 
education director may also serve as the special education instructional 
supervisor if appropriately certified. 
   
  (c)  Special education director. The special education director shall perform 
administrative and managerial duties as needed to fully implement a 
comprehensive special education program. The director shall assume 
responsibility for coordinating all facets of the special education program, 
including referrals of students <nl>who receive<ol> [in] special education  
<nl>services<ol> to and from other agencies, in order to allow a smooth 
transition from one service to another. 
   
  (d) (No change.) 
   
  (e)  Special education counselor. The special education counselor shall 
provide student and parent counseling, individually and in groups, concerning 
problems resulting from the student's <nl>disability<ol> [handicapping 
condition]. The special education counselor shall serve as liaison between 
parent, school, and community agencies. The counselor may assist in the 
collection and analysis of appraisal data pertaining to sociological variables. 
The counselor shall coordinate special education counseling with the rest of the 
school guidance program. 
   
  (f) (No change.) 
   
  (g) School psychologist. The primary <nl>functions <ol> [function] of the 
school psychologist [is to serve on the assessment team. The responsibilities of 
the school psychologist may] include <nl>meeting the mental health needs of 
students with disabilities;<ol> conducting comprehensive assessments of students 
referred for special education <nl>services <ol> [placement]; participating in 
the development of individual educational plans; consulting with teachers, 
parents, and community agencies concerning prevention or intervention strategies 
relating to learning and behavioral problems of students; [and] planning and 
managing a program of psychological services for students and parents <nl>; and 
counseling and skills development for staff with training in managing children 
with special needs and students with learning and behavioral difficulties<ol>. 
   
  (h)  Associate school psychologist. 
 
  (1) [The primary function of the associate school psychologist is to serve on 
the assessment team.] 
   
  [(2)]  The responsibilities of the associate school psychologist may include 
any of the activities described for the school psychologist in subsection (g) of 
this section, except [that the associate school psychologist must be directly 
supervised by a licensed or certified psychologist] when conducting 
comprehensive assessments of emotional/behavioral factors which may lead to the 
classification of emotional disturbance <nl>under sec.89.211 of this title 
(relating to Eligibility Criteria)<ol>. 
     
  (i) (No change.) 
 
     
  sec.89.215. Related Services Personnel. 
 
  (a) (No change.) 
   
  (b) Related services personnel shall meet the following certification or 
licensure requirements. 
 
  (1)-(2) (No change.) 
   
  (3)  Corrective therapy services shall be provided by a professional who holds 
the following: 
 
  (A) (No change.) 
   
  (B) institutional verification of a minimum of 400 hours of clinical 
experience in working with individuals with  <nl>disabilities<ol> [handicaps]; 
and 
   
  (C) (No change.) 
     
  (4) Counseling services shall be provided in the area of specialization by a 
professional who holds one of the following: 
 
  (A)  a valid Texas Education Agency certificate as a counselor, visiting 
teacher, school psychologist, or associate <nl>school<ol> psychologist; 
   
  (B) <nl>licensure or<ol> certification by the Texas State Board of Examiners 
of Psychologists as a psychologist or psychological associate; 
   
  <nl>(C) certification as a nationally-certified school psychologist; 
   
  <nl>(D)<ol>[(C)] licensure by the State Board of Examiners of Professional 
Counselors; 
   
  <nl>(E)<ol>[(D)] a master's degree in social work from a recognized 
institution of higher education; or 
   
  <nl>(F)<ol>[(E)] licensure as a certified social worker. 
     
  (5)  Interpreting services for <nl>students who are<ol> [the] deaf shall be 
provided by an interpreter who is certified by the Registry of Interpreters for 
the Deaf, Texas Society of Interpreters for the Deaf, or Texas Commission for 
the Deaf, or who has a letter of approval for a one-year waiver from the 
appropriate regional director of services for <nl>students who are<ol> [the] 
deaf. 
   
  (6)-(9) (No change.) 
   
  (10) Physical therapy shall be provided by a professional who is licensed by 
the Texas Board of Physical Therapy Examiners. A <nl>licensed<ol> physical 
<nl>therapy<ol> [therapist] assistant (LPTA) may provide physical therapy 
services under the supervision of a <nl>licensed<ol> physical therapist (LPT) in 
accordance with the standards of the profession. 
   
  (11) Psychological services shall be provided by a professional who holds 
<nl>one of the following: <ol> [a certificate from the Texas State Board of 
Examiners of Psychologists as a psychologist or psychological associate or a 
Texas Education Agency certificate as a school psychologist or an associate 
school psychologist.] 
 
  <nl>(A) a valid Texas Education Agency certificate as a school psychologist or 
an associate school psychologist; 
   
  <nl>(B)  licensure or certification by the Texas State Board of Examiners of 
Psychologists as a psychologist or psychological associate; or 
   
  <nl>(C) certification as a nationally-certified school psychologist. 
     
  (12)-(13) (No change.) 
   
  (14) Social work services shall be provided by one of the following: 
 
  (A)-(C) (No change.) 
   
  (D) a Texas Education Agency-certified school psychologist, associate school 
psychologist, visiting teacher, or counselor; [or] 
   
  <nl>(E) a professional licensed or certified by the Texas State Board of 
Examiners of Psychologists as a psychologist or psychological associate; 
   
  <nl>(F)  a professional certified as a nationally-certified school 
psychologist; or 
   
  <nl>(G)<ol>[(E)] a professional who holds licensure as a certified social 
worker. 
     
  (15) (No change.) 
   
  <nl>(16)  Rehabilitation counseling shall be provided by personnel qualified 
to provide individual or group sessions that focus on career development, 
employment preparation, achieving independence and integration in the workplace 
and community of a student with disabilities, plus rehabilitation services found 
under the Rehabilitation Act of 1973, as amended. 
     
  (c)  (No change.) 
 
     
  sec.89.216. Special Education Paraprofessional Personnel. 
 
  (a)-(b)  (No change.) 
   
  (c) Certified occupational therapy assistants, physical therapist assistants, 
and interpreters for <nl>students who are<ol> [the] deaf may be employed as 
aides. 
   
  (d) An aide may be assigned to function as a teacher assistant under the 
following conditions. 
 
  (1)  Qualifications shall include all of the following: 
 
  (A)-(B) (No change.) 
   
  (C) documented ongoing inservice or other staff development activities related 
to the education of students with <nl>disabilities <ol> [handicaps]. 
     
  (2) (No change.) 
   
  (3) Supervision shall be <nl>by<ol> a certified special education teacher who 
is directly responsible for the implementation of the students' IEPs and 
evaluation of their progress. For teacher assistants operating under paragraph 
(2)(A) and (B) of this subsection, supervision shall be for a minimum of one 
hour per day during student instruction in addition to the time necessary for 
joint planning and preparation. For teacher assistants operating under paragraph 
(2)(C) of this subsection, supervision shall be for a minimum of one hour per 
day or five hours per week. 
   
  (4) (No change.) 
 
       
  sec.89.217. Related Services. 
 
  (a) (No change.) 
   
  (b)  In addition to those related services authorized in federal regulations, 
the following related services may be provided. 
 
  [(1) Adaptive equipment. 
 
  [(A) Adaptive equipment is any type of device or aid used to adapt conditions 
to improve the student's functioning after all necessary medical treatments and 
surgery have been performed, and prostheses have been made. The adaptive 
equipment must facilitate the achievement of specific objectives of the 
individual educational plan. 
   
  [(B) Special seats are any type of special chair or seating equipment which 
will enhance the learning situation and enable an eligible student to 
participate as fully as possible in classroom activities. 
   
  [(C) Electronic communication equipment is any type of electronic 
communication system, telephone, or video setup which enables a homebound 
student to receive instruction along with classmates or to participate in class 
discussions or both.] 
     
  <nl>(1)<ol>[(2)] Art therapy. Art therapy is the use of various art forms in 
the amelioration of <nl>educational<ol> [educationally handicapping] 
disabilities. 
   
  <nl>(2) <ol>[(3)] Corrective therapy. Corrective therapy is the application of 
the principles, tools, techniques, and psychology of medically oriented physical 
education to assist the physician in the accomplishment of prescribed 
objectives. 
   
  <nl>(3)<ol>[(4)] Music therapy. Music therapy is the use of music learning 
experiences specifically designed to modify inappropriate behavior patterns and 
ineffective learning patterns. 
   
  <nl>(4)<ol>[(5)]  Orientation and mobility training. Orientation and mobility 
training includes those aids, methods, services, and skills which enable 
students with visual  <nl>impairments<ol> [handicaps] to move from one place to 
another with confidence, safety, and purpose. "Mobility" in this context is the 
act of moving, while "orientation" is that awareness of pertinent factors in the 
environment which enables the person with partial or total visual impairment to 
react, move, and travel in an appropriate, safe, and purposeful manner. 
   
  <nl>(5)<ol>[(6)] School health services. School health services as a related 
service are those provided to eligible students in addition to those routinely 
available to all students and may include the following: 
 
  (A) -(D) (No change.) 
     
  <nl>(6)<ol>[(7)] Visual therapy. Visual therapy includes training in the use 
of low vision and visual perception. 
   
  <nl>(7)<ol>[(8)] Recreation therapy. Recreation therapy is a process which 
uses <nl>recreational <ol> [recreation] services for purposeful intervention in 
some physical, emotional, or social behavior to bring about a desired change in 
that behavior and to promote the growth and development of the individual. 
     
  (c) Transportation. 
 
  (1) Special transportation shall be provided for eligible students in 
accordance with sec.68.13 of this title (relating to Handicapped Student 
Eligibility) and sec.68. 24 of this title (relating to Handicapped 
Transportation).] School districts shall receive funding for special [education] 
transportation as provided in sec.68.24 of this title (relating to Handicapped 
Transportation). 
   
  (2)  (No change.) 
 
       
  sec.89.218. Participation of Students with <nl>Disabilities <ol> [Handicaps] 
in Regular Education Programs. 
 
  (a) In providing programs, services, and activities for students with 
<nl>disabilities<ol> [handicaps], a school district shall first use those 
resources made available to all students. 
   
  (b) When appropriate, students receiving special education services shall: 
 
  (1) (No change.) 
   
  (2) be educated to the maximum extent appropriate with students who are not 
<nl>receiving special education services<ol> [handicapped]; 
   
  (3) (No change.) 
   
  (4)  be provided opportunities to participate in school activities on the same 
basis as [nonhandicapped] students  <nl>who are not receiving special education 
services<ol>; and 
   
  (5) be offered an opportunity for interaction <nl>on a regular basis<ol> with 
[nonhandicapped] students <nl>who are not receiving special education 
services<ol> [on a regular basis]. 
 
       
  sec.89.219. Special Education. <ol> Special education means: specially 
designed instruction, as defined in 34 CFR, sec.300.17(a)(1) and/or instruction, 
provided in a special education program or regular education setting with 
modification, special education support, supplementary aids, and other special 
arrangements. 
 
   
  sec.89.220. Age Ranges for Student Eligibility. 
 
  (a) (No change.) 
   
  (b) In accordance with the Texas Education Code, sec.11.052 and sec.11.10, a 
free appropriate public education shall be available from birth to students with 
visual or auditory  <nl>impairments<ol> [handicaps]. 
 
     
  sec.89.221. The Admission, Review, and Dismissal (ARD) Committee. 
 
  (a) Each school district or special education cooperative shall establish at 
least one admission, review, and dismissal (ARD) committee which shall make 
decisions concerning the educational program of a student referred for 
consideration for special education <nl>services<ol>. 
   
  (b) The ARD committee shall perform the following functions for each student 
considered for special education <nl>services <ol>: 
 
  (1) (No change.) 
   
  (2) ensure that national origin minority group students (or linguistically 
different students) <nl>do<ol> [are] not <nl>receive<ol> [assigned to] special 
education <nl>services<ol> on the basis of criteria which were developed solely 
based on command of the English language; 
   
  (3)  ensure that students <nl>do not receive<ol> [are not placed in] special 
education  <nl>services<ol> if the only deficiencies identified are directly 
attributable to a different cultural life-style, or to not having had 
educational opportunities; 
   
  (4)-(5) (No change.) 
   
  (6) identify the content areas in which the student's <nl>disability<ol> 
[handicap] significantly interferes with the student's ability to meet regular 
academic mastery level standards; 
   
  (7)-(10) (No change.) 
   
  (11) review the individual educational plan (IEP) if the student has not 
received passing grades, as specified by criteria in the IEP, in the same 
content area for two consecutive six-week reporting periods. (Students with [a] 
speech <nl>impairments <ol> [handicap] only may be excluded from this 
requirement except in the area of language arts instruction.) 
     
  (c) (No change.) 
   
  (d) Within the 60 calendar-day timeframe set forth in the Texas Education 
Code, sec.21.5031, the written assessment report must be completed within 30 
school days of the date that the initial referral [to special education] for 
comprehensive assessment <nl>for special education services<ol> was received. 
The ARD committee shall make its decision regarding students referred for the 
first time within 30 calendar days from the date of the completion of the 
written assessment report. When this 30th day occurs during the summer, when 
school is not in session, the ARD committee shall have until the first day of 
classes in the fall to have made the placement and IEP decisions unless the 
assessment indicates the student will need extended year services during that 
summer. 
   
  (e) For a student who is new to the school district, the ARD committee may 
meet when the student registers and may determine that the student is eligible 
under the following conditions: 
 
  (1) the parent(s) verify that the student [is handicapped and] was receiving 
special education services in the previous school district; 
   
  (2)  (No change.) 
   
  (3) [placement in] special education <nl>services are<ol> [is] temporary, 
contingent upon either receipt of valid assessment data from the previous school 
district or the collection of new assessment data; and 
   
  (4) (No change.) 
     
  (f) (No change.) 
   
  <nl>(g)  For a student with a disability who is enrolled in a parochial or 
other private school and receives special education or related services from the 
district, the district shall: 
 
  <nl>(1) initiate and conduct meetings to develop, review, and revise an 
individual educational plan for the student, in accordance with 34 CFR, 
sec.300.343; and 
   
  <nl>(2)  ensure that a representative of the parochial or other private school 
attends each meeting. If the representative cannot attend, the district shall 
use other methods to ensure participation by the private school, including 
individual or conference telephone calls. 
     
  <nl>(h)<ol>[(g)] Persons other than those listed in this subsection may be 
present at, and participate in, ARD committee meetings at the discretion of the 
school district, the parent, or the student; however, the committee shall 
include, under the circumstances described in this section, only the following 
members in determining its actions: 
 
  (1) (No change.) 
   
  (2) a representative from instruction shall always be included. This 
representative may be either: 
 
  (A)-(B) (No change.) 
   
  (C) for initial placements for preschool students and for [severely 
handicapped] students <nl>with severe impairments<ol>, the representative from 
instruction shall be an appropriate special education teacher; 
     
  (3)-(4) (No change.) 
   
  (5) a representative from the special-education assessment team who shall be 
included for initial and three-year reevaluation ARD committee meetings, and as 
needed for ARD committee annual or special reviews when there is reason to 
suspect that assessment issues will be included in the ARD committee's 
deliberations. For students <nl>with a speech impairment only<ol> [considered as 
only speech handicapped], the speech therapist may serve as the representative 
from assessment; 
   
  (6) a professional certified in the education of students with visual 
<nl>impairments<ol> [handicaps], when a student with  <nl>a<ol> visual 
<nl>impairment <ol> [handicaps] is being considered. For students from birth 
through age two with visual <nl>impairments <ol> [handicaps] or for students who 
are deaf-blind, the teacher of infants with visual <nl>impairments <ol> 
[handicaps] or the teacher of students who are deaf-blind, as appropriate, may 
be one of the members of the ARD committee in place of the teacher of students 
with visual <nl>impairments<ol> [handicaps]; 
   
  (7) a professional certified in education of <nl>students who are<ol> [the] 
deaf, when a student with a hearing impairment is being considered; 
   
  (8)-(10) (No change.) 
     
  <nl>(i)<ol>[(h)] All members of the ARD committee shall have the opportunity 
to participate in a collaborative manner in developing the IEP. 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)-(7) (No change.) 
     
  <nl>(j)<ol>[(i)] If they choose to do so, the school district, the parent, or 
the student is allowed to audio record the ARD committee meeting. All 
participants in the meeting shall be informed that such a recording is being 
made. 
 
     
  sec.89.222. Parent Participation in <nl>Admission, Review, and Dismissal (ARD) 
[ARD] Committee Meetings. 
 
  (a) The district shall maintain documentation to indicate the extent of parent 
participation in the individual educational plan <nl>(IEP)<ol> development and 
parent agreement or disagreement with admission, review, and dismissal committee 
action in accordance with 34 Code of Federal Regulations, sec.300.345, Part 300, 
Appendix C, and the Texas Education Code, sec.21.5041. <nl>The district shall 
give the parent, on request, a copy of the IEP. 
   
  <nl>(b) Districts shall give written notice that meets the requirements of 34 
CFR, sec.300.505 to the parents of a student with a disability a reasonable time 
before the district proposes or refuses to initiate or change the 
identification, evaluation, or educational placement of the student or the 
provision of a free appropriate public education to the student. 
   
  <nl>(c) Districts must obtain parental consent before conducting a 
preplacement evaluation and initial placement of a student with a disability in 
a program providing special education and related services. If state law 
requires parental consent before a student with a disability is evaluated or 
initially provided special education and related services, state procedures 
govern the district in overriding a parent's refusal to consent. Districts may 
not require parental consent as a condition of any benefit to the parent or the 
student except for the service or activity for which consent is required. 
   
  <nl>(d)<ol>[(b)]  If a parent is identified but is unavailable or refuses to 
participate in an admission, review, and dismissal committee meeting, after the 
school has exhausted the avenues provided in federal regulations, the school 
district may proceed with its responsibilities for planning <nl>for<ol> and 
educating the student. The school district must document its efforts to contact 
or include the parent. 
   
  <nl>(e)<ol>[(c)] If a parent refuses or otherwise does not give consent prior 
to the initiation of formal evaluation procedures or for initial special 
education <nl>services<ol>[program placement], the school district shall first 
ensure with all reasonable effort that the parent understands the proceedings 
and understands his or her rights. The school district shall attempt to come to 
agreement with parents. If these attempts fail, the district may pursue 
mediation, or may pursue legal action as authorized by the Texas Education Code, 
the Texas Family Code, or applicable federal statutes and regulations. (Note: 
All students are subject to the provision of compulsory student attendance in 
the Texas Education Code, sec.21. 032 and sec.21.033.) 
   
  <nl>(f)<ol>[(d)] 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 <nl>services<ol>[program]. 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. 
 
     
  sec.89.223. Content of the Individual Educational Plan (IEP). 
 
  (a)  The individual educational plan developed by the admission, review, and 
dismissal <nl>(ARD)<ol> committee for each student <nl>must: be in effect before 
special education and related services are provided, be implemented as soon as 
possible following the ARD committee meeting, and be in effect at the beginning 
of each school year; and<ol> shall include the following additional information: 
 
  (1)-(3) (No change.) 
   
  (4) the IEP shall specify the following: 
 
  (A) (No change.) 
   
  <nl>(B) projected dates for initiation of services and the anticipated 
duration of the services; 
   
  <nl>(C)<ol>[(B)] position responsible for each special education related 
service to be provided; 
   
  <nl>(D)<ol>[(C)] modifications necessary for the student to be successful in 
the regular program, if any; 
   
  <nl>(E)<ol>[(D)] <nl>objective <ol> criteria<nl>, evaluation procedures,<ol> 
and schedule for evaluating the progress <nl>on at least an annual basis whether 
the short-term instructional objectives are being achieved. This information 
should<ol>[of the student which] also allow for determining the student's 
eligibility for participation in extracurricular activities; and 
   
  <nl>(F)<ol>[(E)] a statement addressing nonexemption, modification, or 
exemption from some or all of the basic skills assessment instruments, as 
appropriate. Modifications of regular classroom procedures which are provided 
for students by the local district, as specified in the student's IEP, shall be 
provided during the testing process in accordance with sec.101.3 of this title 
(relating to Testing Appropriate Students); 
     
  (5)  (No change.) 
     
  (b) For students with visual <nl>impairments <ol>[handicaps], the IEP shall 
also include content required in the Texas Education Code, sec.11.052(e). 
   
  (c)-(d) (No change.) 
 
     
  sec.89.224. Local District Procedures Required. 
 
  (a) Each school district or <nl>special education<ol> cooperative shall 
establish procedures which ensure the ongoing monitoring and evaluation of each 
student's progress in special education. 
   
  (b) Each school district or <nl>special education<ol> cooperative shall 
maintain an eligibility folder on each student <nl>receiving <ol>[in] special 
education  <nl>services<ol> in addition to the student cumulative record. The 
eligibility folder must include, but need not be limited to, copies of referral 
data, documentation of notices and consents, assessment reports and supporting 
data, ARD committee deliberations, and the IEP. 
   
  (c) For school districts providing special education services to students with 
visual <nl>impairments <ol>[handicaps], there shall be written procedures as 
required in the Texas Education Code, sec.11.052(c)(10). 
   
  (d) Each school district or cooperative shall provide parents of students 
<nl>receiving<ol>[in] special education <nl>services <ol> written reports of the 
students' progress on the same timely basis as those provided to students in 
regular education. 
 
     
  sec.89.225. Assistive Technology Devices and Services. 
 
  (a)  Assistive technology devices and services are used to adapt conditions to 
improve the student's functioning when needed to implement the student's 
individual educational plan. 
   
  (b) The admission, review, and dismissal committee shall review 
recommendations for assistive technology devices and services from the 
comprehensive assessment report and include in the individual educational plan 
devices and services determined to be educationally necessary. 
   
  (c) Assistive technology devices and services assigned in the individual 
educational plan do not replace necessary medical treatment or individually 
fitted or prescribed prosthetic or corrective devices such as hearing aids and 
glasses. 
 
     
  sec.89.226. Comprehensive System of Personnel Development. 
 
  (a)  (No change.) 
   
  (b) Local school districts. Each school district or cooperative shall 
establish a comprehensive system of personnel development which includes 
development of a plan to meet identified training needs which incorporate the 
requirements under the Texas Education Code, sec.11.052(c)(8), concerning 
personnel serving students <nl>with visual impairments <ol>[who are visually 
handicapped]. The special education personnel development plan shall be an 
integral part of the local district's or fiscal agent district's inservice 
program in accordance with sec.149.21 of this title (relating to General 
Requirements for Staff Development). 
 
     
  sec.89.227. Contracting for Educational Placements for Students with 
<nl>Disabilities[Handicaps]. 
 
  (a)-(d) (No change.) 
   
  (e)  For day contract placements, the school district will submit information 
to the <nl>Texas Education Agency<ol>[agency] indicating the number of nonpublic 
school contract students, the students' identification numbers, ages,  
<nl>disabilities<ol>[handicapping conditions], and the names of the facilities 
with which the school district is contracting. 
 
  (1) The <nl>Texas Education Agency <ol>[agency] will verify that the 
facilities with which the school district is contracting are approved by the 
<nl>Texas Education Agency<ol>[agency] for that age and <nl>disability 
<ol>[handicapping condition]. 
   
  (2) Education costs for contract students will be funded on the basis of the 
instructional arrangement weight of 3.5 which is the weight provided for 
nonpublic day school placements in the Texas Education Code, sec.16.151(a). 
<nl>In 1994-1995, this weight will change to 1.7. 
   
  (3) The school district will not count contact hours on contract students. The 
<nl>Texas Education Agency<ol>[agency] will determine from the number of 
contract students reported the full-time equivalents and will pay state funds to 
the district according to the formula prescribed in law. 
   
  (4)-(5) (No change.) 
     
  (f) School districts and special education cooperatives may contract for 
residential placement only with schools or facilities which are approved by the 
commissioner of education. 
 
  (1) School districts or special education cooperatives which intend to 
contract with facilities under this section shall notify the <nl>Texas Education 
Agency <ol>[agency] of their intent to contract for residential placements. 
   
  (2) With the approval of the <nl>Texas Education Agency<ol>[agency], the 
district may contract with the facility for the services listed in the 
contracted student's IEP. 
   
  (3) (No change.) 
     
  (g) If a day or residential facility which is not approved by the commissioner 
gets a request for placement from a local school district, the <nl>Texas 
Education Agency<ol>[agency] will begin approval procedures and make an on-site 
visit to the facility within 30 calendar days after the <nl>Texas Education 
Agency<ol>[agency] has been notified by the local school district of the request 
for placement. Approval of nonpublic facilities may be for one, two, or three 
years. 
   
  (h) The school district or special education cooperative shall have the 
following responsibilities when making all contract placements, both residential 
and day. 
 
  <nl>(1) Before a district places a student with a disability in, or refers a 
student to, a private school or facility, the district shall initiate and 
conduct a meeting to develop an individual educational plan for the student in 
accordance with 34 CFR, sec.300.343, sec.89.221 of this title (relating to The 
Admission, Review, and Dismissal (ARD) Committee), and sec.89.223 of this title 
(relating to Content of the Individual Educational Plan (IEP)). The district 
shall ensure that a representative of the private school or facility attends the 
meeting. If the representative cannot attend, the district shall use other 
methods to ensure participation by the private school or facility, including 
individual or conference telephone calls. 
   
  <nl>(2)<ol>[(1)] For each student, those services which the district or 
special education cooperative is unable to provide and which the facility is 
able to provide shall be listed in the student's IEP. 
   
  <nl>(3)<ol>[(2)] The school district or special education cooperative shall 
make an annual on-site visit to verify that the facility can and will offer the 
services listed in the individual student's IEP and to ensure that the facility 
offers an appropriate educational program for the student. 
   
  <nl>(4)<ol>[(3)] The placement of more than one student may be considered in 
the same on-site visit; however, the IEP of each student must be reviewed and a 
determination of appropriateness of placement and service must be made for each 
student. 
   
  <nl>(5)<ol>[(4)] The appropriateness of the facility for each student being 
contracted shall be documented in the IEP. General approval of a residential 
facility by the <nl>Texas Education Agency<ol>[agency] or general screening by a 
regional education service center is not sufficient to meet the requirements of 
this subsection. 
   
  <nl>(6)<ol>[(5)] For each student, the ARD committee shall establish in 
writing criteria and estimated timelines for returning the student to the school 
district or <nl>special education <ol> cooperative. 
   
  <nl>(7)<ol>[(6)] For all contract students, in the annual ARD review, the 
school district or special education cooperative shall verify: 
 
  (A) -(C) (No change.) 
       
  (i) Residential contracts shall be negotiated on an individual student basis. 
 
  (1) Requests for approval of state and federal funding for residentially 
placed students will be on an individual student basis through an application 
form submitted to the <nl>Texas Education Agency<ol>[agency]. 
 
  (A)-(B) (No change.) 
     
  (2) The residential placement, if approved by the  <nl>Texas Education 
Agency<ol>[agency], will be funded as follows. 
 
  (A)-(B) (No change.) 
   
  (C) Funds generated by the formula for residential costs described in 
subparagraph (B) of this paragraph may not exceed the daily rate recommended by 
the Texas Health and Human Services <nl>Commission<ol>[Coordinating Council] for 
the type of services for which the student is placed. 
       
  (j) -(m) (No change.) 
 
     
  sec.89.228. Provision of Services for Students Placed by Their Parents in 
Private Schools. 
 
  (a) When a student with <nl>disabilities <ol>[handicaps] 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 ARD committee 
meeting to determine whether the district can offer to the student a free 
appropriate public education. If the district determines that it can, the 
district is not responsible for providing educational or related services to the 
student until such time as the parents choose to enroll the child in the public 
school full-time or request services under the dual enrollment rule in 
subsection (f) of this section. 
   
  (b)-(i) (No change.) 
 
     
  sec.89.229. Notice Requirements and Complaint Procedures. 
 
  (a)  General notice. 
 
  (1) The Texas Education Agency will <nl>adopt <ol>[develop] a written document 
to be used for notifying students or the parent or guardian of students having 
or suspected of having a <nl>disability <ol>[handicap] of their educational 
rights <nl>based on the Office of Special Education Programs model which 
includes a full explanation of all procedural safeguards that meet the 
requirements of 34 CFR, sec.300. 505 <ol>. This document shall be disseminated 
to all school districts, regional education service centers, and other agencies 
receiving special education funds. The document shall be provided to parents and 
<nl>adult students <ol> by school districts <nl>a reasonable time before the 
district proposes or refuses to initiate or change the identification, 
evaluation, or educational placement of the student or the provision of a free 
appropriate public education to the student<ol>[at the time of referral]. 
   
  (2) (No change. ) 
   
  (3) The LEAs are responsible for providing the document in the native language 
or other mode of communication of the parent. The document 
<nl>adopted<ol>[developed] by the <nl>Texas Education Agency<ol>[agency] shall 
be available to LEAs in writing and on cassette tape in English, Spanish, 
Vietnamese, and in braille. The <nl>Texas Education Agency<ol>[agency] and the 
education service centers will provide assistance to the LEAs to ensure that 
parents receive the document in their native language or other mode of 
communication. 
     
  (b) Notice of admission, review, and dismissal committee meeting. At the time 
the district notifies the parent of the ARD committee meeting, the notice must 
inform the parent that the ARD committee will discuss, at the parent's request, 
the provision of any educational or related service not proposed for discussion 
by the district in the notice. <nl>Each school district shall take steps to 
ensure that one or both of the parents of the student with a disability are 
present at each meeting or are afforded the opportunity to participate. 
Districts must notify parents of the meeting early enough to ensure that they 
will have an opportunity to attend, schedule the meeting at a mutually agreed on 
time and place, and must indicate the purpose, time, and location of the meeting 
and who will be in attendance. The notice under 34 CFR, sec.300.504 must include 
a full explanation of all of the procedural safeguards available to the parents 
under 34 CFR, sec.sec.300.500, 300.502, 300.515, and 300.562-300.569; a 
description of the action proposed or refused by the district, an explanation of 
why the agency proposes or refuses to take the action, and a description of any 
options the district considered and the reasons why those options were rejected; 
a description of each evaluation procedure, test, record, or report the district 
uses as a basis for the proposal or refusal; and a description of any other 
factors that are relevant to the district's proposal or refusal. The notice must 
be written in language understandable to the general public and provided in the 
native language of the parent or other mode of communication used by the parent, 
unless it is clearly not feasible to do so. If the native language or other mode 
of communication of the parent is not a written language, the state education 
agency or local education agency shall take steps to ensure that the notice is 
translated orally or by another means to the parent in his or her native 
language or other mode of communication; that the parent understands the content 
of the notice; and that there is written evidence that the requirements in this 
paragraph have been met. 
   
  (c)-(d) (No change.) 
 
     
  sec.89.233. Comprehensive Individual Assessment. 
 
  (a)-(b) (No change.) 
   
  (c) Documentation. 
 
  (1) (No change.) 
   
  (2)  There shall be a written assessment report which shall address the 
presence or absence of those symptoms or conditions included in the specific 
eligibility criteria for the <nl>disability <ol>[handicapping conditions] for 
which the student is being assessed. The report shall include the type and 
severity of the impairment and the functional implications for the educational 
process. 
   
  (3) The admission, review, and dismissal committee shall have sufficient 
information to determine whether or not the student <nl>has a disability<ol>[is 
handicapped] and in need of special education services. 
     
  (d) Areas to be considered. Assessment of physical, mental, and emotional 
conditions must include a consideration of the student's functioning in the 
following six areas: language dominance, language, physical, 
emotional/behavioral, sociological, and intellectual. The professional 
responsible for assessing each area shall make professional judgments regarding 
the degree to which the assessment in each area is necessary. Specific 
eligibility criteria for the <nl>disability<ol>[handicapping condition] in 
question should indicate the minimum intensity of assessment needed in each 
area, but all six areas must be addressed in the written report to the 
admission, review, and dismissal committee. 
 
  (1)-(3) (No change. ) 
   
  (4) Emotional/behavioral. The assessment of an individual's emotional and 
behavioral factors shall consist of formally or informally identifying those 
characteristics manifested in in-school or out-of-school behavior or both which 
may influence learning. The assessment shall include behaviors relative to the 
<nl>disability <ol>[handicap] which may affect educational placement, 
programming, or discipline. 
   
  (5) Sociological. The assessment of an individual's sociological variables 
must consist of identifying the child's family and community environmental 
situation influencing learning and behavioral patterns. Students shall not be 
eligible for special education <nl>services<ol> if the only deficiencies 
identified are directly attributable to a different cultural lifestyle or to 
their not having had educational opportunities. 
   
  (6) (No change.) 
     
  (e)  (No change.) 
   
  (f) Special provisions. 
 
  (1) For <nl>students being served in<ol> homebound or hospitalized 
<nl>instructional arrangements<ol>[students] who have no prior history of a 
<nl>disability<ol>[handicapping condition] or need for special education, the 
information collected at the time of referral may be determined by the 
admission, review, and dismissal committee to be sufficient. The ARD committee 
may request additional information if necessary for its deliberations. 
   
  (2) For students referred <nl>due to a<ol>[as] speech <nl>impairment 
<ol>[handicapped] only, the assessment shall be performed and documented by a 
certified speech and language therapist, certified speech and hearing therapist, 
or a licensed speech/language pathologist. All of the areas listed in 
subsections (d) and (e) of this section including assessment of physical, 
mental, and emotional conditions and learning competencies shall be addressed in 
the assessment; however, the depth of the assessment to be performed for each 
area shall be determined by the local school district. The written report of 
assessment shall include the level of severity of the impairment as determined 
by local procedures and shall state how the communication disorder affects the 
student's performance in the classroom resulting in an educational need for 
speech therapy services. 
   
  (3)  Assessment of very young students or students with severe 
<nl>disabilities<ol>[handicaps] in accordance with this section may not be 
possible. The professionals responsible for assessing these students must 
document the rationale for deviating from the standard procedures and state 
modification used as well as the results of the assessment. The written report 
must specify the nature and extent of the disability. The educational assessment 
of these students may be limited to competency-based or criterion-referenced 
measures. 
   
  (4) When considering students who <nl>have visual impairments<ol>[are visually 
handicapped], a professional certified in the education of students with visual 
<nl>impairments <ol>[handicaps] shall be assigned to assist in: 
 
  (A)-(C)  (No change.) 
   
  (D) interpreting data to ensure consideration and understanding of the 
educational, psychological, and social implications of the 
<nl>impairment<ol>[handicap]. 
     
  (5) When considering students from birth through age two who <nl>have visual 
impairments <ol>[are visually handicapped], or students who are deaf-blind, the 
teacher of infants who <nl>have visual impairments <ol>[are visually 
handicapped] or the teacher of students who are deaf-blind, as appropriate, may 
perform the assessment in paragraph (4) of this subsection. 
     
  (g) (No change.) 
 
     
  sec.89.235. General Program Requirements. 
 
  (a) (No change.) 
   
  (b) Students with <nl>disabilities<ol>[handicaps] shall have the opportunity 
to participate in educational programs and activities with students without 
<nl>disabilities <ol>[handicaps]. 
   
  (c) The school district curriculum shall enable each [handicapped] student 
<nl>with disabilities <ol> to acquire knowledge and skills in the basic areas of 
learning commensurate with the student's needs and abilities. These skills may 
be attained in the general program of instruction or in a program of special 
education instruction, as determined by the admission, review, and dismissal 
committee. 
   
  (d) Students with <nl>disabilities<ol>[handicaps] shall have available an 
instructional day commensurate with that of students without 
<nl>disabilities<ol>[handicaps]. The admission, review, and dismissal committee 
shall determine the appropriate instructional setting and length of day for each 
student, and these shall be specified in the student's individual educational 
plan. 
   
  (e) The secondary program of a student receiving [in] special education 
<nl>services<ol> shall terminate either with graduation or when the student no 
longer meets the age requirement for eligibility in the Texas Education Code, 
sec.21.501. A student receiving special education services who has not reached 
his or her 22nd birthday on September 1 of a scholastic year shall be eligible 
for services through the end of that scholastic year or until graduation. 
 
  (1) (No change.) 
   
  (2) A student <nl>receiving<ol>[in] special education <nl>services <ol> may be 
graduated upon having satisfactorily completed the minimum academic credit 
requirements for graduation applicable to students in regular education, 
including satisfactory performance on the exit level assessment instrument. 
   
  (3) A student <nl>receiving<ol>[in] special education <nl>services <ol> may 
also be graduated upon the determination by the ARD committee that the student 
has completed requirements specified in the IEP which have resulted in one of 
the following: 
 
  (A)-(C) (No change.) 
     
  (4)-(5) (No change.) 
   
  (6) A student <nl>receiving<ol>[in] special education <nl>services <ol> may 
also be graduated upon the determination by the ARD committee that the student 
no longer meets age eligibility requirements and has completed the requirements 
specified in the IEP. 
   
  (7)-(8) (No change.) 
   
  (9) Students with <nl>disabilities<ol>[handicaps] who are eligible to take the 
exit level assessment instrument but have not performed satisfactorily are 
eligible for remedial instruction in accordance with the Texas Education Code, 
sec.21.557. 
     
  (f) (No change.) 
 
     
  sec.89.236. Special Education Cooperatives. 
 
  [(a) Local school districts with less than 3,000 average daily attendance 
shall cooperatively operate their special education programs unless otherwise 
authorized by the commissioner of education.] 
   
  <nl>(a)<ol>[(b)] <nl>Local <ol>[Member] school districts  <nl>choosing to 
cooperatively operate their special education programs <ol>[of special education 
cooperatives] shall establish a management board comprised of the 
superintendents of the member schools. 
   
  <nl>(b)<ol>[(c)] One member district of the cooperative shall be designated as 
fiscal agent. The fiscal agent district must be accredited and must have grades 
kindergarten through 12. The regional education service center may serve as the 
fiscal agent. The fiscal agent shall be responsible for financial matters on 
behalf of the cooperative including applications, reports, and/or accounting for 
cooperative-wide personnel; cooperative operating expenses; <nl>Individuals with 
Disabilities Education Act<ol>[Education of the Handicapped Act], Part B, funds; 
and  <nl>Elementary and Secondary Education Act<ol>[Education Consolidation and 
Improvement Act], Chapter I Handicapped funds. 
   
  <nl>(c)<ol>[(d)] The special education cooperative management board shall 
establish a schedule of regular meetings for the purpose of conducting and 
reviewing the administration and operation of the cooperative. 
   
  <nl>(d)<ol>[(e)] Special education cooperatives shall have written rules 
approved by the management board and each member district board of trustees. The 
rules shall address all aspects of the cooperative administration and operation 
including, but not limited to, all matters relating to personnel, fiscal 
responsibilities, and programs. 
   
  <nl>(e)<ol>[(f)] Each school district within the cooperative shall be 
responsible for employment and dismissal of personnel who serve only that 
district. Itinerant personnel serving cooperative schools shall be considered to 
be cooperative personnel but shall be governed by the general policies of the 
fiscal agent unless otherwise approved by the cooperative management board. 
   
  <nl>(f)<ol>[(g)] Local school districts of any size may develop special 
purpose cooperatives to serve certain program needs. 
   
  <nl>(g) <ol>[(h)] Each school district within the cooperative is responsible 
for contributing a prorated share of the generated state special education 
and/or local funds to the fiscal agent for cooperative-wide personnel and 
operating expenses of the cooperative. This amount should be determined by the 
management board of the cooperative. 
 
     
  sec.89.238. Regional Education Service Center Special Education Programs. Each 
regional education service center shall have a special education program 
component. Activities and services shall be based on regional needs in 
accordance with the following priorities: 
 
  (1)-(5)  (No change.) 
   
  (6) direct and supportive services to students with visual 
<nl>impairments<ol>[handicaps]. A minimum of one staff member certified in the 
education of students with visual <nl>impairments<ol>[handicaps] shall be 
employed by each service center; 
   
  (7) provide direct or supportive assistance or both to <nl>preschool programs 
for children with disabilities<ol>[early childhood programs and to students in 
early childhood programs]. 
 
     
  sec.89.239. Other Special Program Provisions. 
 
  (a) Under the Texas Education Code (TEC), sec.11.052, local school districts, 
in cooperation with education service centers when appropriate, shall provide 
specialized services to students with visual <nl>impairments<ol>[handicaps]. 
   
  (b)-(c)  (No change.) 
   
  (d) School districts shall provide each parent or legal guardian of an 
eligible student with <nl>a<ol> visual or auditory <nl>impairment 
<ol>[handicaps] the following written information before considering the 
student's placement for special education services: 
 
  (1) -(3) (No change.) 
 
       
  sec.89.242. Instructional Arrangements and Settings. 
 
  (a) Each local school district or <nl>special education<ol> cooperative shall 
be able to provide services with special education personnel on an itinerant, 
helping teacher, resource, partially self-contained and self-contained basis to 
students with <nl>disabilities <ol>[handicaps] in order to meet the special 
needs of those students, in accordance with 34 Code of Federal Regulations,  
s300.551. 
   
  (b) (No change.) 
   
  (c) <nl>Paragraphs (1), (10), and (14) of this subsection will take effect 
beginning with the 1994-1995 school year.<ol> Instructional arrangements for 
students <nl>receiving <ol>[in] special education  <nl>services<ol> will include 
the following. 
 
  (1)  Resource <nl>room/services<ol>[room]. <nl>Beginning September 1, 1994, 
this<ol>[This] instructional arrangement <nl>will be <ol>[is] for providing 
special education instruction and related services in a [school district] 
setting <nl>other than regular education<ol> for less than 50% of the regular 
school day. <nl>Such settings would include content mastery services that serve 
students with and without disabilities. Refer to current attendance guidelines 
to determine whether resource or mainstream would be the appropriate 
instructional arrangement. <ol>[This arrangement also includes services provided 
by a special education itinerant teacher (one who provides instruction to 
students on more than one campus). Regardless of the percent of time the student 
spends in special education, this arrangement includes any supportive special 
education services provided in a regular education class such as that provided 
directly by helping teachers, interpreters, and special education aides.] 
   
  (2) Self-contained, mild and moderate, regular campus. This instructional 
arrangement is for providing special education instruction and related services 
to students with mild or moderate <nl>disabilities<ol>[handicaps] who are in a 
self-contained program for 50% or more of the regular school day on a regular 
school campus. 
   
  (3)  Self-contained, severe, regular campus. This instructional arrangement is 
for providing special education instruction and related services to students 
with severe <nl>disabilities <ol>[handicaps] who are in a self-contained program 
for most of the regular school day on a regular school campus. Students may be 
capable of attending no more than two regular education classes (such as music, 
physical education, or art). 
   
  (4)  Self-contained, separate campus. This instructional arrangement is for 
providing special education instruction and related services to students [who 
are] in a self-contained program at a separate campus operated by the school 
district that provides only special education instruction. This arrangement 
includes services provided to students at an off-campus facility leased or 
arranged for by the school district for the purpose of providing special 
education <nl>services<ol> to district students. 
   
  (5) (No change.) 
   
  (6) Vocational adjustment class. This instructional arrangement is for 
providing special education instruction to students who are placed on a job with 
regularly scheduled supervision by special education teachers. A student in 
part-time job training/employment receives a minimum of two hours daily of job 
related and academic instruction. A student in full-time job training/employment 
receives a minimum of one hour a week of job-related instruction. Students may 
participate in other occupational preparation programs (which do not generate 
special education funds) including regular vocational education, [coordinated 
vocational academic education (CVAE) classes,] and vocational education for 
students with handicaps (VEH) classes. 
   
  (7) Community class. This instructional arrangement is for providing special 
education instruction and related services to students whose instruction is 
provided [by the school district's special education personnel] in a facility 
not operated by a school district [which also provides other services for 
individuals with handicaps]. This instructional arrangement includes <nl>, but 
is not limited to, head start program, day care centers,<ol> sheltered 
workshops<nl>, and community colleges<ol>. A student participating in a 
sheltered workshop must receive at least one hour per day of special education 
instruction. 
   
  (8) Homebound. This instructional arrangement is for providing special 
education instruction [in] to eligible students who are served at home or 
hospital bedside. Students served on a homebound or hospital bedside basis are 
expected to be confined for a minimum of four consecutive weeks as documented by 
a physician licensed to practice in the United States. Homebound or hospital 
bedside instruction may, as provided by local district policy, also be provided 
to chronically ill students who are expected to be confined for any period of 
time totaling at least four weeks throughout the school year as documented by a 
physician licensed to practice in the United States. Home instruction may be 
provided as an option for students with <nl>disabilities <ol>[handicaps] as a 
result of disciplinary action pursuant to sec.133.24 of this title (relating to 
Discipline of Students with Handicaps). Home instruction may also be used for 
prekindergarten students whose developmental levels are such that they are not 
capable of participating in special education classes for early childhood. 
   
  (9)  (No change.) 
   
  (10) Speech therapy. This instructional arrangement is for providing speech 
therapy services. <nl>Beginning September 1, 1994, students who are provided 
speech therapy services only are not eligible to be counted for any other 
instructional arrangement. 
   
  (11) (No change.) 
   
  (12) State school for <nl>persons with mental retardation<ol>[the mentally 
retarded]. This instructional arrangement is for providing special education 
instruction to students who reside at a state school. The services are provided 
at a state school or on a school district campus. 
   
  (13)  Residential care and treatment facility (not school district resident). 
This instructional arrangement is for providing special education instruction to 
students with <nl>disabilities <ol>[handicaps] who reside in approved care and 
treatment facilities and whose parents do not reside within the boundaries of 
the school district providing educational services to the students. In order to 
be considered in this arrangement the services must be provided on a school 
district campus. If the instruction is provided at the facility rather than on a 
school district campus, the instructional arrangement is considered to be the 
hospital class arrangement rather than this instructional arrangement. Placement 
of a student at the facility for care/treatment does not automatically make the 
student eligible for special education. Students must meet special education 
eligibility requirements to be considered in this instructional arrangement. 
Students served in this instructional arrangement are expected to reside in the 
facility a minimum of four consecutive weeks as documented by an appropriate 
authority. 
   
  (14) Mainstream. <nl>Beginning September 1, 1994, this<ol>[This] instructional 
arrangement <nl>will be<ol>[is] for providing special education <nl>instruction 
and related<ol> services according to individual educational plans to students 
whose instruction <nl>and related services are provided in <ol>[is maintained in 
the] regular <nl>education<ol>[classroom setting] with [necessary indirect] 
special education support  <nl>designed to enrich regular education and to 
enable success of the student with disabilities. This support is for teachers 
and students and includes direct instruction, helping teacher, team teaching, 
interpreter, special education aides,<ol>[such as] curricular or instructional 
modifications, special materials/equipment, consultation <nl>and training 
for<ol>[with] the regular classroom teacher, monitoring a student's progress in 
regular education classes, or <nl>other<ol>[incidental] direct <nl>or indirect 
<ol> services <nl>needed to implement a student's individual educational 
plan<ol>[when the level of direct special education service is such that the 
student cannot be considered in any other special education instructional 
arrangement]. 
     
  (d) (No change.) 
 
     
  sec.89.244. Advisory Committees. 
 
  (a) (No change.) 
   
  (b)  State-level advisory committee. 
 
  (1) The Continuing Advisory Committee for Special Education shall be the state 
advisory panel required by federal regulations and state statute and shall 
advise the State Board of Education and the commissioner of education on the 
education of <nl>students with disabilities<ol>[children with handicaps]. 
   
  (2)-(4) (No change.) 
     
  (c) Local advisory committees. The school district or special education 
cooperative shall establish a local advisory committee to provide for public 
participation from those in the community concerned with educational programming 
for students with <nl>disabilities<ol>[handicaps] including individuals with 
<nl>disabilities <ol>[handicaps] and their parents. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434573 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
             
  Clarification of Provisions in Federal Regulations and State Law 
 
  19 TAC sec.89.219 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Education 
Agency or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The Texas Education Agency (TEA) proposes the repeal of  s89.219, concerning 
the definition of special education. In a separate submission, TEA is proposing 
a new sec.89.219 to update the definition of special education by including a 
reference to the definition of specially designed instruction in 34 Code of 
Federal Regulations, sec.300.17(a)(1). 
 Jay Cummings, executive deputy commissioner for education of special 
populations and adults, has determined that for the first five-year period the 
repeal is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the repeal. 
 Mr. Cummings and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be that TEA may adopt a clearer, more precise definition of the term 
special education. 
 There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the repeal as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeal submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rule has been published in the Texas Register. 
 The repeal is proposed under the Texas Education Code,  s21.501, which 
authorizes the State Board of Education to develop and modify as necessary a 
statewide design for delivering services to handicapped children in Texas that 
includes rules for administering and funding the special education program. 
 
 
  sec.89.219. Special Education. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434574 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
           
  Special Education Funding 
 
  19 TAC sec.sec.89.250, 89.252-89.254 
 
  The amendments are proposed under the Texas Education Code, sec.21.501, which 
authorizes the State Board of Education to develop and modify as necessary a 
statewide design for delivering services to handicapped children in Texas that 
includes rules for administering and funding the special education program. 
 
 
  sec.89.250. Distribution of State Funds. 
 
  (a)-(b) (No change.) 
   
  (c) The special education attendance will be converted to contact hours by 
instructional arrangement and then to full-time equivalents. The full-time 
equivalent for each instructional arrangement is multiplied by the school 
district's adjusted basic allotment and then multiplied by the weight for the 
instructional arrangement as prescribed in the Texas Education Code, 
sec.16.151(a). Contact hours for any one student <nl>receiving <ol> [in] special 
education <nl>services<ol> may not exceed six hours a day or 30 hours a week for 
funding purposes. The total contact hours generated per week will be divided by 
30 to determine the full-time equivalents. Special education full-time 
equivalents generated will be deducted from the school district's average daily 
attendance for purposes of the regular education allotment. 
   
  (d) (No change.) 
   
  (e) A special education fund balance may be carried over to the next fiscal 
year and <nl>must be <ol> expended on the special education program <nl>in the 
subsequent year<ol>. State special education carryover funds [must be used in 
the special education program and] cannot be used for administrative costs. 
   
  (f) (No change.) 
   
  (g)  Students from birth through age two who are visually <nl>impaired<ol> 
[handicapped] or deaf or both and are served by the district shall be considered 
as eligible for ADA on the same basis as other students <nl>receiving<ol> [in] 
special education <nl>services <ol>. 
   
  (h)  Funding for the mainstream special education instructional arrangement 
shall be based on the average daily attendance of the students in the 
arrangement multiplied by the adjusted basic allotment/adjusted allotment 
(ABA/AA) and the.25 weight. The attendance shall not be converted to contact 
hours/full-time equivalents as with the other instructional arrangements.  
<nl>Effective September 1, 1994, this weight changes to 1.1. 
 
     
  sec.89.252. Allowable Expenditures with State Special Education Funds. 
 
  <nl>(a) Persons paid from special education funds shall be assigned to 
instructional or other duties in the special education program and/or to provide 
support services to the regular education program in order for students with 
disabilities to be included in the regular program. Support services shall 
include, but not be limited to, collaborative planning, co-teaching, small group 
instruction with special and regular education students, direct instruction to 
special education students, or other support services determined necessary by 
the admission, review, and dismissal committee for an appropriate program for 
the student with disabilities. Assignments may include duties supportive to 
school operations equivalent to those assigned to regular education personnel. 
   
  <nl>(b) Personnel assigned to provide support services to the regular 
education program as stated in subsection (a) of this section may be fully 
funded from special education funds. 
   
  <nl>(c)<ol>[(a) Personnel.] If personnel are assigned to special education on 
less than a full-time basis, <nl>except as stated in subsection (a) of this 
section,<ol> only that portion of time in which the personnel are assigned to 
students with <nl>disabilities <ol> [handicaps] shall be paid from state special 
education funds. 
   
  <nl>(d)<ol>[(b) Special materials, supplies, and equipment.] State special 
education funds may be used for special materials, supplies, and equipment which 
are directly related to the development and implementation of individual 
educational plans of students and which are not ordinarily purchased for the 
regular classroom. Office and routine classroom supplies are not allowable. 
Special equipment may include instructional and <nl>assistive <ol> 
[adaptive/assistive] technology devices, audiovisual equipment, computers for 
instruction or assessment purposes, and assessment equipment only if used 
directly with students. 
   
  <nl>(e)<ol>[(c)  Consultants.] State special education funds may be used to 
contract with consultants to provide staff development, program planning and 
program evaluation and instructional services, assessments and related services 
to students with <nl>disabilities <ol> [handicaps]. 
   
  <nl>(f)<ol>[(d)  Transportation.] State special education funds may be used 
for transportation only to and from residential placements as defined in sec.89. 
217(c)(2) of this title (relating to Related Services). Prior to using federal 
funds for transportation costs to and from a residential facility, a district 
must use state or local funds based on actual expenses up to the state 
transportation maximum for private transportation contracts. 
   
  <nl>(g)<ol>[(e) Travel.] State special education funds may be used to pay 
special education staff travel to perform services. Funds may also be used to 
pay travel of staff to attend staff development meetings for the purpose of 
improving performance in assigned positions. The purpose for attending shall not 
include time spent in performing functions relating to the operation of 
professional organizations. 
   
  <nl>(h)<ol>[(f) Administrative cost.] A maximum of 15% of state special 
education funds may be used by a school district for general administrative 
costs. General administrative costs include the special education program's 
share of: 
 
  (1)-(6) (No change.) 
 
       
  sec.89.253. School Districts Serving Out-of-District Students with 
<nl>Disabilities [Handicaps] Residing in Residential Care and Treatment 
Facilities. 
 
  (a)-(b) (No change.) 
   
  (c) Funds to serve students with <nl>disabilities <ol> [handicaps] residing in 
facilities described in subsection (a) of this section shall be generated by 
full-time equivalents based on the appropriate instructional arrangement as 
described in sec.89.242 of this title (relating to Instructional Arrangements 
and Settings). 
   
  (d)  State special education funds shall be allocated for eligible students 
[with handicaps] who are expected to reside in the following special schools a 
minimum of four consecutive weeks, as documented by an appropriate authority. 
 
  (1)-(3) (No change.) 
     
  (e) Students with <nl>disabilities<ol> [handicaps] who reside in these 
facilities may be included in the average daily attendance of the district in 
the same way as all other students <nl>receiving<ol> [in] special education 
<nl>services <ol>. 
 
     
  sec.89.254. Comprehensive Services for Students with Visual 
<nl>Impairments<ol> [Handicaps]. If all available resources have been used and 
additional educational needs which are unique because of a visual 
<nl>impairment<ol> [handicapping condition] are identified, school districts or 
education service centers may apply for state funds for supplemental services 
for students who are visually <nl>impaired <ol> [handicapped]. These funds may 
be used for students (from birth) who have not reached their 22nd birthday on 
September 1 of the current scholastic year. Funding will be allocated based upon 
substantial program needs rather than on a formula. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434575 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
               Chapter 97. Planning and Accreditation 
  
  19 TAC sec.sec.97.1-97.9 
 
  The Texas Education Agency (TEA) proposes amendments to  ssec.97.1-97.3 and 
new sec.sec.97.4-97.9, concerning requirements and procedures for school 
accreditation, to comply with Senate Bill 7, 73rd Legislature. The amended and 
new rules implement legislative changes to the accreditation process in the 
following areas: accreditation ratings assigned to districts; emphasis placed on 
the performance of individual campuses and attendant intervention strategies; 
and scheduling on-site accreditation peer reviews. 
 As a result of these changes, TEA is reorganizing Chapter 97. Old sec.sec.97. 
4-97.6, which are proposed for repeal in a separate submission, are amended and 
renumbered here as sec.97.5, sec.97.6, and sec.97.9, respectively. 
 Ruben Olivarez, executive deputy commissioner for accountability, has 
determined that for the first five-year period the rules are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the rules. 
 Mr. Olivarez and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the rules 
are in effect the public benefit anticipated as a result of enforcing the rules 
will be an accountability system driven by excellence and equity in student 
performance. The system will help educators pinpoint weaknesses and apply 
intervention and assistance where they are needed and as close as possible to 
the actual point of delivery of educational services. 
 There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the rules as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed amendments and new rules submitted 
under the Administrative Procedure Act and the Texas Register Act must be 
received by the commissioner of education not more than 15 calendar days after 
notice of a proposed change in the rules has been published in the Texas 
Register . 
 The amendments and new rules are proposed under the Texas Education Code, 
sec.35.062, which authorizes the State Board of Education to adopt rules for the 
accreditation of school districts. 
 
 
  sec.97.1. Purpose of Accreditation. The purpose of school accreditation is to 
assure that school districts will be held accountable for excellence in student 
performance and equity for all segments of the student population. 
Accountability for outcomes will be determined through assessment of student 
performance on the academic excellence indicators and other performance 
indicators. Accountability will also include elements of effective school 
improvement and planning activities, as well as site-based <nl>decision 
making<ol> [decision-making] directed toward the improvement of outcomes for all 
students. Under this accountability system, schools will receive optimal 
encouragement to secure release from state laws and rules which inhibit student 
performance and will have maximum flexibility in determining the kinds of 
programs needed to achieve excellence and equity standards, consistent with 
state and federal laws and State Board of Education rule. 
 
   
  sec.97.2. Accreditation Required. 
 
  (a) Each school district must be accredited by the Central Education Agency. 
   
  (b) The accreditation of a school district is based primarily on its overall 
performance by all <nl>student populations and on the performance of each of its 
individual campuses<ol> [students] as demonstrated on state adopted academic 
excellence indicators and other indicators of student performance. Additional 
criteria for determining accreditation status shall include evidence of [equity 
and safety for all students]; <nl>appropriate administration of statewide 
assessments; adherence to civil rights protection; adherence to financial 
accountability requirements;<ol> and effectiveness of governance, planning, 
<nl>decision making <ol> [decision-making], <nl>school safety,<ol> and program 
quality in respect to student outcomes. 
   
  (c)  Accreditation by a voluntary association is a local option of the 
district, but it does not substitute for accreditation by the Central Education 
Agency. 
 
     
  sec.97.3. Types of Accreditation Status. The specific procedures for 
determining accreditation status based on performance measures will be 
established by the commissioner of education. The types of status districts may 
receive are as follows. 
 
  (1) Exemplary. In accordance with the established procedures, a district may 
be classified as exemplary if there is evidence of sustained [exemplary] 
performance <nl>at or above the established criteria on all campuses by all 
student populations<ol> on all academic excellence indicators <nl>for which 
performance data are available and criteria have been established <ol> [and 
other student performance measures that is achieved equitably across all student 
populations]. Evidence must also demonstrate that the health and safety of all 
students are ensured, and that the district is in compliance with state and 
federal laws <nl>and State Board of Education rule<ol>. 
 
  (A) The performance results reported on each of the academic excellence 
indicators <nl>for all student populations<ol> shall be the primary 
consideration of exemplary status. 
   
  (B) A district may retain its exemplary status unless it fails to <nl>satisfy 
or meet the established criteria<ol> [maintain standards of excellence and 
equity] in an annual review of performance  <nl>on each of its campuses for all 
student populations <ol> on each of the academic excellence indicators or fails 
to maintain standards on other accreditation criteria. 
     
  (2) Recognized. <nl>In accordance with the established criteria, a<ol> [A] 
district may be classified as recognized if <nl>there is evidence of<ol> [in 
accordance with the established procedures an assessment indicates] sustained 
[high level] performance  <nl>on each of its campuses <ol> on all academic 
excellence indicators <nl>for which performance data are available and criteria 
have been established<ol> [and other student performance measures] for all 
student populations. Evidence must also demonstrate that health and safety of 
all students are ensured, and the district is in compliance with state and 
federal laws <nl>and State Board of Education rule <ol>. 
 
  (A) The performance results reported on each of the academic excellence 
indicators shall be the primary consideration of recognized status. 
   
  (B) A district may retain its recognized status unless it fails to maintain 
<nl>recognized<ol> standards [of excellence and equity] in an annual review of 
performance  <nl>on each of its campuses for all student populations <ol> on 
each of the academic excellence indicators or fails to maintain standards on 
other accreditation criteria. 
     
  (3) Accredited. In accordance with the established procedures, a district 
shall be classified as accredited when it meets the [basic] standards of 
<nl>acceptable<ol> performance on all of the [state's] academic excellence 
indicators <nl>for which performance data are available and criteria have been 
established<ol> [and other student performance measures,] and maintains equity 
in achievement across all student populations. [Analyses must demonstrate that 
the district is attaining sustained improvement in student performance for all 
student groups.] Evidence must also demonstrate that <nl>the<ol> health and 
safety of all students are ensured, and that the district is in compliance with 
state and federal laws <nl>and State Board of Education rule<ol>. 
   
  [(4) Accredited, conditional. A newly formed district, or a district adding 
grades, shall be placed on accredited, conditional status until the agency can 
conduct a full accreditation review and establish an accreditation status for 
the new district or the total district, including the new grade levels.] 
   
  <nl>(4) <ol>[(5)] Accredited, <nl>warned<ol> [advised]. In accordance with the 
established procedures, a district shall be classified as accredited, 
<nl>warned<ol> [advised] when the district's students fail to achieve the 
[basic] standard of <nl>acceptable<ol> performance on the academic excellence 
indicators and other student performance measures, substantial inequities in 
achievement exist <nl>among student populations <ol>, the district fails to 
sustain gains in student performance, evidence of serious threats to the health 
or safety of students exists, and/or a district remains substantially out of 
compliance with state or federal laws <nl>and State Board of Education rule 
<ol>. 
   
  [(6) Academically unaccredited. In accordance with the established procedures, 
a district shall be classified as academically unaccredited when a substantial 
percentage of the district's students fail to achieve the basic standard of 
performance on the state's academic excellence indicators and other student 
performance measures, a wide disparity in student achievement exists across 
student populations, analyses indicate a sustained drop in student performance, 
evidence of severe threats to the health or safety of students exists, and/or 
when a district remains substantially out of compliance with state or federal 
laws.] 
 
     
  sec.97.4. Types of Campus Performance Ratings.  The specific procedures for 
determining campus performance ratings, based on overall performance by all 
student populations as demonstrated on state adopted academic excellence 
indicators and other indicators of student performance, will be established by 
the commissioner of education. Additional criteria will be established by the 
commissioner of education for special campuses which serve unique populations 
and/or provide alternative education programs. The types of performance ratings 
campuses may receive are as follows: 
 
  (1)  Exemplary. In accordance with the established procedures, campuses must 
meet the same standards in respect to each of the designated academic excellence 
indicators that apply to the district level and are set forth for district 
exemplary status. 
   
  (2) Recognized. In accordance with the established procedures, campuses must 
meet the same standards in respect to each of the designated academic excellence 
indicators that apply to the district and are set forth for district recognized 
status. 
   
  (3)  Acceptable. In accordance with the established criteria, campuses are 
rated as acceptable as long as they maintain performance that is above the 
clearly unacceptable performance level set by the commissioner and do not 
otherwise qualify as exemplary or recognized. 
   
  (4) Low Performing. In accordance with the established procedures, campuses 
are rated as "low performing" if they fail to achieve the standard of acceptable 
performance on the academic excellence indicators and other student performance 
measures. 
 
     
  sec.97.5. Criteria for Accreditation. 
 
  (a) The academic excellence indicators stipulated in law and other performance 
indicators as adopted by the State Board of Education shall be the main 
consideration of the Central Education Agency in the rating of a district. 
Performance on the academic excellence indicators required by this section shall 
be used for the purposes of evaluation and accreditation. The indicators must be 
based on information that is disaggregated with respect to race, ethnicity, 
gender, and socioeconomic status. Use of the academic excellence indicators in 
the rating process shall include consideration of district and campus 
performance in relation to: 
 
  (1) standards established for each indicator; 
   
  (2)  required improvement necessary to meet the state standards and for 
students to meet exit requirements as defined by the commissioner of education; 
and 
   
  (3) comparable improvement of the district and campus relative to a state 
profile developed from the total state student performance data base. 
     
  (b) District and campus planning and decision making toward improved student 
performance will be the primary consideration during the on-site peer review and 
include: 
 
  (1) recommendations for locally directed school restructuring initiatives 
and/or regional education service center technical assistance; and 
   
  (2) recommendations to the commissioner regarding the level of intervention 
measures that may need to be imposed in order to bring about the desired level 
of improvement. 
     
  (c)  Among other criteria stipulated in law, the following criteria may be 
considered under regular or special investigations by the commissioner of 
education when deemed appropriate: 
 
  (1) current information on any outstanding agency requests in respect to 
financial or compliance audits, or civil rights issues; 
   
  (2) the quality of the district's planning for site-based decision making; 
   
  (3) the effectiveness of the school district's ability to provide physical 
facilities that are safe and designed to meet the educational needs of all 
students in an environment conducive to learning; and 
   
  (4) the effectiveness of the school district's ability to govern and manage 
the operations of the district in accordance with statewide standards and duties 
of a school board member. 
 
       
  sec.97.6. The Accreditation Process. 
 
  (a) For the purpose of issuing accreditation status and performance ratings, 
the agency shall annually review the performance of each school district and 
campus in the state on the indicators adopted under the Texas Education Code, 
sec.35.041. Accreditation status and performance ratings will be based on the 
district's performance and on the performance of the campuses within the 
district on the accreditation criteria as described in sec.97.4 of this title 
(relating to Criteria for Accreditation) and their history in respect to 
compliance with state and federal laws and State Board of Education rules. Based 
on standards established by the commissioner of education, districts will be 
assigned an appropriate accreditation status and campuses will be assigned an 
appropriate performance rating. 
   
  (b) A district's accreditation status may be raised or lowered based on the 
district's performance or may be lowered based on the unacceptable performance 
of one or more campuses in the district. The commissioner must review at least 
annually the performance of a district for which the accreditation rating has 
been lowered due to unacceptable student performance and shall raise the rating 
of the district based on demonstrated improved student performance and other 
established criteria. 
   
  (c) The commissioner shall establish the level of frequency of on-site visits, 
and the level of investigative review needed, dependent upon the district's or 
campus' performance as measured annually on the academic excellence indicators, 
the history of the district's or campus' equity and performance trends, the 
history of the district's compliance with state and federal laws and State Board 
of Education rules, and health and safety issues. 
   
  (d) If an annual review indicates low performance on one or more of the 
academic excellence indicators on one or more campuses in a district, the agency 
may conduct an on-site review of those campuses only. 
   
  (e) The accreditation on-site review and intervention process shall normally 
be conducted by a select group of peers of professional district staff. Whenever 
practicable, the majority of the members of the accreditation review teams shall 
be composed of trained persons who have experience in school districts similar 
to the districts they are assigned to review as part of the accreditation review 
process. Agency staff will manage and facilitate the peer review process. The 
team will review, gather, and analyze data pertaining to student performance, 
district and campus planning and decision making, compliance, equity, 
governance, health, and safety. The team shall report its on-site visit findings 
to the commissioner. Agency staff will review all performance reports, 
compliance reports, other pertinent district records and findings of the review 
team, and the commissioner will determine the level of technical assistance or 
intervention necessary to improve student performance in respect to standards 
established by the commissioner of education. 
   
  (f)  Districts that receive the status of accredited, warned, will be reviewed 
on-site at least annually to determine the level of oversight, technical 
assistance, and/or level of intervention required, and to monitor progress in 
respect to student performance, compliance, and other indicators of improvement. 
   
  (g) The Central Education Agency shall give written notice to the 
superintendent and board of trustees of each district at least six weeks before 
a scheduled accreditation visit. 
   
  (h) The procedures followed during the on-site accreditation visits will be 
established by the commissioner of education and provided to the district along 
with the notice of visitation. The procedures shall include protocols for 
obtaining information from campus administrators, teachers, parents, and 
students. 
   
  (i) At the conclusion of a district's accreditation visit, the accreditation 
team shall orally report its preliminary findings to the superintendent and 
district-level decision making committee as described in the Texas Education 
Code, sec.21.930. A written report shall be sent to the district within 45 days. 
The written report is a public document subject to the provisions of the Texas 
Open Records Act. 
   
  (j) At the conclusion of the campus visit, the peer intervention team shall 
orally report its preliminary findings to the campus principal and site-based 
decision making committee established under Texas Employment Code, sec.21.931. A 
written report shall be sent to the district within 45 days. The written report 
is a public document subject to the provisions of the Texas Open Records Act. 
 
     
  sec.97.7. Special Investigations. 
 
  (a) Under certain circumstances, the commissioner of education may order a 
review team of Texas Education Agency (TEA) staff to conduct an on-site special 
investigation. The commissioner may raise or lower a school district's 
accreditation rating and may apply any sanction or intervention provided in 
statute as a result of the investigation. The commissioner may order the 
investigation in response to a complaint submitted to the Central Education 
Agency regarding any of the following: alleged violations of civil rights or 
other requirements imposed on the state by federal law or court order; alleged 
violations of the accreditation criteria related to effective governance 
operations; or established compliance reviews of the district's financial 
accounting practices and state and federal program requirements. The 
commissioner shall determine separately the process for special investigative 
visits in each case. 
   
  (b) A written report shall be sent to the district within 30 days after the 
investigation is complete. The written report is a public document subject to 
the provisions of the Texas Open Records Act. 
 
     
  sec.97.8. The Appeal Process. 
 
  (a) The provisions of this section apply to sec.97.6 of this title (relating 
to The Accreditation Process) and  s97.7 (relating to Special Investigations). 
Within 15 days after receiving the accreditation or special investigation 
report, the school district may request resolution of any disagreement by 
submitting to agency staff a written response containing objections to the 
report. The district waives any objections not contained in the response. The 
time line may be extended under special circumstances, as determined by agency 
staff. Agency staff must respond within 15 days after receiving the written 
response. If the objections are not resolved, the district shall be sent an 
election notice. The district must choose between informal or formal resolution 
within 15 days after receiving the notice. The commissioner or the 
commissioner's designee shall review the report for informal or formal 
resolution, as described under the Administrative Procedures Act. 
   
  (b) As soon as possible, the school district board of trustees must review the 
complete written report, as modified by any appeals, at a regularly scheduled 
board meeting. 
 
     
  sec.97.9. Non-public Schools. <ol> The commissioner of education shall be 
authorized to review the criteria of other accrediting bodies that accredit 
nonpublic schools in Texas. Where the commissioner determines that such criteria 
are comparable to the standards in this chapter, the commissioner may recognize 
the accrediting association. The commissioner shall disseminate information on 
schools accredited by associations recognized by the commissioner of education. 
Student credits earned in nonpublic schools accredited by a recognized 
association shall be transferable to Texas public schools, and teacher service 
in accredited nonpublic schools shall be creditable in accordance with Chapter 
121, Subchapter C, of this title (relating to Years of Service for Salary 
Increment Purposes). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434576 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
         
  19 TAC sec.sec.97.4-97.6 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Education Agency or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Texas Education Agency (TEA) proposes the repeal of  ssec.97.4-97.6, 
concerning requirements and procedures for school accreditation. In a separate 
submission, TEA is proposing to amend several existing rules and to add several 
new rules in Chapter 97 to comply with Senate Bill 7, 73rd Legislature. As a 
result, the chapter is being reorganized, and sec.sec.97.4-97.6 are being 
renumbered as sec.sec.97.5, 97.6, and 97.9, respectively. 
 Ruben Olivarez, executive deputy commissioner for accountability, has 
determined that for the first five-year period the repeals are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the repeals. 
 Mr. Olivarez and Criss Cloudt, associate commissioner for policy planning and 
evaluation, have determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be a clearer, more concise statement of the rules relating to 
school accreditation. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the repeals 
as proposed. 
 Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Evaluation, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. All 
requests for a public hearing on the proposed repeals submitted under the 
Administrative Procedure Act and the Texas Register Act must be received by the 
commissioner of education not more than 15 calendar days after notice of a 
proposed change in the rules has been published in the Texas Register. 
 The repeals are proposed under the Texas Education Code,  s35.062, which 
authorizes the State Board of Education to adopt rules for the accreditation of 
school districts. 
 
 
  sec.97.4. Criteria for Accreditation. 
 
   
  sec.97.5. The Accreditation Process. 
 
   
  sec.97.6. Nonpublic Schools. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 12, 1994. 
 TRD-9434577 
  Criss Cloudt 
 Associate Commissioner, Policy Planning and Evaluation 
 Texas Education Agency 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 463-9701 
         
               
  TITLE 22. EXAMINING BOARDS 
 Part X. Texas Funeral Service Commission 
  Chapter 203. Licensing and Enforcement-Specific Substantive Rules 
  
  22 TAC sec.203.13 
 
  The Texas Funeral Service Commission proposes an amendment to sec.203.13, 
concerning minimum standards for embalming. The amendment provides for embalmers 
licensed in other states to assist embalmers licensed in Texas in the event of a 
disaster of major proportions. 
 Larry Farrow, executive director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
government, local government, or small businesses as a result of enforcing or 
administering the section, and there will be no effect on local employment. 
 Mr. Farrow also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section is improvement of enforcement, training of embalmers and reaction to 
major disasters. 
 The amendment is promulgated under the authority of the Texas Tax Code, Title 
2; therefore, no analysis of the effect on businesses is required. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed. 
 Comments on the proposal may be submitted to Larry Farrow, Executive Director, 
Texas Funeral Service Commission, 8100 Cameron Road, Suite 550, Austin, Texas 
78754-3896. 
 The amendment is proposed under Texas Civil Statutes, Article 4582b, which 
provide the Texas Funeral Service Commission with the authority to promulgate 
rules and regulations. 
 The statute affected by the amendment is Texas Civil Statutes, Article 4582b. 
 
 
  sec.203.13. Minimum Standards for Embalming. 
 
  (a) (No change.) 
 
  (1) Embalming shall be performed only be embalmers licensed by the commission, 
in properly equipped and licensed establishments, or, in the event of a disaster 
of major proportions, in facilities designated by a medical examiner, coroner, 
or state health officials. Only <nl>three<ol> [two] types of people may assist 
licensed embalmers in embalming: provisional embalmers<nl>;<ol> [and qualified 
mortuary] students <nl>who are enrolled in an accredited school of mortuary 
science; and, in the event of a disaster of major proportions and with the prior 
approval of the executive director, embalmers licensed in another state as long 
as they are working with and under the general supervision of a person licensed 
as an embalmer in this state [whose participation is authorized by an accredited 
school of mortuary science as part of that school's curriculum]. 
   
  (2)-(17) (No change.) 
     
  (b)-(c) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 5, 1994. 
 TRD-9434468 
  Larry A. Farrow 
 Executive Director 
 Texas Funeral Service Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 834-9992 
         
                 
  TITLE 37. PUBLIC SAFETY AND CORRECTION 
 Part III. Texas Youth Commission 
  Chapter 85. Admission and Placement 
  
  Placement Planning 
 
  37 TAC sec.85.40 
 
  The Texas Youth Commission (TYC) proposes new sec.85.40, concerning temporary 
admission awaiting transportation. The new rule allows temporary admission into 
security units of TYC institutional facilities for TYC youth awaiting 
transportation to an assigned location. 
 John Franks, director, Fiscal Affairs, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a more efficient system of transporting TYC youth. There will be 
no effect on small businesses. There is no anticipated economic cost to persons 
who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The new section is proposed under the Human Resources Code, sec.61.034(a), 
which provides the Texas Youth Commission with the authority to make rules 
appropriate to the proper accomplishment of its functions. 
 The proposed rule implements the Human Resource Code, sec.61.034(b). 
 
 
  sec.85.40. Temporary Admission Awaiting Transportation. 
 
  (a) Policy. The Texas Youth Commission (TYC) allows temporary admissions into 
security units of TYC institutional facilities for youths awaiting 
transportation. 
   
  (b) Rules. 
 
  (1) Overnight stays in institutional security units is allowed when a youth's 
destination cannot be reached in a single day, including: 
 
  (A) following a Level I/II hearing that results in transportation to another 
facility; or 
   
  (B) transportation between facilities not resulting from disciplinary actions. 
     
  (2) The following procedures shall be utilized. 
 
  (A) A youth may be detained in a training school for up to 48 hours pending 
transportation. 
   
  (B) Each request for security admission pending transportation is initiated by 
the transportation coordinator. 
   
  (C) Approval for the admission is obtained from the institutional 
superintendent or designee. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434462 
  Steve Robinson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 483-5244 
         
                   Chapter 89. Youth Rights and Remedies 
  
  37 TAC sec.89.1 
 
  The Texas Youth Commission (TYC) proposes an amendment to sec.89.1, concerning 
basic youth rights. The amendment adds criteria for reimbursement by TYC to a 
TYC youth for personal possessions that have been lost or damaged due to staff 
negligence. 
 John Franks, director, Fiscal Affairs, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to ensure that youth are reimbursed for personal possessions 
that have been lost or damaged due to staff negligence. There will be no effect 
on small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The amendment is proposed under the Human Resources Code, sec.61.0431, which 
provides the Texas Youth Commission with reimburse children committed to the 
commission for personal property lost or damaged as a result of negligence by 
the staff of the commission. 
 The proposed rule implements the Human Resource Code, sec.61.034. 
 
 
  sec.89.1. Basic Youth Rights. 
 
  (a) (No change.) 
   
  (b) Rights. 
 
  (1)-(3) (No change.) 
   
  (4) Personal Possessions. 
 
  (A) (No change.) 
   
  (B) Discussion: 
 
  (i)-(iv) (No change.) 
   
  <nl>(i)<nl> Youth may request reimbursement for personal possessions lost or 
damaged due to staff negligence. Evidence of the item's existence and value of 
clothing/property must accompany request. Youth are responsible for assuring 
that all personal possessions are recorded on the Clothing/Personal Property 
Inventory Form CCF-501 or CCF-502. The inventory of items shall describe the 
type/nature of property in enough detail to indicate the value of said property 
(i.e., gold-plated, nickel-plated, etc.). 
       
  (5)-(14) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434463 
  Steve Robinson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 483-5244 
         
               Chapter 91. Discipline and Control 
  
  Control 
 
  37 TAC sec.91.69 
 
  The Texas Youth Commission (TYC) proposes an amendment to sec.91.69, 
concerning detention. The amendment adds criteria for temporary placement to TYC 
youth in a TYC training school as a detention facility after apprehension by a 
TYC apprehension specialist. This will allow for temporary detention of youth 
while the apprehension specialist is waiting for placement instructions. 
 John Franks, director, Fiscal Affairs, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a more efficient apprehension process of TYC youth. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The amendment is proposed under the Human Resources Code, sec.61.093, which 
provides the Texas Youth Commission with the authority to detain a child who has 
been committed to the commission and released under supervision and broken the 
conditions of release, in any suitable place until the child is transported to a 
commission facility. 
 The proposed rule implements the Human Resource Code, sec.61.034. 
 
 
  sec.91.69. Detention. 
 
  (a) (No change.) 
   
  (b) Rules. 
 
  (1)-(3) (No change.) 
   
  (4) Training School Detention. 
 
  (A)-(F) (No change.) 
   
  <nl>(G) When a TYC apprehension specialist apprehends a youth resulting from a 
directive to apprehend, he informs the regional director of the apprehension and 
may wait for placement instructions. At his discretion he may transport the 
youth directly to a local detention facility or to a TYC institution. In this 
case, he will notify the regional director of the apprehension and placement as 
soon as possible following the placement. The apprehension specialist is not 
considered to be the referring staff. 
   
  <nl>(H)<ol>[(G)] The referring staff is responsible for presenting the 
following documentation at the time of admission: 
 
  (i)-(iii) (No change.) 
     
  <nl>(I)<ol>[(H)] Upon admission the youth's case is assigned to the 
instructional placement coordinator who is responsible at a minimum for: 
 
  (i)-(ii) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434465 
  Steve Robinson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 483-5244 
         
                 
  37 TAC sec.91.75 
 
  The Texas Youth Commission (TYC) proposes new sec.91.75, concerning riot 
control. The new rule will establish criteria for TYC staff to take steps 
reasonably necessary to regain control and terminate a riot occurring on a TYC 
facility campus. 
 John Franks, director, Fiscal Affairs, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a safer environment for TYC youth and staff. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The new section is proposed under the Human Resources Code, sec.61.034(a), 
which provides the Texas Youth Commission with the authority to make rules 
appropriate to the proper accomplishment of its functions. 
 The proposed rule implements the Human Resource Code, sec.61.034(b). 
 
 
  sec.91.75. Riot Control. 
 
  (a) Policy, The Texas Youth Commission (TYC) staff will take the steps 
reasonably necessary to regain control and terminate a riot occurring on a TYC 
facility campus with as few injuries as possible. 
   
  (b) Rules. 
 
  (1) Use of Force. 
 
  (A) Force may be used only in accordance with GOP.67.09, sec.91.59 relating to 
Use of Force and GOP.67.13, sec.91.63 relating to Mechanical Restraint Equipment 
unless specifically stated otherwise in this section. 
   
  (B) Plastic restraints may be used at any TYC institution and at Evins 
Regional Juvenile Center if necessary to control youth during a riot when a 
sufficient number of mental cuffs are not readily available. 
 
  (i) Superintendent/program administrator or designee authorization must be 
obtained prior to use of plastic cuffs if possible or immediately after, if not 
possible. 
   
  (ii) Cuffs will be limited to short term use and only until the youth can be 
moved to a secure place. 
   
  (iii) The staff applying the cuffs will have the tool designed for removal in 
his/her possession at times during the use of the cuffs. 
   
  (iv) Cuffs shall be monitored continuously to ensure proper circulation. 
       
  (2) Outside Assistance. Law enforcement assistance may be requested at the 
discretion of the superintendent/facility administrator. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434466 
  Steve Robinson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 483-5244 
         
                 Chapter 93. General Provisions 
  
  Youth Property 
 
  37 TAC sec.93.21 
 
  The Texas Youth Commission (TYC) proposes an amendment to sec.93.21, 
concerning youth personal property. The amendment adds criteria for 
reimbursement by TYC to a TYC youth for personal possessions that have been lost 
or damaged due to staff negligence. 
 John Franks, director, Fiscal Affairs, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to ensure that youth are reimbursed for personal possessions 
that have been lost or damaged due to staff negligence. There will be no effect 
on small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The amendment is proposed under the Human Resources Code, sec.61.0431, which 
provides the Texas Youth Commission will reimburse children committed to the 
commission for personal property lost or damaged as a result of negligence by 
the staff of the commission. 
 The proposed rule implements the Human Resource Code, sec.61.034. 
 
 
  sec.93.21. Youth Personal Property. 
 
  (a) (No change.) 
   
  (b) Rules. 
 
  (1) Inventory. 
 
  (A) All youth property is searched upon admission to statewide reception 
center (SRC) <nl>and to the<ol> [or] initial placement [if the youth is admitted 
by the mobile diagnostic team]. 
   
  (B) (No change.) 
   
  (C) An inventory of a youth's clothing and property is established and 
maintained by staff. The inventory lists all property and personal clothing 
items, including TYC issued clothing and clothing discarded. <nl>Youth is 
responsible for ensuring that all personal property is recorded on the personal 
property inventory form by maintaining his/her copy and by submitting changes in 
inventory to staff. The inventory shall describe the type/nature of the property 
in enough detail to indicate the value of the property. 
   
  <nl>(D) Each facility is responsible for instructing the youth on property 
inventory and for promptly updating with each new acquisition. 
   
  <nl>(E)<ol>[(D)] The inventory is filed in the youth's masterfile. Youth 
receives a copy. 
   
  <nl>(F)<ol>[(E)] All personal and issued clothing is thoroughly cleaned and 
disinfected, if necessary, before allowing the youth to keep or wear clothing. 
     
  <nl>(2) Loss or Damage. 
 
  <nl>(A) TYC is neither liable for nor will replace lost, stolen or damaged 
personal items of youth unless loss or damage can be shown to have resulted from 
staff negligence. 
   
  <nl>(B) Youth may request reimbursement for personal possessions lost or 
damaged due to staff negligence. Only student benefit funds may be expended. 
   
  <nl>(C) No reimbursement will be made for lost or damaged property which is 
not included on the youth's personal property inventory. Absent a sufficient 
description indicating otherwise, the property will be assigned an ordinary 
value. 
   
  <nl>(D) No reimbursement will be made unless there is sufficient evidence to 
indicate that the loss was the result of staff negligence. 
   
  <nl>(E) Unless approval is obtained from the director of institutions or the 
director of community services, no reimbursement from the student benefit fund 
shall exceed $100 per loss. 
     
  <nl>(3)<ol>[(2)] Authorized Program Change. Transportation arrangement for the 
personal property of a youth who is authorized to change program locations is 
the responsibility of the sending location. Property will usually travel with 
the youth. 
   
  <nl>(4)<ol>[(3)] Unauthorized Absence. Any personal clothing or other property 
that remains with any TYC facility, program, or contract placement when the 
youth is no longer present due to unauthorized absence is held or disposed of by 
the administrator in compliance with the following rules. 
 
  (A)-(E) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434467 
  Steve Robinson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 483-5244 
         
                       
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 19. Long-Term Care Nursing Facility Requirements for Licensure and 
Medicaid Certification 
  
  Subchapter S. Reimbursement Methodology for Nursing Facilities 
 
  40 TAC sec.19.1807 
 
  The Texas Department of Human Services (DHS) proposes an amendment to 
sec.19.1807, concerning rate setting methodology, in its Long-Term Care Nursing 
Facility Requirements rule chapter. The purpose for the amendment is to comply 
with a Health Care Financing Administration audit recommendation to delete the 
policy that states that DHS lowers the Medicaid rate to the provider's customary 
charge when that charge is consistently less than the Medicaid rate for the same 
services. Since DHS does not collect the needs data on private-pay patients, DHS 
is unable to make the comparison between the Medicaid rate and the provider's 
customary charge required by the policy. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be deletion of an obsolete and unenforceable rule. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the proposed amendment. 
 Questions about the content of the proposal may be directed to Jack Boland at 
(512) 450-4055 in DHS's Rate Analysis Department. Comments on the proposal may 
be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-319, 
Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-
9030, within 30 days of publication in the Texas Register. 
 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs; and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provides the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 The amendment implements the Human Resources Code, sec. s32.028 and 32.029. 
 
 
  sec.19.1807. Rate Setting Methodology. 
 
  (a)-(c) (No change.) 
   
  [(d) Exception to the reimbursement rate determined by the Texas Board of 
Human Services. The facility's average reimbursement rate set by the Texas Board 
of Human Services is lowered to the provider's customary charge if the 
provider's customary charge is consistently less than the average Medicaid 
reimbursement rate for the same service. Customary charge is defined in this 
case as the average rate charged to non-Medicaid clients for the same service.] 
   
  <nl>(d)<ol>[(e)] Nurse aide training and competency evaluation costs. 
 
  (1) DHS reimburses nursing facilities for the actual costs of training and 
testing nurse aides as required under the Omnibus Budget Reconciliation Act of 
1987 (OBRA '87). Payments are based on cost reimbursement vouchers that are to 
be submitted quarterly. Allowable costs are limited to those costs incurred for 
training provided after October 1, 1990, for: 
 
  (A) actual training course expenses up to a set amount determined by DHS per 
nurse aide; 
   
  (B) competency evaluation; 
   
  (C) supplies and materials used in the nurse aide training not already covered 
by the training course fee. 
     
  (2) Nurse aide salaries while in training are factored into the vendor rate 
and are not to be included on the reimbursement voucher. 
   
  (3) Training programs that exceed the amount as specified in paragraph (1)(A) 
of this subsection must have prior approval by DHS before costs can be 
reimbursed by making a written request to Provider Billing Services. The written 
request should include: 
 
  (A) name of facility; 
   
  (B) description of training program that the facility wants to receive 
reimbursement approval; 
   
  (C) reason why the requested training program is going to exceed the 
reimbursement ceiling; 
   
  (D) reason why the nursing facility cannot utilize a training program under 
the reimbursement ceiling and what steps the facility has taken to explore more 
cost efficient training courses. 
     
  (4) All prior approval requests as outlined in paragraph (3) of this 
subsection must be submitted to DHS, Provider Billing Services. DHS will make 
the final decision on these requests. 
   
  (5) All nurse aide training courses must be approved by the Texas Department 
of Health (TDH) before DHS can reimburse costs associated with them. 
   
  (6) Nursing facilities are responsible for tracking and documenting nurse aide 
training costs for each nurse aide trained. All documentation is subject to DHS 
audits. If substantiating documentation for amounts billed to DHS cannot be 
verified, DHS will immediately recoup funds paid to the facility. 
   
  (7) Individuals who have successfully completed a nurse aide training and 
competency evaluation program (NATCEP) may be directly reimbursed for costs 
incurred in completing a NATCEP. The individual must meet all of the conditions 
specified in subparagraphs (A)-(E) of this paragraph. 
 
  (A) The individual must not have been employed at the time of completing the 
NATCEP. 
   
  (B) The individual must have been employed by, or received an offer of 
employment from, a nursing facility not later than 12 months after successfully 
completing the NATCEP. 
   
  (C) The individual must have been employed by the facility for no less than 
six months. 
   
  (D) The nursing facility must not have claimed reimbursement for training 
expenses for the individual. 
   
  (E) The individual must be listed on the current Nurse Aide Registry. 
     
  (8) Individuals must submit cost reimbursement vouchers to DHS with proof that 
the individual has been employed by a facility for no less than six months. 
   
  (9) Individuals who leave nursing facility employment before accruing the 
required six months of employment, as specified in paragraph (7)(C) of this 
subsection, may receive 50% reimbursement as long as the individual was employed 
for no less than three months. 
   
  (10) Reimbursement to individuals may not exceed the reimbursement ceiling as 
detailed in paragraph (1)(A) of this subsection. 
     
  <nl>(e)<ol>[(f)] Oxygen costs. 
 
  (1) DHS reimburses nursing facilities for the actual costs of oxygen. Payments 
are based on cost reimbursement vouchers that are to be submitted quarterly. 
Allowable costs are limited to expenses incurred for: 
 
  (A) actual oxygen expenses up to a set amount determined by DHS, and 
   
  (B) liquid oxygen, oxygen concentrators, and tank refills (oxygen only). 
     
  (2) Durable medical equipment, including, but not limited to, tanks, 
concentrators, tubing, masks, valves, and regulators are included in the per 
diem (see sec.19.1701(b)(5)(A)(ii) of this title (relating to Vendor Payment 
(Items and Services Included)) for an explanation of covered durable medical 
equipment). 
   
  (3) The facility must accept payment by DHS as payment in full for services, 
and neither the oxygen provider nor the facility may charge the recipient, his 
family, or his trust fund an additional fee. 
   
  (4) Claims for services must be received by the 95th day from the last day of 
the preceding billing quarter assigned to the facility. 
 
  (A) Rejected or adjusted claims may be resubmitted. These claims must be 
received by the 180th day from the date of the claim rejection. 
   
  (B) Corrected claims must be received by the 180th day from the date of the 
paid claim. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 11, 1994. 
 TRD-9434536 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Earliest possible date of adoption: March 1, 1994 
 For further information, please call:(512) 450-3765 
         
                   Chapter 27. Intermediate Care Facilities for the Mentally 
Retarded (ICFs-MR) 
  
  Subchapter D. Reimbursement Methodology 
 
  40 TAC sec.27.413 
 
  The Texas Department of Human Services (DHS) proposes an amendment to 
sec.27.413, concerning rate setting methodology, in its Intermediate Care 
Facilities for the Mentally Retarded (ICFs-MR) rule chapter. The purpose for the 
amendment is to comply with a Health Care Financing Administration audit 
recommendation to delete the policy that states that DHS lowers the Medicaid 
rate to the provider's customary charge when that charge is consistently less 
than the Medicaid rate for the same services. Since DHS does not collect the 
needs data on private-pay patients, DHS is unable to make the comparison between 
the Medicaid rate and the provider's customary charge required by the policy. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposed section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section. 
 Mr. Raiford also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be deletion of an obsolete and unenforceable rule. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the proposed section. 
 Questions about the content of the proposal may be directed to Jack Boland at 
(512) 450-4055 in DHS's Rate Analysis Department. Comments on the proposal may 
be submitted to Nancy Murphy, Agency Liaison, Policy and Document Support-319, 
Texas Department of Human Services W-402, P.O. Box 149030, Austin, Texas 78714-
9030, within 30 days of publication in the Texas Register. 
 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs; and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 The amendment implements the Human Resources Code, sec.32.028 and sec.32.029. 
 
 
  sec.27.413 Rate Setting Methodology. 
 
  (a)-(d) (No change.) 
   
  [(e) Exception to the reimbursement rate determined by the Texas Board of 
Human Services. The reimbursement rate set by the Texas Board of Human Services 
for each reimbursement class is lowered to the provider's customary charge if 
the provider's customary charge is less than the Medicaid reimbursement rate for 
the same services. Customary charge is defined in this case as the average rate 
charged to non-Medicaid clients for the same services. ] 
   
  <nl>(e)<ol>[(f)] Supplemental reimbursement rate determination. The 
reimbursement rate for community based ICF-MR VI individuals whose needs require 
a significantly greater than normal amount of care is supplemented on an 
individual client basis when the appropriate score is indicated for all of the 
six criteria on the level-of-care assessment form. 
 
  (1) The level-of-care assessment form must indicate the client meets the 
qualifying criteria by having the following scores on all of the items 
indicated: 
 
  [graphic] 
   
  (2) The department determines the appropriate amount of supplemental 
reimbursement in the following manner. 
 
  (A) The estimated time required by the class of direct care personnel is 
derived from appropriate and applicable time studies to determine the delivery 
cost for the supplemental ICF-MR VI rate. Each time estimate is multiplied by a 
projected hourly wage rate and by class personnel, including a factor for 
payroll, taxes and benefit expenses. The employee compensation costs are 
estimated from DHS Medicaid provider cost reports and wage-and-hour survey data. 
   
  (B) The portion of the ICF-MR VI class rate which covers employee compensation 
costs for direct care personnel is determined. 
   
  (C) The amount of the ICF-MR VI supplemental reimbursement rate is determined 
by calculating the difference between the amounts in subparagraphs (A) and (B) 
of this paragraph. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas on January 11, 1994. 
 TRD-9434535 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: March 1, 1994 
 For further information, please call: (512) 450-3765 
         
                     Part III. Texas Commission on Alcohol and Drug Abuse 
  Chapter 154. DWI Repeat Offender Program Standards and Procedures 
  
  General Provisions 
 
  40 TAC sec. 154.2 
 
  The Texas Commission on Alcohol and Drug Abuse proposes an amendment to 
sec.154.2, concerning DWI Repeat Offender Program Standards and Procedures. The 
amendment to sec.154.2 is proposed due to amendments made to the Code of 
Criminal Procedure, Article 42.12, sec.13(j), during the last legislative 
session, making the DWI Repeat Offender Educational Program mandatory rather 
than optional. 
 Denise Hudson, director, fiscal services, has determined that for the first 
five-year period the rule is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Ms. Hudson also has determined that for each year of the first five years the 
section is in effect, the public benefit anticipated as a result of enforcing 
the section will result in more repeat DWI offenders being required to attend 
the educational program thus reducing recidivism rates. The anticipated economic 
cost to person who are required to comply with the section will vary from $150-
$350 depending on the course fee charged to participants by each approved DWI 
Repeat Offender Educational Program. 
 Comments on the proposal may be submitted to Denise F. Mosel, Division 
Assistant, Texas Commission on Alcohol and Drug Abuse, 710 Brazos Street, 
Austin, Texas 78701-2576. 
 The amendments are proposed under the Texas Code of Criminal Procedure, Article 
42.12, sec.13(j), which provides the Texas Commission on Alcohol and Drug Abuse 
with the authority to publish rules and regulations for approved DWI Repeat 
Offender Programs. 
 The code affected by this amendment is Texas Code of Criminal Procedure, 
Article 42.12, sec.13(j). 
 
 
  sec.154.2. Objective.  The intent of the commission by adoption of this 
chapter is to promulgate written rules, regulations, and standards for the 
uniform operation of educational programs for DWI repeat offenders. Adoption of 
these rules is authorized by the Texas Code of Criminal Procedure, Article 
42.12, sec.13(j), which provides that when a person has been convicted of the 
offense of DWI more than once <nl>and is placed on community supervision <ol>, a 
court <nl>shall  <ol>[may] require [or permit] that person to attend a DWI 
repeat offender educational program [if that person was previously required to 
attend an approved DWI education program] as a condition of <nl>community 
supervision <ol>[probation for their first DWI conviction]. By adoption of this 
chapter, it is the intention of the commission that DWI repeat offender 
educational programs shall utilize a uniform curriculum approved by the 
commission (the Texas DWI Intervention Program) which is specifically designed 
as an intensive educational course for repeat offenders. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434479 
  David P. Tatum 
 Interim Eecutive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 867-8720 
         
           
  DWI Repeat Offender Program Standards 
 
  40 TAC sec.154.28 
 
  The Texas Commission on Alcohol and Drug Abuse proposes an amendment to 
sec.154.28, concerning DWI Repeat Offender Educational Program Standards and 
Procedures. An amendment to sec.154.28 is proposed in order to allow a wider 
range of persons to qualify for admittance into the DWI Repeat Offender 
Educational Program administrator/instructor training program. 
 Denise Hudson, director, fiscal services, has determined that for the first 
five-year period the rule is in effective there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section. 
 Ms. Hudson also has determined that for each year of the first five years the 
section is in effect, the public benefit anticipated as a result of enforcing 
the section will enable more instructors to be trained, thus creating additional 
programs throughout the state. The anticipated economic cost to persons who are 
required to comply with the section will be $150 for each instructor attending 
the DWI Repeat Offender administrator/instructor training program. 
 Comments on the proposal may be submitted to Denise F. Mosel, Division 
Assistant, Texas Commission on Alcohol and Drug Abuse, 710 Brazos Street, 
Austin, Texas 78701-2576. 
 The amendments are proposed under the Texas Code of Criminal Procedure, Article 
42.12, sec.13(j), which provides the Texas Commission on Alcohol and Drug Abuse 
with the authority to publish rules and regulations for approved DWI Repeat 
Offender Educational Programs. 
 The code affected by this amendment is the Texas Code of Criminal Procedure, 
Article 42.12, sec.13(j). 
 
 
  sec.154.28. Program Instructors. <ol> Program instructors must: 
 
  (1) (No change.) 
   
  (2) have a minimum of <nl>three years of documented experience providing 
professional supervision, guidance, consultation, referral and follow-up to 
persons with substance abuse problems <ol>[two years of chemical dependency 
counseling experience]; 
   
  (3)-(7)  (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 10, 1994. 
 TRD-9434480 
  David P. Tatum 
 Interim Executive Director 
 Texas Commission on Alcohol and Drug Abuse 
    Earliest possible date of adoption: February 18, 1994 
 For further information, please call: (512) 867-8720 
         
                 Part XIX. Texas Department of Protective and Regulatory 
Services 
  Chapter 700. Child Protective Services 
  
  Subchapter C. Eligibility for Child Protective Services 
 
  40 TAC sec.700.316 
 
  The Texas Department of Protective and Regulatory Services (TDPRS) proposes an 
amendment to sec.700.316, concerning eligibility for foster-care assistance, in 
its Child Protective Services chapter. The purpose of the amendment is to help 
youths in foster care finish high school or learn marketable vocational or 
technical skills before they leave foster care and begin living independently as 
adults. The amendment does so by extending the eligibility period for foster-
care assistance when a youth is attending high school or taking vocational or 
technical training classes after turning 18. 
 Jerry Abel, chief fiscal officer, has determined that for the first five-year 
period the section in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the section. 
 Mr. Abel also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to help older teenagers in foster care make better transitions 
into adulthood by improving their preparation to earn a living. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the proposed section. 
 Questions about the content of the proposal may be directed to Grace Sanders at 
(512) 450-3863 in TDPRS's Protective Services for Families and Children 
department. Written comments on the proposal may be submitted to Nancy Murphy, 
Agency Liaison, Policy and Document Support-354, Texas Department of Protective 
and Regulatory Services W-402, P.O. Box 149030, Austin, Texas 78714-9030, within 
30 days of publication in the Texas Register. 
 The amendment is proposed under the Human Resources Code, Title 2, Chapter 22, 
which authorizes the department to administer public assistance programs. The 
amendment is also proposed under the Texas Family Code, Title 2, Chapter 34, 
which authorizes the department to provide services to alleviate the effects of 
child abuse and neglect. In addition, the amendment is proposed under Public Law 
Number 96-272, Title I, which authorizes the department to administer foster-
care and adoption assistance programs provided for under the Social Security 
Act, Title IV-E. Finally, the amendment is also proposed under Texas Civil 
Statutes, Article 4413(503) historical note (Vernon Supplement 1993) which 
transferred all functions, programs, and activities related to the child 
protective services program from the Texas Department of Human Services to the 
Texas Department of Protective and Regulatory Services. 
 The amendment implements the Social Security Act, Title IV-E. 
 
 
  sec.700.316. Eligibility Requirements for AFDC, MAO, and  23>State-Paid 
Foster-Care<ol> [State-paid Foster Care] Assistance.  The child must meet all of 
the following criteria to be eligible for Aid to Families with Dependent 
Children (AFDC), Medical Assistance Only (MAO), or state-paid <nl>foster-care 
<ol>[foster care] assistance. 
 
  (1) (No change.) 
   
  (2) <nl>Age if not attending school. The child must be less than 18 years old. 
When a youth in foster care turns 18, the youth's eligibility for foster care 
assistance ends on the last day of the month of his 18th birthday, unless the 
youth is attending high school or taking vocational or technical training 
classes as specified in paragraph (3) of this section. <ol>[Age. The child must 
be less than 18 years old. Foster care assistance is continued through the month 
the child becomes 18. An 18-year-old foster child may continue to be eligible if 
the child is a full-time student (as defined by the school) in high school or is 
regularly attending vocational or technical training as an equivalent to high 
school attendance. The child must be expected to graduate from high school (or 
training) before or during the month of the child's 19th birthday. If the child 
graduates before the month of the 19th birthday, foster care assistance 
continues only through the graduation month. Foster care assistance is continued 
through the month the child becomes 19 if the child graduates in that month.] 
   
  <nl>(3) Age if attending school. A youth's eligibility for foster care 
assistance can be extended until the end of the month of his graduation from 
high school or the end of the month of his completion of vocational or technical 
training classes when the conditions specified in subparagraph (A) of this 
paragraph are satisfied or when the conditions specified in subparagraphs (B) or 
(C) of this paragraph are satisfied in addition to the conditions in 
subparagraph (A) of this paragraph. 
 
  <nl>(A) General conditions. The youth must: 
 
  <nl>(i)<nl> already be receiving foster care assistance during the month of 
his 18th birthday; 
   
  <nl>(ii)<nl> be: 
 
  <nl>(I) attending high school as a full-time student (as defined by the 
school); or 
   
  <nl>(II) taking vocational or technical training classes as an alternative to 
attending high school as a full-time student; and 
     
  <nl>(iii)<nl> be scheduled to: 
     
  <nl>(I) graduate from high school or complete the vocational or technical 
training classes specified in clause (ii) of this subparagraph before or during 
the month of his 19th birthday; or 
 
  <nl>(II) graduate from high school before or during the month of his 20th 
birthday as specified in subparagraph (C) of this paragraph. 
     
  <nl>(B) Special condition affecting AFDC foster-care assistance. If a youth 
receives a general equivalency diploma (GED) and enrolls in vocational or 
technical training classes before his 18th birthday, the youth's eligibility for 
AFDC foster-care assistance may be extended until the end of the month in which 
he completes the vocational or technical training, as long as the youth is 
scheduled to complete the training before or during the month of his 19th 
birthday. 
   
  <nl>(C) Special condition affecting state-paid foster-care assistance. A youth 
who is scheduled to graduate from high school after his 19th birthday is 
eligible to receive state-paid foster-care assistance from the beginning of the 
first full month following his 18th birthday until the end of the month of his 
graduation, as long as the youth is scheduled to graduate from high school 
before or during the month of his 20th birthday. 
     
  <nl>(4)<ol>[(3)] Citizenship and Alien Status. The child must be a citizen of 
the United States or an alien: 
 
  (A) lawfully admitted for permanent residence; 
   
  (B) granted temporary residence status under the Immigration Reform and 
Control Act of 1986, Public Law 99-603; or 
   
  (C) permanently residing in the United States under color of law (PRUCOL). A 
deportable alien living in the United States with the continuing knowledge and 
permission of the Immigration and Naturalization Service is PRUCOL. 
     
  <nl>(5)<ol>[(4)] Placement. The child must be receiving care in Texas in a 
licensed, certified, or verified foster home or a licensed, private, nonprofit 
child-caring institution approved for  <nl>TDPRS foster-care <ol>[PRS foster 
care] assistance, except in the following circumstances. 
 
  (A) The child is in permanent foster family care and the foster family must 
move out of state. The foster family must secure foster care licensing in the 
new state of residence within 90 days, or the child's eligibility for foster 
care assistance will be terminated until appropriate licensing is secured. The 
<nl>TDPRS <ol>[PRS] program director may grant one extension of no more than 60 
days, but only if it is clear that the foster family will be licensed in the 
additional time. 
   
  (B) The child must be removed from an out-of-state adoptive or foster care 
placement; and <nl>TDPRS  <ol>[PRS] determines that another out-of-state 
placement will better meet the child's needs than a return to Texas. 
   
  (C) Under the service plan, the child is to be reunited with his biological 
family and must be moved out of state in order to live near the family. 
   
  (D) The child qualifies for Level of Care (LOC) VI, and no nonprofit, 
residential child care facility that can meet the child's needs is available in 
the area in which the child must be placed. When no nonprofit facility is 
available for a LOC VI child, the child may receive care in a licensed, for-
profit facility that provides LOC VI services. The facility must enter into an 
agreement with <nl>TDPRS <ol>[PRS] to provide services to children in the 
department's conservatorship at the department's normal payment rates. A child 
placed in a for-profit facility at LOC VI may continue to receive care in the 
facility if his LOC changes, as long as 
 
  (i) the child's needs are best served by his remaining in the facility; and 
   
  (ii) the facility agrees to continue serving the child at the new LOC. 
       
  <nl>(6)<ol>[(5)] Resources. The child must not have equity in real or personal 
property in excess of $1,000. 
   
  <nl>(7)<ol>[(6)] Income. The child's monthly income must be less than the 
daily rate paid to the  <nl>child-care<ol> [child care] facility for the child's 
maintenance. Countable income includes child support; supplemental security 
income (SSI); retirement, survivors, and disability insurance (RSDI); Veterans 
Administration (VA) benefits; any other dependent or survivor's income; Indian 
heritage; or other income from private sources. The following types of income 
are not counted in determining eligibility: 
 
  (A) Earnings of a child who is: 
 
  (i) A full-time student. 
   
  (ii) A part-time student and not a full-time employee. Full-time employment is 
30 hours or more per week. 
     
  (B) Money given as a gift on an irregular basis by the parent to the child. 
   
  (C) Educational loans or grants, such as scholarships, to the child if 
provided for purposes other than regular maintenance. 
     
  <nl>(8)<ol>[(7)] Lump-sum Income. <nl>Nonrecurring <ol>[Non-recurring] lump-
sum payments received after certification for foster care assistance are 
generally considered as countable income. Exceptions are detailed in sec.sec.3. 
3208-3.3213 of this title (relating to Income) in the AFDC chapter of rules. If 
the lump-sum payment plus other countable income for a month is equal to or 
greater than the cost of <nl>foster-care [foster care] maintenance, the child is 
ineligible for a period of time. The period of ineligibility is determined by 
dividing the amount of the lump-sum payment and other countable income by the 
monthly cost of care. The resulting whole number is the number of months the 
child is ineligible for foster care assistance. Any remaining amount from this 
division is considered as income the first month after the period of 
ineligibility. 
   
  <nl>(9)<ol>[(8)] Social Security number. The child must have, or must have 
applied for, a Social Security number. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on January 11, 1994. 
 TRD-9434533 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Protective and Regulatory Services 
    Earliest possible date of adoption: April 1, 1994 
 For further information, please call: (512) 450-3765