TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

CHAPTER 4. RULES APPLYING TO ALL PUBLIC INSTITUTIONS OF HIGHER EDUCATION IN TEXAS

SUBCHAPTER D. DUAL CREDIT PARTNERSHIPS BETWEEN SECONDARY SCHOOLS AND TEXAS PUBLIC COLLEGES

19 TAC §§4.81 - 4.85

The Texas Higher Education Coordinating Board (Coordinating Board) adopts amendments to Chapter 4, Subchapter D, Dual Credit Partnerships between Secondary Schools and Texas Public Colleges, §§4.81 - 4.85, concerning college courses offered for dual credit by public institutions of higher education with changes to proposed text as published in the November 17, 2017, issue of the Texas Register (42 TexReg 6439). The intent of the amendments is to update existing rules to align with current statute and rule references regarding limitations on college courses that can be offered for dual credit by public institutions of higher education. The amended rules will affect students enrolling in dual credit courses and early college high schools during the 2018 fall semester. The rule amendments proposed for this Subchapter were reviewed and approved by the Negotiated Rulemaking Committee on Dual Credit Course Limitations on November 2, 2017.

Comments were received from The University of Texas at Austin.

COMMENT: The University of Texas at Austin suggested that §4.83(7) retain the words "simultaneous academic" before "credit" or replacing with the term "concurrent course credit." The University of Texas at Austin staff believed the term "simultaneous" clarified that, under a dual credit system, college credit earned by the students is applied both to the college and the high school. Replacing the term "simultaneous academic" with the term "concurrent course" would provide similar clarity to help classify how students earn credit through a dual credit system.

STAFF RESPONSE: Staff does not agree with the comment. The insertion of the words "concurrent course" in the definition of dual credit is redundant to the current language stating that a student receives credit for the course(s) from both the college and high school.

Staff does not recommend any changes to the language of the rule.

COMMENT: The University of Texas at Austin suggested that §4.83(8) be revised by replacing the term "circumstance" with the term "system" to add parallel language to the definition of dual credit. The University of Texas at Austin staff also believed the terms concurrent enrollment and concurrent course credit were too similar. They recommended simplifying the definition of dual enrollment by removing the term "concurrent enrollment" altogether. It was also recommended that adding a statement clarifying the differences between how course credit is earned through each distinct system helps differentiate the two systems and provides clarity for both educational institutions serving dual enrollment students.

STAFF RESPONSE: Staff agrees with the comment. The insertion of the suggested language in the definition of dual enrollment adds clarity to §4.83(8) Definitions.

Comments and staff responses were sent to the Negotiated Rule Making Committee. The Committee agreed with the staff assessment and response to the first suggestion for §4.83(7) Definitions. No changes were made to this Section.

One Negotiated Rule Committee member did not agree with the revised wording on §4.83(8) Definitions, based on the comment submitted by the University of Texas at Austin. The member suggested a non-substantive revision to the definition that did not alter the substance of the definition.

Staff agreed with the non-substantive revision. This revision was sent to Negotiated Rule Committee members for consensus. The Committee agreed with the staff assessment and response. Section 4.83(8), Definitions was revised.

The amendments are adopted under the Texas Education Code, Chapter 28, §28.009 (b-1); Chapter 51, §51.968 (d-2); and Chapter 130, §130.008 (a-3), which provides the Coordinating Board with the authority to adopt rules to administer the section.

§4.81.Purpose.

This subchapter provides rules and regulations for public institutions of higher education to engage in dual credit partnerships with secondary schools. (See Chapter 9, Subchapter H of this title (relating to Partnerships Between Secondary Schools and Public Two-Year Associate Degree-Granting Institutions) for high school credit only partnerships, and remedial or developmental instruction for high school graduation partnerships.)

§4.82.Authority.

Texas Education Code, §§28.009(b), 29.182, 29.184, 61.027, 130.001(b)(3) - (4), 130.008, 130.090, and 135.06(d) provide the Board with the authority to regulate dual credit partnerships between public institutions of higher education and secondary schools with regard to lower division courses.

§4.83.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Articulated College Credit--Credit earned through a high school-level course that fulfills specific requirements of an identified college-level course and provides a pathway for high school students to earn credit toward a technical certificate or technical degree at a partnering institution of higher education.

(2) Board or Coordinating Board--The Texas Higher Education Coordinating Board.

(3) Career and Technical Education Course--A college-level course awarding semester credit hours and contained in the Workforce Education Course Manual (WECM) or a specified course contained in the Lower-Division Academic Course Guide manual that may be reported for state funding by institutions of higher education as a dual credit career and technical education course in the Coordinating Board Management (CBM) Reporting and Procedures Manual for Texas Community, Technical, and State Colleges.

(4) College--Public institution of higher education as defined in TEC 61.003(8).

(5) College Board Advanced Placement--College-Level courses and exams available to secondary students under the auspices of an approved College Board program.

(6) Commissioner--The Commissioner of Higher Education.

(7) Dual credit--A system under which an eligible high school student enrolls in college course(s) and receives credit for the course(s) from both the college and the high school. While dual credit courses are often taught on the secondary school campus to high school students only, applicable sections of these rules, §4.84(a) and §4.85(a), (b), (g), (h), (i) of this title (relating to Dual Credit Partnerships), apply irrespective of location or mode of delivery. Dual credit is also referred to as concurrent course credit; the terms are equivalent.

(8) Dual enrollment (previously referred to as dual or concurrent enrollment)--Refers to a system under which a student is enrolled in more than one educational institution (including a high school and a public institution of higher education). When a student in a dual enrollment system enrolls in courses that student earns appropriate course credit from each distinct educational institution that offered the course. Dual enrollment is not equivalent to dual credit.

(9) Early College Education Program--A program as defined in TEC 29.908.

(10) Early College Program--A program developed via an institutional agreement in partnership between a public institution of higher education and high schools or school districts in which a student enrolls in courses that are part of a defined sequence of courses leading to a Board approved certificate, AA, AS, or AAS degree program as defined in Title 19, Part 1, Chapter 9, Rule 9.1 - Definitions of Texas Administrative Code.

(11) Field of Study Curriculum (FOSC)--A set of courses that satisfies the lower-division requirements for a baccalaureate degree in a specific academic area at a general academic teaching institution. A field of study curriculum affects academic degree programs at public junior colleges, public technical institutes, or universities as designated within the particular field of study curriculum.

(12) International Baccalaureate Diploma Program--The curriculum and examinations leading to an International Baccalaureate diploma awarded by the International Baccalaureate Organization.

(13) Public two-year associate degree-granting institution--A community college, a technical college, or a state college.

§4.84.Institutional Agreements.

(a) Need for Institutional Agreements. For any dual credit partnership between a secondary school and a public college, an agreement must be approved by the governing boards or designated authorities (e.g., principal and chief academic officer) of both the public school district or private secondary school and the public college prior to the offering of such courses.

(b) Elements of Institutional Agreements. The dual credit partnership must address the following elements:

(1) Eligible Courses;

(2) Student Eligibility;

(3) Location of Class;

(4) Student Composition of Class;

(5) Faculty Selection, Supervision, and Evaluation;

(6) Course Curriculum, Instruction, and Grading;

(7) Academic Policies and Student Support Services;

(8) Transcripting of Credit;

(9) Funding; and

(10) Defined sequences of courses, where applicable.

§4.85.Dual Credit Requirements.

(a) Eligible Courses.

(1) Courses offered for dual credit by public two-year associate degree granting institutions must be identified as college-level academic courses in the current edition of the Lower Division Academic Course Guide Manual adopted by the Board or as college-level workforce education courses in the current edition of the Workforce Education Course Manual adopted by the Board.

(2) Courses offered for dual credit by public universities must be in the approved undergraduate course inventory of the university.

(3) A college course offered for dual credit must be:

(A) in the core curriculum of the public institution of higher education providing the credit;

(B) a career and technical education course; or

(C) a foreign language course.

(i) This provision does not apply to a college course for dual credit offered as part of an approved early college education program established under TEC Section 29.908 or an early college program as defined in this Subchapter.

(ii) Any college course for dual credit offered as part of an early college program as defined in this subchapter must be a core curriculum course of the public institution of higher education providing the credit, a career and technical education course, a foreign language course, or a course that satisfies specific degree plan requirements leading to the completion of a Board approved certificate, AA, AS, AAS degree program, or FOSC.

(4) Public colleges may not offer remedial and developmental courses for dual credit.

(b) Student Eligibility.

(1) A high school student is eligible to enroll in academic dual credit courses if the student:

(A) demonstrates college readiness by achieving the minimum passing standards under the provisions of the Texas Success Initiative as set forth in §4.57 of this title (relating to College Ready and Adult Basic Education (ABE) Standards) on relevant section(s) of an assessment instrument approved by the Board as set forth in §4.56 of this title (relating to Assessment Instrument); or

(B) demonstrates that he or she is exempt under the provisions of the Texas Success Initiative as set forth §4.54 of this title (relating to Exemptions, Exceptions, and Waivers).

(2) A high school student is also eligible to enroll in academic dual credit courses that require demonstration of TSI college readiness in reading, writing, and/or mathematics under the following conditions:

(A) Courses that require demonstration of TSI college readiness in reading and/or writing:

(i) if the student achieves a Level 2 final recommended score, as defined by the Texas Education Agency (TEA), on the English II State of Texas Assessment of Academic Readiness End of Course (STAAR EOC); or

(ii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the reading test; or

(iii) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in English or an English score of 435 on the ACT-Aspire.

(B) Courses that require demonstration of TSI college readiness in mathematics:

(i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra I STAAR EOC and passing grade in the Algebra II course; or

(ii) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra II STAAR EOC; or

(iii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the mathematics test; or

(iv) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in mathematics or a mathematics score of 431 on the ACT-Aspire.

(3) A high school student is eligible to enroll in workforce education dual credit courses contained in a Level 1 certificate program, or a program leading to a credential of less than a Level 1 certificate, at a public junior college or public technical institute and shall not be required to provide demonstration of college readiness or dual credit enrollment eligibility.

(4) A high school student is eligible to enroll in workforce education dual credit courses contained in a Level 2 certificate or applied associate degree program under the following conditions:

(A) Courses that require demonstration of TSI college readiness in reading and/or writing:

(i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the English II STAAR EOC; or

(ii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the reading test; or

(iii) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in English or an English score of 435 on the ACT-Aspire.

(B) Courses that require demonstration of TSI college readiness in mathematics:

(i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra I STAAR EOC and passing grade in the Algebra II course; or

(ii) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra II STAAR EOC; or

(iii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the mathematics test; or

(iv) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in mathematics or a mathematics score of 431 on the ACT-Aspire.

(C) A student who is exempt from taking STAAR EOC assessments may be otherwise evaluated by an institution to determine eligibility for enrolling in workforce education dual credit courses.

(5) Students who are enrolled in private or non-accredited secondary schools or who are home-schooled must satisfy paragraphs (1) - (4) of this subsection.

(6) To be eligible for enrollment in a dual credit course offered by a public college, students must meet all the college's regular prerequisite requirements designated for that course (e.g., minimum score on a specified placement test, minimum grade in a specified previous course, etc.).

(7) An institution may impose additional requirements for enrollment in courses for dual credit that do not conflict with this section.

(8) An institution is not required, under the provisions of this section, to offer dual credit courses for high school students.

(c) Location of Class. Dual credit courses may be taught on the college campus or on the high school campus. For dual credit courses taught exclusively to high school students on the high school campus and for dual credit courses taught electronically, public colleges shall comply with applicable rules and procedures for offering courses at a distance in Subchapters P and Q of this chapter (relating to Approval of Distance Education Courses and Programs for Public Institutions and Approval of Off-Campus and Self-Supporting Courses and Programs for Public Institutions). In addition, dual credit courses taught electronically shall comply with the Board's adopted Principles of Good Practice for Courses Offered Electronically.

(d) Composition of Class. Dual credit courses may be composed of dual credit students only or of dual and college credit students. Notwithstanding the requirements of subsection (e), exceptions for a mixed class, which would also include high school credit-only students, may be allowed only under one of the following conditions:

(1) If the course involved is required for completion under the State Board of Education High School Program graduation requirements, and the high school involved is otherwise unable to offer such a course.

(2) If the high school credit-only students are College Board Advanced Placement or International Baccalaureate students.

(3) If the course is a career and technical/college workforce education course and the high school credit-only students are eligible to earn articulated college credit.

(e) Faculty Selection, Supervision, and Evaluation.

(1) The college shall select instructors of dual credit courses. These instructors must meet the same standards (including minimal requirements of the Southern Association of Colleges and Schools Commission on Colleges) and approval procedures used by the college to select faculty responsible for teaching the same courses at the main campus of the college.

(2) The college shall supervise and evaluate instructors of dual credit courses using the same or comparable procedures used for faculty at the main campus of the college.

(f) Course Curriculum, Instruction, and Grading. The college shall ensure that a dual credit course and the corresponding course offered at the main campus of the college are equivalent with respect to the curriculum, materials, instruction, and method/rigor of student evaluation. These standards must be upheld regardless of the student composition of the class.

(g) Academic Policies and Student Support Services.

(1) Regular academic policies applicable to courses taught at the college's main campus must also apply to dual credit courses. These policies could include the appeal process for disputed grades, drop policy, the communication of grading policy to students, when the syllabus must be distributed, etc.

(2) Students in dual credit courses must be eligible to utilize the same or comparable support services that are afforded college students on the main campus. The college is responsible for ensuring timely and efficient access to such services (e.g., academic advising and counseling), to learning materials (e.g., library resources), and to other benefits for which the student may be eligible.

(h) Transcripting of Credit. For dual credit courses, high school as well as college credit should be transcripted immediately upon a student's completion of the performance required in the course.

(i) Funding.

(1) The state funding for dual credit courses will be available to both public school districts and colleges based on the current funding rules of the State Board of Education (TEC 42.005 (g)) and the Board (TEC 61.059 (p) and (q)).

(2) The college may only claim funding for students getting college credit in core curriculum, career and technical education, and foreign language dual credit courses.

(3) This provision does not apply to students enrolled in approved early college education programs under TEC 29.908.

(4) All public colleges, universities, and health-related institutions may waive all or part of tuition and fees for a Texas high school student enrolled in a course for which the student may receive dual course credit.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 26, 2018.

TRD-201800338

Bill Franz

General Counsel

Texas Higher Education Coordinating Board

Effective date: February 15, 2018

Proposal publication date: November 17, 2017

For further information, please call: (512) 427-6104


PART 2. TEXAS EDUCATION AGENCY

CHAPTER 61. SCHOOL DISTRICTS

SUBCHAPTER JJ. COMMISSIONER'S RULES CONCERNING AUTOMATIC COLLEGE ADMISSION

19 TAC §61.1201

The Texas Education Agency adopts an amendment to §61.1201, concerning notification of automatic college admission. The amendment is adopted without changes to the proposed text as published in the September 15, 2017 issue of the Texas Register (42 TexReg 4745) and will not be republished. The adopted amendment updates the rule to align with requirements of House Bill (HB) 5, 83rd Texas Legislature, 2013.

REASONED JUSTIFICATION. Texas Education Code (TEC), §28.026, requires each high school in a school district to post appropriate signs in each counselor's office, in each principal's office, and in each administrative building indicating the substance of TEC, §51.803, regarding automatic college admission. Senate Bill 175, 81st Texas Legislature, 2009, amended the TEC, §28.026, requiring the commissioner to adopt procedures to ensure that school districts provide high school students and the students' parents or guardians with written notification of the substance of the TEC, §51.803, relating to automatic college admission. TEC, §28.026, also requires the commissioner to adopt forms for districts to use in providing notice to students and parents.

Section 61.1201 was adopted effective May 9, 2010, to establish in rule procedures for consistent implementation of the statutorily required written notification. It also adopted in rule the appropriate form for use by school districts.

HB 5, 83rd Texas Legislature, 2013, amended TEC, §28.026, to explicitly require open-enrollment charter schools, in addition to school districts, to provide notification relating to automatic college admission to students and the students' parents or guardians. The legislation also required that notification of curriculum requirements for automatic college admission and financial aid be provided. The notification form must be signed by the student's counselor in addition to being signed by the student's parent or guardian.

To align with statute, the adopted amendment to §61.1201(a) adds open-enrollment charter schools to the requirement to provide students and the students' parents or guardians with certain notifications. The adopted amendment also adds language to specify that, in addition to notification of the substance of the TEC, §51.803, relating to automatic college admission, school districts and open-enrollment charter schools must provide notification of the curriculum requirements for financial aid under TEC, Title 3, and the benefits of completing the requirements for automatic admission and financial aid. The amendment adds new Figure: 19 TAC §61.1201(a)(1), the required form to provide notice to all students of the substance of TEC, §51.803, at the time the student first registers for one or more classes required for high school graduation. Additionally, the amendment requires the form to be signed by the student, the student's parent or guardian, and the school counselor.

Also in alignment with statute, the adopted amendment to §61.1201(b) adds open-enrollment charter schools to the requirement to provide written notification of eligibility for automatic college admission to each senior student eligible for automatic admission, each student enrolled in the junior year of high school who has a grade point average in the top ten percent of the student's high school class, and the student's parent or guardian. The amendment also updates Figure: 19 TAC §61.1201(b)(1) to add the Foundation High School Program to the explanation of notification of eligibility form.

Finally, the title of §61.1201 is amended to reflect that the required notifications include both notification of automatic college admission and notification of curriculum requirements for financial aid.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began September 15, 2017, and ended October 16, 2017. No public comments were received.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §28.026, which requires school districts and open-enrollment charter schools to provide each district or school student, at the time the student first registers for one or more classes required for high school graduation, with a written notification, including a detailed explanation in plain language, of the substance of TEC, §51.803, concerning automatic admissions; the curriculum requirements for financial aid authorized under TEC, Title 3; and the benefits of completing the requirements for that automatic admission and financial aid. The commissioner is required to adopt forms to use in providing notice of eligibility for automatic admission to eligible junior and senior high school students.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §28.026.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2018.

TRD-201800305

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: February 14, 2018

Proposal publication date: September 15, 2017

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


CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES

DIVISION 2. CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW

The Texas Education Agency (TEA) adopts amendments to §§89.1011, 89.1040, 89.1049, 89.1055, 89.1070, and 89.1075; the repeal of §89.1047; and new §89.1047, concerning clarification of special education provisions in federal regulations and state law. The amendments to §§89.1011, 89.1040, 89.1049, 89.1055, 89.1070, and 89.1075 and the repeal of §89.1047 are adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5826) and will not be republished. New §89.1047 is adopted with changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5826). The adopted revisions modify procedures related to content and review of students' individualized education programs (IEPs), provisions related to transition services, notice requirements for students with disabilities and their parents, and procedures for surrogate and foster parents as well as make technical edits.

REASONED JUSTIFICATION. Amendments to the Individuals with Disabilities Education Act (IDEA) and to the Every Student Succeeds Act (ESSA) resulted in the removal of references to scientific, researched-based intervention and replaced those references with evidence-based intervention. The adopted amendments to §89.1011, Full Individual and Initial Evaluation, and §89.1040, Eligibility Criteria, make technical changes to align these two sections with the changes in IDEA and ESSA.

HB 1556, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §29.015 and §29.0151, to change state requirements related to foster parents of students with disabilities and the appointing of surrogate parents to students with disabilities who are in the foster care system. The repeal of §89.1047, Procedures for Surrogate and Foster Parents, and new §89.1047, Procedures for Special Education Decision-Making for Students in Foster Care, address these new requirements. In response to public comments, TEA made two changes to §89.1047 at adoption. The first change, in new subsection (c)(1)(I), requires surrogate parents to receive training on their duties and responsibilities as required under TEC, §29.0151(d). The second change, in subsection (d), iterates those individuals who may not be appointed as surrogate parents by school districts.

SB 748 and HB 1886, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §29.017, to change state requirements related to notice regarding transfer of rights to adult students with disabilities and content of the student's IEP. The adopted amendments to §89.1049, Parental Rights Regarding Adult Students, and §89.1055, Content of the Individualized Education Program, address these new requirements. In addition, the adopted amendment to §89.1055 addresses updated state requirements for transition services resulting from changes to the TEC, §29.011, by SB 748 and HB 1886.

SB 463, 85th Texas Legislature, Regular Session, 2017, amended the TEC, §28.0158 and §39.025, to extend the time frame under which a student who has failed to achieve end-of-course assessment graduation requirements for no more than two courses may graduate high school. The adopted amendment to §89.1070, Graduation Requirements, addresses this change in time frame.

SB 1259, 84th Texas Legislature, Regular Session, 2015, amended the TEC, §29.001, to allow teachers who instruct a student with a disability in a regular classroom setting to provide input into the development of the student's IEP. To ensure consistency between statute and administrative rule, the adopted amendment to §89.1075, General Program Requirements and Local District Procedures, incorporates this requirement into rule.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began on October 20, 2017, ended on November 20, 2017, and included public hearings that were held on October 30 and 31, 2017. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses.

Comment: Disability Rights Texas (DRTx) recommended that proposed 19 TAC §89.1047(c)(1)(F), which requires that foster and surrogate parents receive training on implementation of a student's individualized education program (IEP), be amended to also mandate training related to relevant trauma-informed practices, positive behavior interventions and supports (PBIS), and other evidence-based strategies that improve academic outcomes for students and that reduce the need for use of disciplinary practices.

Agency Response: The agency disagrees. The intent of the relevant portion of the training is to inform foster and surrogate parents of the requirements associated with IEP implementation, not content. To the commenter's point about the need for other areas of training, the agency notes that the current training requirements mandate that foster and surrogate parents be informed of where to obtain additional assistance in understanding state and federal laws, rules, and regulations relating to students with disabilities. Likewise, 19 TAC §89.1047(c)(4) provides that school districts may provide optional ongoing or supplemental training. The agency, therefore, does not believe that requiring training on possible IEP content in the rule, as suggested, is necessary.

Comment: DRTx recommended that proposed 19 TAC §89.1047(c)(1)(G), which requires that foster and surrogate parents receive training on the procedural rights and safeguards under the Individuals with Disabilities Education Act (IDEA), be amended to also require training on Texas Education Code (TEC), Chapter 29, related to special education, and Chapter 37, related to discipline, law, and order.

Agency Response: The agency disagrees. The current training requirements include information related to discipline; evaluations; eligibility; the admission, review and dismissal process; and the development of the IEP, among other topics. These general topics are broad enough to give foster and surrogate parents the information necessary to meet their students' needs. To the commenter's point about the need for other areas of training, the agency notes that the current training requirements mandate that foster and surrogate parents be informed of where to obtain additional assistance in understanding state and federal laws, rules, and regulations relating to students with disabilities. Likewise, 19 TAC §89.1047(c)(4) provides that school districts may provide optional ongoing or supplemental training. The agency, therefore, does not believe that additional training, as suggested, is necessary.

Comment: DRTx recommended the inclusion of proposed 19 TAC §89.1047(c)(1)(I), which would incorporate the duties of a surrogate parent listed in TEC, §29.0151(d), as part of the required training.

Agency Response. The agency agrees and has made the recommended change at adoption to ensure that the training includes the required duties of a surrogate parent.

Comment: The Texas Council of Administrators of Special Education (TCASE) recommended that proposed 19 TAC §89.1047(d) iterate the limitations of who may serve as a surrogate parent. TCASE also commented that rule should typically not repeat statute.

Agency Response: The agency agrees with the recommendation to include as part of the rule the limitations on whom a school district may appoint as a child's surrogate parent and has made the recommended change at adoption. As to repeating statute in an administrative rule, the agency believes that, in this instance, having requirements in one place is helpful for stakeholders.

Comment: TCASE recommended that proposed 19 TAC §89.1070 include a reference to TEC, §28.02541, relating to the awarding of diplomas to certain students who entered grade nine prior to the 2011-2012 school year.

Agency Response: The agency disagrees with the recommendation to make the suggested revision to 19 TAC §89.1070 at this time. TEC, §28.02541, requires the agency to conduct rulemaking to develop procedures related to the new graduation pathway. Once those rules are adopted, the agency will review 19 TAC §89.1070 to determine what changes, if any, are needed.

Comment: The Texas Classroom Teachers Association (TCTA) expressed support for the proposed revision to 19 TAC §89.1075(d)(2), related to requiring school districts to have policies in place that allow teachers who instruct a student with a disability in a regular classroom setting to provide input into the development of the student's IEP.

Agency Response: The agency agrees.

19 TAC §§89.1011, 89.1040, 89.1047, 89.1049, 89.1055, 89.1070, 89.1075

STATUTORY AUTHORITY. The amendments and new section are adopted under the Texas Education Code (TEC), §29.001, which requires the Texas Education Agency to develop and modify, as necessary, a statewide plan that includes rules for the administration and funding of the delivery of services to children with disabilities in the state of Texas so that a free appropriate public education is available to all of those children between the ages of 3 and 21; TEC, §29.011, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017, which amends the transition requirements for students that must be in place for a student not later than when the student reaches 14 years of age; TEC, §29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017, which allows foster parents to serve as the parent of a student with a disability under certain circumstances and specifies the timelines for completing the required training program; TEC, §29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017, which establishes the requirements for surrogate parents of students with disabilities who are in the foster care system and specifies the timelines for completing the required training program; TEC, §29.017, as amended by SB 748 and HB 1886, 85th Texas Legislature, Regular Session, 2017, which specifies the content of the notice that must be provided to students with disabilities and their parents not later than one year before a student's 18th birthday; requires students' individualized education programs (IEPs) to include a statement that the notice has been provided; and specifies the content of the notice that must be provided to students with disabilities and their parents when a student with a disability turns 18; and TEC, §28.0258 and §39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017, which allow a student who has failed to achieve the end-of-course assessment graduation requirements for no more than two courses to receive a Texas high school diploma under the TEC, §28.0258, with an expiration date of September 1, 2019.

CROSS REFERENCE TO STATUTE. The amendments and new section implement the Texas Education Code, §§29.001; 29.011 and 29.017, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017; 28.0258 and 39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017; 29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017; and 29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017.

§89.1047.Procedures for Special Education Decision-Making for Students in Foster Care.

(a) A foster parent may act as a parent of a child with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.30, relating to the definition of parent, if requirements of Texas Education Code (TEC), §29.015(a), are met, including the completion of the training program described in subsection (c)(1) of this section.

(1) For a foster parent to serve as a student's parent, a school district must ensure that the foster parent has received training described in subsection (c)(1) of this section. The foster parent must complete the training program before the student's next scheduled admission, review, and dismissal (ARD) committee meeting, but not later than the 90th day after the foster parent begins acting as the parent for the purpose of making special education decisions.

(2) The training program can be conducted or provided by the Texas Department of Family and Protective Services (TDFPS), a school district, an education service center, or any entity that receives federal funds to provide Individuals with Disabilities Education Act (IDEA) training to parents. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the parent or the surrogate parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(b) If a school district denies a foster parent the right to serve as a parent, the school district must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made. The written notice must:

(1) specifically explain why the foster parent is being denied the right to serve as the student's parent; and

(2) inform the foster parent of his or her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.151-300.153, relating to special education complaint procedures.

(c) Except as provided by Texas Family Code, §263.0025, which authorizes a court to appoint a surrogate parent, if a district cannot locate or identify a parent, if the foster parent is unwilling or unable to serve as a parent, or if the student does not reside in a foster home setting, the school district must assign a surrogate parent to make special education decisions on behalf of the student. An individual assigned by a school district to act as a surrogate parent for a student with a disability, in accordance with 34 CFR, §300.519, and TEC, §29.0151, relating to surrogate parents, must comply with the requirements specified in TEC, §29.001(10).

(1) Pursuant to TEC, §29.001(10)(A), a foster parent serving as a parent or an individual assigned by a school district to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

(A) the identification of a student with a disability;

(B) the collection of evaluation and re-evaluation data relating to a student with a disability;

(C) the ARD committee process;

(D) the development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 14 years of age;

(E) the determination of least restrictive environment;

(F) the implementation of an IEP;

(G) the procedural rights and safeguards available under 34 CFR, §§300.148, 300.151-300.153, 300.229, 300.300, 300.500-300.520, 300.530-300.537, and 300.610-300.627, relating to the issues described in 34 CFR, §300.504(c);

(H) where to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities; and

(I) the duties and responsibilities of surrogate parents as required under TEC, §29.0151(d).

(2) The training program described in subsection (c)(1) of this section must be provided in the native language or other mode of communication used by the individual being trained.

(3) To serve as a student's surrogate parent, a school district must ensure that the surrogate parent has received training described in subsection (c)(1) of this section. The individual assigned by a school district to act as a surrogate parent must complete the training program before the student's next scheduled ARD committee meeting but not later than the 90th day after the date of initial assignment as a surrogate parent.

(4) The training program can be conducted or provided by the TDFPS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the surrogate parent or the parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(d) A surrogate parent appointed by a school district may not be an employee of the state, the school district, or any other agency involved in the education or care of the child and may not have any interest that conflicts with the interests of the child. Each school district or shared services arrangement must develop and implement procedures for conducting an analysis of whether a potential surrogate parent has an interest that conflicts with the interests of his or her child. Issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to TDFPS.

(e) If a court appoints a surrogate parent for a child with a disability under Texas Family Code, §263.0025, and the school district determines that the surrogate parent is failing to perform or is not properly performing the duties listed under TEC, §29.0151(d), the district must consult with TDFPS and appoint another person to serve as the surrogate parent for the child.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 26, 2018.

TRD-201800360

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: February 15, 2018

Proposal publication date: October 20, 2017

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


19 TAC §89.1047

STATUTORY AUTHORITY. The repeal is adopted under the Texas Education Code (TEC), §29.001, which requires the Texas Education Agency to develop and modify, as necessary, a statewide plan that includes rules for the administration and funding of the delivery of services to children with disabilities in the state of Texas so that a free appropriate public education is available to all of those children between the ages of 3 and 21; TEC, §29.011, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017, which amends the transition requirements for students that must be in place for a student not later than when the student reaches 14 years of age; TEC, §29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017, which allows foster parents to serve as the parent of a student with a disability under certain circumstances and specifies the timelines for completing the required training program; TEC, §29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017, which establishes the requirements for surrogate parents of students with disabilities who are in the foster care system and specifies the timelines for completing the required training program; TEC, §29.017, as amended by SB 748 and HB 1886, 85th Texas Legislature, Regular Session, 2017, which specifies the content of the notice that must be provided to students with disabilities and their parents not later than one year before a student's 18th birthday; requires students' individualized education programs (IEPs) to include a statement that the notice has been provided; and specifies the content of the notice that must be provided to students with disabilities and their parents when a student with a disability turns 18; and TEC, §28.0258 and §39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017, which allow a student who has failed to achieve the end-of-course assessment graduation requirements for no more than two courses to receive a Texas high school diploma under the TEC, §28.0258, with an expiration date of September 1, 2019.

CROSS REFERENCE TO STATUTE. The repeal implements the Texas Education Code, §§29.001; 29.011 and 29.017, as amended by Senate Bill (SB) 748 and House Bill (HB) 1886, 85th Texas Legislature, Regular Session, 2017; 28.0258 and 39.025, as amended by SB 463, 85th Texas Legislature, Regular Session, 2017; 29.015, as amended by HB 1556, 85th Texas Legislature, Regular Session, 2017; and 29.0151, as added by HB 1556, 85th Texas Legislature, Regular Session, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 26, 2018.

TRD-201800358

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: February 15, 2018

Proposal publication date: October 20, 2017

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


DIVISION 7. DISPUTE RESOLUTION

19 TAC §§89.1151, 89.1170, 89.1175

The Texas Education Agency (TEA) adopts amendments to §§89.1151, 89.1170, and 89.1175, concerning special education dispute resolution. The amendment to §89.1151 is adopted with changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5831). The amendments to §89.1170 and §89.1175 are adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5831) and will not be republished.

The adopted amendments update provisions related to the assignment of hearing officers for due process hearings and implement legislation from the 85th Texas Legislature, Regular Session, 2017, by adding language regarding the tolling of the statute of limitations in special education due process hearings for certain individuals and expanding the requirements for representing a party in a due process hearing.

REASONED JUSTIFICATION. The Individuals with Disabilities Education Act (IDEA) and its implementing regulations provide that parents and public agencies may request due process hearings when disputes arise regarding the identification, evaluation, or educational placement of a child with a disability or the provision of a FAPE to the child. IDEA requires TEA, as the state educational agency, to conduct due process hearings and have procedural safeguards in effect to ensure that each public agency in the state meets the IDEA requirements.

The rules in Chapter 89, Subchapter AA, Division 7, implement the requirements of IDEA and state statute by addressing provisions for dispute resolution. Legislation from the 85th Texas Legislature, Regular Session, 2017, made changes to the requirements for due process hearings that necessitate updates to rules in Chapter 89, Subchapter AA, Division 7.

Chapter 89, Subchapter AA, Division 7, is amended as follows.

Section 89.1151, Special Education Due Process Hearings, is amended in response to House Bill (HB) 3632, 85th Texas Legislature, Regular Session, 2017, which enacted Texas Education Code (TEC), §29.0163. The amendment specifies that the statute of limitations for requesting a special education due process hearing may be tolled for certain active-duty military personnel. Based on public comment, subsection (c) was modified at adoption to clarify an exception to the one-year statute of limitations.

Section 89.1175, Representation in Special Education Due Process Hearings, is amended in response to SB 2141, 85th Texas Legislature, Regular Session, 2017, which amended TEC, §29.0162. The rule amendment adds new requirements for a non-attorney representative to represent a party in a special education due process hearing. Specifically, a non-attorney representative that would receive monetary compensation for his or her representation is required to agree to abide by a voluntary code of ethics and enter into a representation agreement with the party being represented. The agreement must be in writing, include a process for resolving any disputes that arise between the representative and the party being represented, and be kept confidential. Figure: 19 TAC §89.1175(c) is updated to include the new requirements for non-attorney representatives.

In addition, §89.1170, Impartial Hearing Officer, is amended under the authority of 34 CFR, §300.511, which specifies that state policy determines the way hearings are assigned to hearing officers. Subsection (a) is amended to allow, but not require, the assignment of a hearing involving the same student to the same hearing officer who presided over the previous hearing. This change ensures timely assignment of cases. Subsection (g) is amended to require a hearing officer to review a request for recusal within three business days of receipt. This change reduces the risk of delay in due process proceedings.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 20, 2017, and ended November 20, 2017, and included public hearings that were held on October 30 and 31, 2017. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses.

Comment: Disability Rights Texas (DRTx) commented that the proposed amendments to 19 TAC §89.1151, adding subsection (e) regarding the tolling of the statute of limitations for filing a due process hearing by certain active-duty servicemembers, reflects newly enacted TEC, §29.0163. DRTx also recommended that the rule be further amended by adding a caveat to subsection (c) to clarify that the one-year time limit for requesting a special education due process hearing is subject to exceptions.

Agency Response: The agency agrees that the proposed amendments reflect state law. The agency also agrees with the recommendation to further amend the rule in subsection (c) and has added language at adoption to clarify an exception to the one-year statute of limitations.

Comment: DRTx commented that proposed amendment to 19 TAC §89.1170, regarding hearing officer assignments in due process hearings, will improve the special education due process hearing program.

Agency Response: The agency agrees.

Comment: DRTx commented that proposed amendment to 19 TAC §89.1175, regarding representation in special education due process hearings, align with recent amendments to TEC, §29.0162.

Agency Response: The agency agrees.

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §29.001, which requires the Texas Education Agency (TEA) to develop and modify as necessary a statewide plan that includes rules for the administration and funding of the delivery of services to children with disabilities in the state of Texas so that a free appropriate public education is available to all of those children between the ages of 3 and 21; TEC, §29.0162, as amended by Senate Bill 2141, 85th Texas Legislature, Regular Session, 2017, which requires the commissioner to adopt rules related to the qualification of and requirements for non-attorney representatives at due process hearings; TEC, §29.0163, as added by House Bill 3632, 85th Texas Legislature, Regular Session, 2017, which requires the commissioner to adopt rules regarding the tolling of the statute of limitations for filing a due process hearing by certain active-duty servicemembers; 34 CFR, §300.100, which requires a state to submit a plan to the Secretary of Education that provides assurances that the state has policies and procedures in effect to ensure that it meets the conditions in 34 CFR, §§300.101-300.176; 34 CFR, §300.121, which requires that a state have procedural safeguards in effect to ensure that each public agency in the state meets the dispute resolution requirements in 34 CFR, §§300.500-300.536, and also requires that children with disabilities and their parents be afforded those procedural safeguards; 34 CFR, §300.511, which requires the state education agency to conduct special education due process hearings as determined under state statute, regulation, or policy; and 34 CFR, §300.512, which allows for state law determination of whether parties may be represented at due process hearings by non-attorney representatives.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code, §§29.001; 29.0162, as amended by Senate Bill 2141, 85th Texas Legislature, Regular Session, 2017; and 29.0163, as added by House Bill 3632, 85th Texas Legislature, Regular Session, 2017; and 34 Code of Federal Regulations, §§300.100, 300.121, 300.511, and 300.512.

§89.1151.Special Education Due Process Hearings.

(a) A parent or public education agency may initiate a due process hearing as provided in 34 Code of Federal Regulations (CFR), §300.507 and §300.508.

(b) The Texas Education Agency will implement a one-tier system of hearings. The proceedings in hearings will be governed by the provisions of 34 CFR, §§300.507-300.515 and 300.532, if applicable, and this division.

(c) A parent or public education agency must request a hearing within one year of the date the parent or public education agency knew or should have known about the alleged action that serves as the basis for the request, unless tolled pursuant to 50 USC, §3936, as set forth in subsection (e) of this section.

(d) The timeline described in subsection (c) of this section does not apply to a parent if the parent was prevented from filing a request for a due process hearing due to:

(1) specific misrepresentations by the public education agency that it had resolved the problem forming the basis of the request for a hearing; or

(2) the public education agency's withholding of information from the parent that was required by 34 CFR, §300.1, et seq. to be provided to the parent.

(e) TEA will include in the Notice of Procedural Safeguards a statement that the statute of limitations for the parent of a student to request an impartial due process hearing under 20 USC, §1415(b), may be tolled if:

(1) the parent is an active-duty member of the armed forces, the Commissioned Corps of the National Oceanic and Atmospheric Administration, or the Commissioned Corps of the United States Public Health Service; and

(2) 50 USC, §3936, applies to the parent.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 26, 2018.

TRD-201800362

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: February 15, 2018

Proposal publication date: October 20, 2017

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