Part 2.
TEXAS EDUCATION AGENCY
Chapter 89.
ADAPTATIONS FOR SPECIAL POPULATIONS
Subchapter AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES
The Texas Education Agency (TEA) proposes amendments to §§89.1011,
89.1050, 89.1052, and 89.1185, and the repeal of §89.1110, concerning
special education services for students with disabilities. The sections clarify
federal regulations and state statutes pertaining to delivering special education
services to students with disabilities. The proposed amendments reflect revised
and repealed rules resulting from revisions to the Texas Education Code (TEC)
and clarification of rulemaking to align with rulings of the Third Court of
Appeals-Austin. The proposed rule actions address the legislative requirements
through the repeal of 19 TAC §89.1110, Memorandum of Understanding on
Individual Transition Planning for Students Receiving Special Education Services,
and amendments to 19 TAC §89.1011, Referral for Full and Individual Initial
Evaluation; 19 TAC §89.1050, The Admission, Review, and Dismissal (ARD)
Committee; and 19 TAC §89.1052, Discretionary Placements in Juvenile
Justice Alternative Education Programs (JJAEP). The court ruling is addressed
in the proposed amendment to 19 TAC §89.1185, Hearing.
During the 78th Texas Legislative Session, 2003, several new sections of
law impacting special education were added and other sections were amended.
Additionally, on July 11, 2003, the Third Court of Appeals-Austin ruled in
a case impacting current rule related to the timeline for appealing the decision
of a due process hearing officer. As a result of the changes to the state
law and rulings by the Court, 19 TAC Chapter 89, Subchapter AA, must be amended
to incorporate these changes to ensure school district compliance with new
procedural requirements.
Specifically, this rule action proposes to amend: (1) 19 TAC §89.1011,
Referral for Full and Individual Initial Evaluation, to reflect changes made
in TEC, §29.004, related to the 60 calendar-day timeline for completion
of a full and individual initial evaluation; (2) 19 TAC §89.1050, The
Admission, Review, and Dismissal (ARD) Committee, to reflect requirements
of the ARD committee related to personal graduation plans and intensive instruction
as referenced in TEC, §28.0212 and §28.0213; (3) 19 TAC §89.1052,
Discretionary Placements in Juvenile Justice Alternative Education Programs
(JJAEP), to reflect an extension of the rule effective date related to these
placements as referenced in TEC, §37.004; and (4) 19 TAC §89.1185,
Hearing, to reflect the findings of the Third Court of Appeals-Austin related
to the timeline for appealing the decision of a due process hearing officer.
This rule action also proposes the repeal of 19 TAC §89.1110, Memorandum
of Understanding on Individual Transition Planning for Students Receiving
Special Education Services, to reflect the changes made in TEC, §29.011.
The most significant issue pertaining to these proposed actions relates
to the repeal of 19 TAC §89.1110 to comply with amendments made to TEC, §29.011.
The amended law in TEC, §29.011, no longer requires a memorandum of understanding
(MOU) on transition planning for students with disabilities. Therefore, the
repeal of the current MOU in 19 TAC §89.1110 is proposed to reflect legislative
intent. Additional language related to the new transition requirements reflected
in TEC, §29.011, will be reflected in a future rule proposal. Additionally,
during the legislative session in 2003, the TEC was amended to revise the
calculation of the timeline for completion of full and individual initial
evaluations. The timeline no longer will begin at referral of the student
for evaluation but, rather, at the point a school district receives written
consent signed by the student's parent or legal guardian. Based on changes
to TEC, §29.004, the amendment of 19 TAC §89.1011 is proposed to
reflect an appropriate change related to the 60 calendar-day timeline for
completion of a full and individual initial evaluation.
The proposed rule actions related to 19 TAC Chapter 89, Subchapter AA,
incorporate procedural requirements contained in the state law and resulting
from court rulings that schools districts must follow. A statewide public
hearing will be scheduled for late August or early September 2003. In addition,
the public will be given the opportunity to submit written/electronic comments.
Paul Cruz, deputy commissioner for dropout prevention and initiatives,
has determined that for the first five- year period the amendments and repeal
are in effect there will be fiscal implications for state or local government
as a result of enforcing or administering the amendments and repeal. The repeal
of the MOU in §89.1110 and elimination of related activities involving
separate individual transition planning meetings and individual transition
plans (ITPs) for students with disabilities who are at least 16 years of age
will result in an anticipated savings to school districts of approximately
$17,567,570 over the next five years. The reduction in costs is estimated
as a reduction in staff time directed toward separate transition planning
activities beyond what already is required by the Individuals with Disabilities
Education Act and related federal regulations.
Dr. Cruz has determined that for each year of the first five years the
amendments and repeal are in effect the public benefit anticipated as a result
of enforcing the amendments and repeal will be to clarify legislative intent
and/or state requirements related to the evaluation of students with disabilities
for special education services, provide guidance relating to the responsibilities
of the ARD committee, and reflect current court rulings related to the implementation
of federal regulations and state law. There will not be an effect on small
businesses. There is no anticipated economic cost to persons who are required
to comply with the amendments and repeal as proposed.
Comments on the proposal may be submitted to Cristina De La Fuente-Valadez,
Accountability Reporting and Research, 1701 North Congress Avenue, Austin,
Texas 78701, (512) 463-9701. Comments may also be submitted electronically
to
rules@tea.state.tx.us
or faxed to (512)
475-3499. All requests for a public hearing on the proposed amendments and
repeal submitted under the Administrative Procedure Act must be received by
the commissioner of education not more than 15 calendar days after notice
of a proposed change in the section has been published in the
Texas Register
.
2.
CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW
19 TAC §§89.1011, 89.1050, 89.1052
The amendments are proposed under the Texas Education Code
(TEC), §29.001, which authorizes the commissioner of education to adopt
rules for the administration and funding of the special education services.
The proposed amendments implement 34 Code of Federal Regulations, §300.347,
and TEC, §§28.0212, 28.0213, 29.004, and 37.004.
§89.1011.Referral for Full and Individual Initial Evaluation.
Referral of students for a full and individual initial evaluation for
possible special education services shall be a part of the district's overall,
general education referral or screening system. Prior to referral, students
experiencing difficulty in the general classroom should be considered for
all support services available to all students, such as tutorial, remedial,
compensatory, and other services. If the student continues to experience difficulty
in the general classroom after the provision of interventions, district personnel
must refer the student for a full and individual initial evaluation. This
referral for a full and individual initial evaluation may be initiated by
school personnel, the student's parents or legal guardian, or another person
involved in the education or care of the student. [
§89.1050.The Admission, Review, and Dismissal (ARD) Committee.
(a)
Each school district shall establish an admission, review,
and dismissal (ARD) committee for each eligible student with a disability
and for each student for whom a full and individual initial evaluation is
conducted pursuant to §89.1011 of this title (relating to Referral for
Full and Individual Initial Evaluation). The ARD committee shall be the individualized
education program (IEP) team defined in federal law and regulations, including,
specifically, 34 Code of Federal Regulations (CFR), §300.344. The school
district shall be responsible for all of the functions for which the IEP team
is responsible under federal law and regulations and for which the ARD committee
is responsible under state law, including, specifically, the following:
(1)
34 CFR, §§300.340-300.349, and Texas Education
Code (TEC), §29.005 (Individualized Education Program);
(2)
34 CFR, §§300.400-300.402 (relating to placement
of eligible students in private schools by a school district);
(3)
34 CFR, §§300.452, 300.455, and 300.456 (relating
to the development and implementation of service plans for eligible students
in private school who have been designated to receive special education and
related services);
(4)
34 CFR, §§300.520, 300.522, and 300.523, and
TEC, §37.004 (Placement of Students with Disabilities);
(5)
34 CFR, §§300.532-300.536 (relating to evaluations,
re-evaluations, and determination of eligibility);
(6)
34 CFR, §§300.550-300.553 (relating to least
restrictive environment);
(7)
TEC, §28.006 (Reading Diagnosis);
(8)
TEC, §28.0211 (Satisfactory Performance on Assessment
Instruments Required; Accelerated Instruction);
(9)
TEC, §28.0212 (Personal
Graduation Plan);
(10)
TEC, §28.0213 (Intensive
Program of Instruction);
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(b)-(h)
(No change.)
§89.1052.Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP).
[
(a)
[
(b)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200304948
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: September 21, 2003
For further information, please call: (512) 463-9701
19 TAC §89.1110
(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 repeal is proposed under the Texas Education
Code (TEC), §29.001 and §29.011, which authorize the commissioner
of education to adopt rules for the administration and funding of the special
education services and procedures for compliance with federal requirements
relating to transition.
The proposed repeal implements TEC, §29.011.
§89.1110.Memorandum of Understanding on Individual Transition Planning for Students Receiving Special Education Services.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200304949
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: September 21, 2003
For further information, please call: (512) 463-9701
19 TAC §89.1185
The amendment is proposed under the Texas Education Code (TEC), §29.001,
which authorizes the commissioner of education to adopt rules for the administration
and funding of the special education services.
The proposed amendment implements 34 Code of Federal Regulations, §300.507.
§89.1185.Hearing.
(a)-(o)
(No change.)
(p)
The decision issued by the hearing officer is final, except
that any party aggrieved by the findings and decision made by the hearing
officer, or the performance thereof by any other party, may bring a civil
action with respect to the issues presented at the due process hearing in
any state court of competent jurisdiction or in a district court of the United
States, as provided in 20 United States Code (USC), §1415(i)(2), and
34 CFR, §300.512. [
(q)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on August 11, 2003.
TRD-200304950
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: September 21, 2003
For further information, please call: (512) 463-9701
Subchapter C. ADOPTIONS BY REFERENCE
19 TAC §109.41
The Texas Education Agency (TEA) proposes an amendment to §109.41,
concerning the "Financial Accountability System Resource Guide." The section
adopts by reference the "Financial Accountability System Resource Guide" as
the TEA's official rule. The "Resource Guide" describes rules for financial
accounting such as financial reporting, budgeting, purchasing, auditing, site-based
decision making, data collection and reporting, management, and state compensatory
education. Public school districts use the "Resource Guide" to meet the accounting,
auditing, budgeting, and reporting requirements as set forth in the Texas
Education Code (TEC) and other state statutes relating to public school finance.
Under §109.41(b), the commissioner of education shall amend the "Resource
Guide," adopting it by reference, as needed. The "Resource Guide" is available
at http://www.tea.state.tx.us/school.finance/ on the TEA website.
The proposed amendment to §109.41 changes the date from "January 2003"
to "November 2003" to reflect the effective date of proposed amendments to
the "Resource Guide." The proposed amendments to the "Resource Guide" incorporate
changes to the state compensatory education module and other changes due to
the 78th Texas Legislature 2003; amendment of the charter school financial
accounting and reporting standards; and other minor edits.
Thomas D. Canby, Jr., managing director for school financial audits, has
determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the amendment.
Mr. Canby has determined that for each year of the first five years the
amendment is in effect the public benefit anticipated as a result of enforcing
the amendment will be improving financial accountability for educational programs
in the Texas school system and keeping financial management practices current
with changes in state law and federal rules and regulations. There will not
be an effect on small businesses. There is no anticipated economic cost to
persons who are required to comply with the amendment as proposed.
Comments on the proposal may be submitted to Cristina De La Fuente-Valadez,
Accountability Reporting and Research, 1701 North Congress Avenue, Austin,
Texas 78701, (512) 463-9701. Comments may also be submitted electronically
to
rules@tea.state.tx.us
or faxed to (512)
475-3499. All requests for a public hearing on the proposed amendment submitted
under the Administrative Procedure Act must be received by the commissioner
of education not more than 15 calendar days after notice of a proposed change
in the section has been published in the
Texas Register
.
The amendment is proposed under the Texas Education Code, §§7.055,
44.001, 44.007, and 44.008, which authorizes the commissioner of education
to prescribe the standards for the required agreed-upon procedures of school
district leaver records and to establish advisory guidelines relating to fiscal
management of a school district and the State Board of Education to establish
a standard school fiscal accounting system in conformity with generally accepted
accounting principles.
The proposed amendment implements the Texas Education Code, §§7.055,
44.001, 44.007, and 44.008.
§109.41.Financial Accountability System Resource Guide.
(a)
The rules for financial accounting are described in the
official Texas Education Agency publication, Financial Accountability System
Resource Guide, as amended
November 2003,
[
(b)
The commissioner of education shall amend the Financial
Accountability System Resource Guide and this section adopting it by reference,
as needed. The commissioner shall inform the State Board of Education of the
intent to amend the Resource Guide and of the effect of proposed amendments
before submitting them to the Office of the Secretary of State as proposed
rule changes.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on August 11, 2003.
TRD-200304951
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Earliest possible date of adoption: September 21, 2003
For further information, please call: (512) 463-9701
Subchapter AA. COMMISSIONER'S RULES
The referral for a
full and individual initial evaluation must be completed in accordance with
Texas Education Code, §29.004, related to the 60 calendar day time line.
]
(9)
] TEC, Chapter 29, Subchapter
I (Programs for Students Who Are Deaf or Hard of Hearing);
(10)
] TEC, §30.002 (Education
of Children with Visual Impairments);
(11)
] TEC, §30.003 (Support
of Students Enrolled in the Texas School for the Blind and Visually Impaired
or Texas School for the Deaf);
(12)
] TEC, §33.081 (Extracurricular
Activities);
(13)
] TEC, Chapter 39, Subchapter
B (Assessment of Academic Skills); and
(14)
] TEC, §42.151 (Special
Education).
(a)
This section will expire on
September 1, 2003.]
(b)
] In a county with a JJAEP, a
local school district shall invite the administrator of the JJAEP or the administrator's
designee to an admission, review, and dismissal (ARD) committee meeting convened
to discuss a student's expulsion under the provisions listed in Texas Education
Code (TEC), §37.004(e), relating to offenses for which a school district
may expel a student. The reasonable notice of the ARD committee meeting must
be provided consistent with 34 CFR, §300.345 and §300.503, and §89.1015
of this title (relating to Time Line for All Notices), and a copy of the student's
current individualized education program (IEP) must be provided to the JJAEP
administrator or designee with the notice. If the JJAEP representative is
unable to attend the ARD committee meeting, the representative must be given
the opportunity to participate in the meeting through alternative means including
conference telephone calls. The JJAEP representative may participate in the
meeting to the extent that the meeting relates to the student's placement
in the JJAEP and implementation of the student's current IEP in the JJAEP.
(c)
] In accordance with TEC, §37.004(f),
when the JJAEP administrator or designee provides written notice of specific
concerns to the school district from which a student was expelled under one
of the provisions listed in TEC, §37.004(e), relating to offenses for
which a school district may expel a student, an ARD committee meeting must
be convened to reconsider placement of the student in the JJAEP. The reasonable
notice of the ARD committee meeting must be provided consistent with 34 CFR, §300.345
and §300.503, and §89.1015 of this title (relating to Time Line
for All Notices). If the JJAEP representative is unable to attend the ARD
committee meeting, the representative must be given the opportunity to participate
in the meeting through alternative means including conference telephone calls.
The JJAEP representative may participate in the meeting to the extent that
the meeting relates to the student's continued placement in the JJAEP.
3.
MEMORANDA OF UNDERSTANDING AFFECTING SPECIAL EDUCATION STUDENTS
7.
RESOLUTION OF DISPUTES BETWEEN PARENTS AND SCHOOL DISTRICTS
Effective with hearing officer decisions issued
on or after August 1, 2002, a civil action brought in a court of competent
jurisdiction under 20 USC, §1415(i)(2), and 34 CFR, §300.512, must
be initiated no more than 90 days after the date the hearing officer issued
his or her written decision in the due process hearing.
]
Chapter 109.
BUDGETING, ACCOUNTING, AND AUDITING
January 2003,
]
which is adopted by this reference as the agency's official rule. A copy is
available for examination during regular office hours, 8:00 a.m. to 5:00 p.m.,
except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701
North Congress Avenue, Austin, Texas 78701.
Chapter 129.
STUDENT ATTENDANCE