TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

SUBCHAPTER BB. COMMISSIONER'S RULES CONCERNING STATE PLAN FOR EDUCATING ENGLISH LANGUAGE LEARNERS

The Texas Education Agency (TEA) adopts amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1225, 89.1227, 89.1228, 89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, and 89.1265; new 89.1226 and 89.1229; and the repeal of 89.1267 and 89.1269, concerning the state plan for educating English learners. The amendments to §§89.1201, 89.1203, 89.1207, 89.1210, 89.1220, 89.1228, 89.1235, 89.1245, and 89.1265 and new 89.1229 are adopted with changes to the proposed text as published in the April 20, 2018, issue of the Texas Register (43 TexReg 2338). The amendments to §§89.1205, 89.1215, 89.1225, 89.1227, 89.1230, 89.1233, 89.1240, and 89.1250; new 89.1226; and the repeal of 89.1267 and 89.1269 are adopted without changes to the proposed text as published in the April 20, 2018, issue of the Texas Register (43 TexReg 2338) and will not be republished. The adopted revisions amend and clarify provisions relating to identifying, placing, serving, and reclassifying English learners to align the rules with current agency practice and make modifications to align with the adopted Every Student Succeeds Act (ESSA) State Plan, Title III, Part A.

REASONED JUSTIFICATION. In accordance with the Texas Education Code (TEC), Chapter 29, Subchapter B, Bilingual Education and Special Language Programs, the commissioner exercised rulemaking authority to establish rules to guide the implementation of bilingual education and special language programs. The commissioner's rules in 19 TAC Chapter 89, Subchapter BB, establish the policy that every student in the state who has a primary language other than English and who is identified as an English learner shall be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program. These rules outline the requirements of the bilingual education and ESL programs, including program content and design, home language survey, the language proficiency assessment committee (LPAC), testing and classification, facilities, parental authority and responsibility, staffing and staff development, required summer school programs, and evaluation.

During the recent statutorily required review of rules in 19 TAC Chapter 89, staff identified the need to update rules in Subchapter BB to align with current agency practice. In addition, the issuance of the adopted ESSA State Plan, Title III, Part A, necessitated conforming changes to §89.1225 and the addition of new §89.1226.

The adopted revisions to 19 TAC Chapter 89, Subchapter BB, update the term "English language learner" to "English learner" and the term "home language" to "primary language" throughout the rules. In addition, the following changes were made.

Section 89.1201, Policy, was amended to update terminology and align language with the required curriculum standards for bilingual education and ESL programs. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified.

Section 89.1203, Definitions, was amended to define terms used in Chapter 89, Subchapter BB, and align them with statute. Definitions were added for bilingual education allotment, certified English as a second language teacher, dual-language instruction, English as a second language program, English language proficiency standards, exit, and reclassification. In response to public comment, paragraph (7) was modified at adoption to clarify use of the term "limited English proficient (LEP) student."

Section 89.1205, Required Bilingual Education and English as a Second Language Programs, was amended to update terminology and clarify that school districts seeking to implement bilingual education program models that are not required under statute have the authority to do so.

Section 89.1207, Exceptions and Waivers, was amended to update terminology and codify filing and reporting procedures to align with current agency practices. The elements of a comprehensive professional development plan were added to provide guidance that would ensure consistent and comprehensive training statewide. In addition, a requirement was added that schools maintain records to support the submission of an exception or waiver. This ensures schools have the appropriate documentation to present information to the school board as required by §89.1265. The section title was also amended to add clarity. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified.

Section 89.1210, Program Content and Design, was amended to update terminology and add clarity to the descriptions of the various bilingual education and ESL program models. In response to public comment, the section was modified at adoption as follows. The word "appropriately" was added throughout to clarify that teachers must be appropriately certified. Language was also added in subsection (c)(3) and (4) to specify that instruction provided in a language other than English in the dual language immersion/one-way and dual language immersion/two-way program models is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in the program models may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. In addition, subsection (d)(1) was amended to clarify specific teacher certification requirements for educators serving in the ESL/content-based program model.

Section 89.1215, Home Language Survey, was amended to update terminology and provide guidance on responsibilities regarding the survey. A requirement was added to provide the survey in Vietnamese to reflect that it is the state's second most represented primary language. In addition, language was amended to clarify that the home language survey should be given only to students enrolling in a Texas public school for the first time and to require the receiving district to make multiple attempts to obtain the survey from the sending district for a student who has been enrolled previously in a Texas public school. These changes ensure continuity of program services for students and avoid services potentially being interrupted or altered.

Section 89.1220, Language Proficiency Assessment Committee, was amended to update terminology and clarify the member composition of the LPAC as well as student monitoring requirements to align with requirements in statute. Additional changes clarify parent notification and parent approval procedures and adjust timeline language to align with ESSA and state statutory requirements. In response to public comment, the section was modified at adoption to add the word "appropriately" throughout to clarify that teachers must be appropriately certified. Also in response to public comment, subsection (h) was amended to clarify that the 10-day notification requirement is 10 calendar days.

Section 89.1225, Testing and Classification of Students, was amended to update terminology and align with new ESSA requirements for the 2018-2019 school year, including a student assessment and identification timeline of four weeks, use of a standardized rubric for providing subjective teacher evaluation for student exit purposes, and additional clarification of testing requirements for program entry and exit. Additionally, clarification was provided with regard to the role of the LPAC and the admission, review, and dismissal (ARD) committee and procedures to be followed in the decision-making process for English learners with identified special needs. Language was amended to align with new annual language proficiency testing procedures made allowable through ESSA for English learners with significant cognitive disabilities. This section will be superseded by §89.1226 beginning with the 2019-2020 school year.

Adopted new §89.1226, Testing and Classification of Students, Beginning with School Year 2019-2020, was added to align with new ESSA requirements to be implemented beginning with the 2019-2020 school year. New standardized procedures were introduced, including the state's use of a single English language proficiency test for student identification and entrance and a single English language proficiency test for student exit. Additionally, updated language from §89.1225 was included in this section where appropriate.

Section 89.1227, Minimum Requirements for Dual Language Immersion Program Model, was amended to include language regarding provision of equitable resources to ensure that program model participants are consistently given equitable access to the state curriculum.

Section 89.1228, Dual Language Immersion Program Model Implementation, was amended to update terminology and clarify parent permission requirements. The section title was amended to clarify the specific program model addressed in this section. In response to public comment, subsection (a) was modified at adoption to add reference to §89.1233(a).

Adopted new §89.1229, General Standards for Recognition of Dual Language Immersion Program Models, was added. The new section contains language from repealed §89.1265, General Standards for Recognition of Dual Language Immersion Program Models, and was moved to more logically organize the rules. Differences from the repealed rule include clearly delineated criteria for recognizing dual language immersion program implementation and new language about recognition of student performance as required in TEC, §28.0051. In response to public comment, subsection (b) was modified at adoption to specify that a student participating in any state-approved bilingual or ESL program model may earn a performance acknowledgement in accordance with 19 TAC §74.14.

Section 89.1230, Eligible Students with Disabilities, was amended to update terminology and clarify the role and responsibilities of the LPAC in decision-making for English learners with disabilities.

Section 89.1233, Participation of English Proficient Students, was amended to update terminology and clarify participation enrollment limitations in accordance with statute.

Section 89.1235, Facilities, was amended to update terminology and provide flexibility for how school districts continue services for students who have attended a newcomer center for the allowed two years. Information regarding percentage of enrolled English learners per facility was amended and moved to §89.1233 to align with statute. In response to public comment, the section was modified at adoption to clarify that recent immigrant English learners shall not remain enrolled in a newcomer center for longer than two years.

Section 89.1240, Parental Authority and Responsibility, was amended to update terminology and clarify requirements to be included in the bilingual education allotment.

Section 89.1245, Staffing and Staff Development, was amended to update terminology. To streamline and eliminate redundancy, language describing requirements for school districts filing for a bilingual exception or ESL waiver was deleted and language describing materials provision was combined. In response to public comment, subsection (a) was modified at adoption to address teaching permits for school districts that are unable to secure a sufficient number of appropriately certified bilingual education and/or ESL teachers to provide the required programs.

Section 89.1250, Required Summer School Programs, was amended to update terminology and clarify allowable funding sources. The state's bilingual education allotment provides funds for this state-mandated program.

Section 89.1265, Evaluation, was amended to update terminology and clarify annual evaluation requirements aligned with statute and incorporate requirements currently described in §89.1267. Additional evaluation reporting requirements were provided for school districts filing for a bilingual exception and/or an ESL waiver to align with adopted amendments to §89.1207. In response to public comment, subsection (b)(4) was modified at adoption to clarify the type of professional development that must be provided to teachers and aides and included in the annual school district reports of educational performance.

Section 89.1267, Standards for Evaluation of Dual Language Immersion Program Models, was repealed to eliminate redundancy, as these requirements are already fulfilled in §89.1265.

Section 89.1269, General Standards for Recognition of Dual Language Immersion Program Models, was repealed and adopted as new §89.1229 to more logically organize the rules.

In addition, the subchapter title was changed to "Commissioner's Rules Concerning State Plan for Educating English Learners."

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began April 20, 2018, and ended May 21, 2018, and included a public hearing on May 2, 2018. Following is a summary of the public comments received and corresponding agency responses.

Comment. Three administrators stated that it is unclear in proposed §89.1210(c)(3) and (4) that a teacher certified in ESL serving in a dual language program model can teach subjects that are in English.

Agency Response. The agency agrees that additional clarification is necessary. In response to this and other comments, §89.1210(c)(3) and (4) was modified at adoption to read, "Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061."

Comment. One administrator stated that it is unclear in proposed §89.1210(c)(3) and (4) whether the teacher of record is the bilingual-certified teacher or the ESL-certified teacher in instances where the two are teaching as a pair in a dual language program model.

Agency Response. The agency provides the following clarification. Assignment of a teacher of record in a dual language program model that uses paired teachers to deliver the components of the program in English and another language is a local district decision.

Comment. One administrator inquired whether the language in §89.1210(c)(3) and (4) that lists the anticipated number of years by which program participants will likely meet reclassification criteria is meant to be interpreted that students who meet reclassification criteria prior to the anticipated number of years may not be reclassified.

Agency Response. The agency provides the following clarification. English learners will be reclassified as English proficient following the standardized procedures in accordance with §89.1225(i), (l), and (m) and §89.1226(i), (l), and (m), regardless of the English learner program through which they are served. The anticipated number of years by which program participants will likely meet reclassification criteria is provided in the program model descriptions as a general guide but shall not supersede standardized statewide exit procedures required under TEC, §29.056(g).

Comment. One administrator asked whether the requirement in §89.1215(b) that the home language survey be administered in English, Spanish, and Vietnamese means that all three languages need to be on one form or whether a district can pair English with each of the two languages on separate forms. The administrator also inquired whether the home language survey in Vietnamese may be provided to families on paper when a district is generally using an electronic enrollment system.

Agency Response. The agency provides the following clarification. The specific manner by which the home language survey is administered (electronic or paper-based, language combinations) is a local district decision. The agency provides suggestions on best practices in administering the home language survey in guidance provided through annual LPAC Framework training and posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator asked whether the language in §89.1220(b) and (c) identifying the three required members of the LPAC means that a bilingual-certified teacher meets the requirement for instances in which the LPAC is meeting to make decisions around an English learner served through a bilingual education program and that an ESL-certified teacher meets the requirements for instances in which the LPAC is meeting to make decisions around an English learner served through an ESL program.

Agency Response. The agency provides the following clarification. The administrator's interpretation of the intended meaning of this rule is accurate.

Comment. Two administrators requested that special entry criteria be created for English learners with disabilities and recommended changes be made to §89.1225(h) to allow LPAC in conjunction with ARD committees the discretion to identify a student as "Not English Learner" or "Undetermined" if the student's language proficiency is not the critical factor for that student and/or a bilingual or ESL program placement would not be beneficial to that student. One of the commenters expressed concern that under current proposed rule, students with severe disabilities are identified as English learners but have no subsequent opportunity to exit English learner status.

Agency Response. The agency disagrees and has maintained language as proposed. Federal requirements require all students to be treated in the same manner in regard to English learner status. However, if federal law were amended to permit such a change, the agency would consider the commenters' suggestion in future rulemaking.

Comment. One administrator asked whether a student indicating American sign language as a response on the home language survey needs to be identified as an English learner.

Agency Response. The agency provides the following clarification. American Sign Language is considered a language other than English, and the standardized process for English learner identification applies in accordance with §89.1215(c).

Comment. One administrator, regarding the commissioner of education's ability to review the state's list of approved tests annually under §89.1225(o), expressed concern that changing the test every year or even every three years would be too costly to districts.

Agency Response. The agency disagrees and has maintained language as proposed. State law authorizes the commissioner the opportunity for annual approval.

Comment. One administrator sought clarification regarding the assessment requirements for reclassification outlined in §89.1226(i)(1).

Agency Response. The agency provides the following clarification. Beginning in the 2019-2020 school year, English learners will need to achieve scores of advanced high on all four Texas English Language Proficiency Assessment System (TELPAS) domains (reading, writing, listening, speaking), achieve success on state reading assessments or perform at the 40th percentile or above on the state-approved norm-referenced reading achievement test at Grades 1, 2, 11, and 12, and earn a satisfactory rating on the state's student exit rubric.

Comment. Two administrators asked for clarification on §89.1210(d)(1) and (2) regarding the certification requirements for teachers serving English learners through an ESL program in which two different teachers are assigned to deliver language arts and reading instruction, such as a reading teacher and a separate language arts teacher.

Agency Response. The agency provides the following clarification. When implementing an ESL program model, and the English language arts and reading (ELAR) Texas Essential Knowledge and Skills (TEKS) are divided between two teachers, an English language arts (ELA) teacher and a reading teacher, ESL certification is required for both the ELA teacher and the reading teacher.

Comment. Three administrators asked for clarification on §89.1210(d)(1) regarding the specific certification requirements for teachers serving in a content-based ESL program model and wanted to know whether the same ESL certification requirements applied at middle school and high school.

Agency Response. The agency provides the following clarification. When implementing a content-based ESL program model, all four content teachers, or an appropriately certified generalist, must be certified in ESL. This applies at all grade levels, including middle school and high school.

Comment. One administrator requested an explanation for the rationale for changes in ESL certification requirements in §89.1210.

Agency Response. The agency provides the following explanation. The changes in certification requirements for educators serving English learners through ESL pull-out or content-based ESL program models were made to ensure alignment with TEC, §29.066.

Comment. One administrator suggested revising the language to clarify specific teacher certification requirements for educators serving in the content-based ESL program model.

Agency Response. The agency agrees that additional clarification is necessary. In response to this and other comments, §89.1210(d)(1) has been modified at adoption to read, "An ESL/content-based program model is an English acquisition program that serves students identified as English learners through English instruction by a teacher certified in ESL under TEC, §29.061(c), through English language arts and reading, mathematics, science, and social studies."

Comment. Four administrators expressed concern that the revised program model descriptions put forth in §89.1210 may result in an increase in the number of applications districts submit for ESL waivers.

Agency Response. The agency agrees that some, but not all, school districts will be impacted. In some instances, school districts may need to apply for ESL waivers while they adjust to comply with new rules. Other districts may need to change how they code their program model in TSDS PEIMS from content-based ESL to ESL pull-out to avoid applying for additional ESL waivers. The agency has determined that this temporary situation will be remedied once districts have time to ensure staff are appropriately certified.

Comment. One administrator stated that Response to Intervention (RTI) for students served through bilingual education programs is not mentioned in rule text and asked for clarification on appropriate delivery of RTI services for English learners.

Agency Response. The agency provides the following clarification. Information on effective implementation of RTI for students served through bilingual education programs is provided by the agency through guidance posted on the TEA website at https://tea.texas.gov/Academics/Special_Student_Populations/Special_Education/Programs_and_Services/Response_to_Intervention/.

Comment. One administrator expressed concern over the mismatch between the four-week requirement set for identifying English learners and the lengthier allowable time period permitted for identifying students with special needs and the impact that these mismatched timelines may have on student identification, placement, and services.

Agency Response. The agency agrees that state law is incongruent with regard to identification timelines between program areas but has maintained language as proposed in accordance with TEC, §29.056.

Comment. Two administrators requested clarification on how "10th day" is defined under §89.1220(h).

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1220(h) has been modified at adoption to read, "...not later than the 10th calendar day after the date of the student's classification...."

Comment. Two administrators asked whether language describing monitoring requirements in §89.1220(k) should be changed from "in the first two years" to "the first four years after reclassification" to ensure alignment with the new monitoring requirements under ESSA.

Agency Response. The agency provides the following clarification. The ESSA requirement to track academic progress of English learners for the first four years after their reclassification is for federal accountability purposes only and is separate from the state's two-year monitoring requirement in accordance with TEC, §29.056.

Comment. Two administrators asked whether the TEA would ever consider selecting an instrument for identifying English learners that includes all four language domains (reading, writing, listening, speaking) so as to require the administration of only one instrument.

Agency Response. The agency provides the following clarification. In accordance with new ESSA requirements, a single assessment instrument that assesses all four language domains (reading, writing, listening, speaking) will be used to identify English learners beginning in the 2019-2020 school year in accordance with §89.1226.

Comment. Two administrators sought clarification of §89.1225(k) regarding the statement that English learners may not be exited from program services if the LPAC has recommended designated supports on the state reading or writing instrument, pointing out that only certain designated supports could keep students from exiting.

Agency Response. The agency provides the following clarification. While it is accurate that not all designated supports on state assessments would prevent an English learner from being reclassified as English proficient, this rule only applies to designated supports that are "recommended by the LPAC." Specific names and categories of designated supports, as determined by the TEA Student Assessment Division, may change over time, so TEA uses a general term in rule text to ensure alignment over time. The agency has maintained language as proposed.

Comment. One administrator asked for clarification regarding the timing of the administration of the home language survey by the receiving district of a transfer student for students previously enrolled in a public school in Texas, as described in §89.1215(d), and expressed the desire for the receiving district to have the authority to administer a new home language survey for the incoming student on the day of enrollment in order to begin the identification process immediately so that the child can be placed with the appropriate teacher as soon as possible.

Agency Response. The agency provides the following clarification. State law requires that a home language survey be administered upon a student's initial enrollment in a Texas school in accordance with TEC, §29.056. School districts receiving a transfer student coming from another Texas school shall document due diligence in attempting to locate that student's original home language survey to avoid duplicated efforts and the possibility of misidentification of English learners. If the receiving district is unable to obtain the original home language survey after multiple documented attempts, the district may administer a new home language survey while continuing its attempts. TEC, §29.056(a)(1), requires that students be identified as English learners within four weeks of enrollment, not within four weeks of completion of the home language survey, so in cases where the receiving district has failed to obtain the original home language survey from the sending district and must administer a new home language survey, the four-week timeframe still began on the child's school enrollment date, not the date when the new home language survey was administered. The agency has maintained language as proposed.

Comment. One member of the State Board of Education (SBOE) asked for clarification regarding the change from the use of English language learners to the use of English learners.

Agency Response. The agency provides the following clarification. The change in terms is to be in alignment with the language used in ESSA.

Comment. One member of the SBOE asked for clarification regarding the reference to timelines for being prepared for English-only instruction in dual language/one-way and dual language/two-way program models and its impact on A-F accountability ratings and its alignment with the policy that state assessments be made available in English only after the elementary grades.

Agency Response. The agency provides the following clarification. Regarding the impact of language of assessment on A-F accountability ratings, there is no discernible negative impact. English learners served through a dual language program model receive instruction in both English and another language with a goal of attaining full proficiency in both languages. Therefore, participating in state assessments administered in English at the secondary level is aligned with the program model goals.

Comment. One member of the SBOE stated that dual language program models are additive bilingual education models and that transitional bilingual education program models are subtractive and identified dual language goals as bilingualism/biliteracy, academic achievement, and cultural competence.

Agency Response. The agency provides the following clarification. These statements regarding characteristics of various bilingual program models go beyond the scope of basic program descriptions and will be addressed in guidance that is currently under development and will be posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One member of the SBOE stated that a student does not exit a dual language education model but rather exits language proficiency status.

Agency Response. The agency provides the following clarification. When an English learner demonstrates English proficiency through meeting established criteria, in accordance with TEC, §29.056(3)(g), that child is reclassified as English proficient. The term "reclassification" is used to make clear that reclassification does not necessarily equate with cessation of participation in ("exit from") program services.

Comment. One member of the SBOE stated that the only difference between a dual language one-way program model and a dual language two-way program model is student composition and that everything else is the same.

Agency Response. The agency provides the following clarification. For the purposes of providing basic program definitions, it is accurate to state that the main difference between a one-way and a two-way dual language program model is student composition. Differences in program implementation, which would include differences in approaches to instruction, strategies for family involvement, and others, exist between the two program models but go beyond the scope of a basic program model description.

Comment. One member of the SBOE recommended inclusion of information on research-based biliteracy, to include simultaneous and successive biliteracy, as well as a requirement of assessments to be administered in both program languages to all program participants.

Agency Response. The agency provides the following clarification. The recommended information goes beyond the scope of basic program descriptions and will be addressed in guidance that is currently under development and will be posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator asked whether students who meet reclassification criteria earlier than the sixth year of dual language program participation, in accordance with §89.1210(c)(3), would be reclassified and exited out of the program completely or if they would be reclassified but permitted to continue to participate in the program without generating funds.

Agency Response. The agency provides the following clarification. A student being served through a dual language program model reclassifies at the end of the year in which the child meets all reclassification criteria, in accordance with TEC, §29.056(3)(g), but shall continue participating in the program without generating funds. This is because the dual language program model is specifically designed with the goal of its participants being bilingual and biliterate through prolonged program participation, so reclassification does not equate with program exit.

Comment. One administrator noted the striking of language calling for an even balance of English speakers and English learners, whenever possible, in dual language/two-way classrooms at the beginning of the program and the application of statute limiting participation of fluent English speakers to no more than 40% of total program participants. The administrator asked for clarification as to whether districts will have autonomy in balancing student numbers in dual language/two-way classrooms and whether the 40% limit applies at the classroom or districtwide level.

Agency Response. The agency provides the following clarification. School districts have the autonomy to determine the specific makeup of individual dual language/two-way classrooms regarding the balance of English proficient students and English learners. The requirement that no more than 40% of program participants be English proficient applies districtwide and not at the classroom level.

Comment. One administrator recommended that the teacher certification requirements be loosened to allow for any content teacher serving the English learner to suffice as the ESL-certified teacher in the ESL/pull-out model to avoid an increase in the number of ESL waivers.

Agency Response. The agency disagrees and has maintained language as proposed in accordance with TEC, §29.066(b)(2).

Comment. One administrator expressed concern that defining the dual language/one-way program model in terms of a requirement that at least half of the instruction be delivered in the student's primary language for the duration of the program takes away district flexibility to offer a program with time allotments that best meet the needs of the student. The administrator also asserted that there is confusion in the field due to the fact that TEC, Chapter 29, does not provide a specific time allotment for language instruction to be delivered in the students' primary language.

Agency Response. The agency provides the following clarification. The requirement that instruction in the non-English program language not fall below 50% of the total instructional time for the duration of the program is a basic tenet of dual language program models identified in research (Thomas, W.P, and Collier, V.P. (2012). Dual language education for a transformed world. Albuquerque, NM: Fuente Press). For school districts seeking flexibility to offer a program with time allotments for primary language instruction diminishing as students acquire English, they have the autonomy to provide bilingual education services through one of the two transitional bilingual education models. As is generally the case, TEC, Chapter 29, Subchapter B, provides basic information and requirements, whereas rules in Chapter 89 are designed to assist school districts by providing more specific and detailed guidance on how to effectively implement statutory requirements.

Comment. One administrator expressed concern that §89.1225(k), which states that English learners for whom the LPAC has recommended designated supports or accommodations on the state reading or writing assessment instrument shall not be eligible for program exit, will increase the number of long-term English learners in the state.

Agency Response. The agency disagrees. If the LPAC has determined that linguistic supports are needed in order for an English learner to be successful on state assessments, the English learner is not considered ready for successful participation in classroom instruction that is not designed to meet his or her specific needs.

Comment. One administrator recommended that language be added in §89.1207(a)(1) to clarify that students should not be placed in ESL merely because an appropriately certified bilingual teacher is not available, but rather that an exception should be submitted and specific TSDS PEIMS codes entered.

Agency Response. The agency disagrees and has maintained language as proposed. The language in rule provides a general description of the actions to be taken when submitting a bilingual exception. The agency provides guidance on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. One administrator recommended that language be added to §89.1207(a) and (b)(1)(e) to make clear that Title III funds are not to be used to help meet the 10% minimum requirement for expenditure of bilingual education allotment funds to provide professional development activities in cases where an exception or waiver was filed.

Agency Response. The agency disagrees and has maintained language as proposed. The language in rule makes clear the expectation that a minimum of 10% of bilingual allotment funds, not Title III funds, are to be used to provide targeted professional development. In addition, a definition of the bilingual education allotment has been added in §89.1203(2) to provide further clarification.

Comment. One administrator recommended adding "in accordance with §89.1233(a)" to the end of the sentence in §89.1228(a) to clarify that services for English learners shall be prioritized over the needs of English-fluent students in a bilingual education program.

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1228(a) has been modified at adoption to read, "Student enrollment in a two-way dual language immersion program model is optional for English proficient students in accordance with §89.1233(a) of this title (relating to Participation of English Proficient Students)."

Comment. One administrator expressed concern that the required minimum number of hours for summer school services for English learners is excessive and recommended the required number be reduced.

Agency Response. The agency disagrees and has maintained language as proposed. It is a statutory requirement under TEC, §29.060(a), that a minimum of 120 hours of summer school instruction be provided.

Comment. One administrator expressed support for the selection of the TELPAS as the most accurate measure of English proficiency to be used for making student reclassification decisions.

Agency Response. The agency agrees and has maintained language as proposed.

Comment. One administrator expressed support for the proposed changes in program model descriptions and teacher certification requirements but suggested that implementation of these proposed changes be deferred one year for full implementation in the 2019-2020 school year to allow districts time and budgetary flexibility to provide teachers training and preparation for taking the ESL supplemental certification exam.

Agency Response. The agency disagrees and has maintained language as proposed. The agency acknowledges that districts will go through an adjustment process to be fully compliant with the new rules. Districts will be afforded the flexibility to apply for ESL waivers while they adjust to comply with new rules. Another option is for districts to change how they code their program model in TSDS PEIMS from content-based ESL to ESL pull-out to avoid applying for additional ESL waivers during the transition.

Comment. One teacher, the Texas Teachers of English to Speakers of Other Languages (TexTESOL), and two administrators suggested that a parent representative no longer be required on the LPAC or that school districts be able to pay parents for serving on the LPAC. The commenters cited that other states do not require parent representation on the LPAC and that districts experience difficulty recruiting parents for this role, getting parents to take the necessary time off work to serve on the LPAC, and convening the LPAC in a timely manner in compliance with required timelines.

Agency Response. The agency disagrees. The inclusion of a parent representative on the LPAC is a statutory requirement under TEC, §29.063(b). The role of the parent representative on the LPAC is to provide input that is independent of the school district. Payment of the parent representative could be construed as a potential conflict of interest.

Comment. One administrator expressed the opinion that added requirements for waiver documentation and assurances are a moot point and that actionable supports from the TEA and regional education service centers are needed for districts to find quality teacher candidates.

Agency Response. The agency disagrees and has maintained language as proposed. The agency provides guidance on the TEA website at https://tea.texas.gov/bilingual/esl/education/. Further guidance is currently under development and will be posted on the TEA website.

Comment. One administrator and TexTESOL expressed general support for the proposed changes and cited increased clarity in language as a noted improvement.

Agency Response. The agency agrees.

Comment. One administrator requested clarification of the meaning of the terms "intensive instruction" and "mastery" as used in §89.1210.

Agency Response. The agency provides the following clarification. The terms "intensive instruction" and "mastery" are taken from TEC, §29.055(a). "Intensive instruction" is instruction delivered by teachers trained in recognizing and dealing with language differences. "Mastery" is attainment of full proficiency in English through participation in carefully structured and sequenced instruction in English language skills.

Comment. One administrator suggested that the bilingual teacher on the LPAC be specifically identified as the bilingual teacher of record.

Agency Response. The agency disagrees and has maintained language as proposed. The specific role of the bilingual teacher represented on the LPAC lies outside the scope of statutory requirements. Specific information and recommendations for best practices in the composition of the LPAC are shared in guidance and posted on the TEA website at https://tea.texas.gov/bilingual/esl/education/.

Comment. TexTESOL stated that English language proficiency assessments used in other states have five or six levels, whereas the TELPAS used in Texas only has four levels, thus not allowing sufficient time for English learners to acquire English language skills, which research indicates take on average 5-7 years to develop.

Agency Response. The agency disagrees. The four levels of English language proficiency identified through TELPAS are not devised to each represent categorically one year of progress in attaining language proficiency. Students may advance at different rates in each language domain (reading, writing, listening, speaking) and may progress through the four TELPAS levels at a rate commensurate with their abilities.

Comment. One member of the SBOE and one administrator commented that the TEA should stop using the term limited English proficient as it is a subtractive and derogatory term.

Agency Response. The agency provides the following clarification. The term "student of limited English proficiency" is used throughout TEC, Chapter 29, Subchapter B. In the proposed revisions to Chapter 89, the term LEP is replaced with English learner whenever statutorily allowable. In response to these comments, the definition of English learner in §89.1203(7) has been modified at adoption to read, "A student who is in the process of acquiring English and has another language as the primary language. The terms English language learner and English learner are used interchangeably and are synonymous with limited English proficient (LEP) student, as used in TEC, Chapter 29, Subchapter B."

Comment. The Mexican American Legal Defense and Educational Fund (MALDEF) expressed concern that the proposed provisions §89.1210(d)(1) and (2) remove the current requirement that schools provide sheltered instruction in all content areas for English learners in high schools without replacing it with further guidance for teachers and schools. MALDEF further asserted that removing the requirement for sheltered instruction from both ESL program models provides no guidance for teachers on how to teach academic content that is "linguistically and culturally responsive," in accordance with proposed §89.1210(d)(1) and (2). MALDEF stated that TEA would do a disservice to English learners in secondary schools and help contribute to their already high dropout rates should the proposed rules be adopted. MALDEF requested that the proposed revisions be modified to include sheltered instruction for all content areas in both English as a second language program models.

Agency Response. The agency disagrees and has maintained language as proposed. The ESL program model descriptions put forth in proposed §89.1210(d)(1) and (2) represent a strengthening of the qualification requirements by making clear that the teacher(s) serving an English learner must have full ESL certification. In the ESL pull-out model, it is the English language arts and reading teacher who must be ESL certified. In the content-based ESL model, all four core content area teachers (English language arts and reading, mathematics, science, social studies) must be ESL certified in order to ensure content-based ESL instruction is delivered effectively. To gain full ESL certification, teachers must be able to demonstrate a wide range of skills and competencies that include, but go above and beyond, sheltered instruction. The TEA has determined that the new ESL certification requirements for teachers serving English learners through either of the state's two ESL program models greatly increase the state's ability to effectively meet the needs of English learners at the elementary and the secondary levels.

Comment. One administrator suggested that language be added in §89.1265(b)(4) to make clear that the training provided to teachers and aides is targeted to build capacity in meeting the needs of English learners.

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1265(b)(4) has been modified at adoption to read, "the number of teachers and aides trained and the frequency, scope, and results of the professional development in approaches and strategies that support second language acquisition."

Comment. One administrator recommended the inclusion in rule text of clearly defined stipulations for districts that demonstrate areas of concern of English learner performance based on their annual evaluation.

Agency Response. The agency disagrees as there is no statutory authority for making such stipulations. The agency has maintained language as proposed.

Agency Response. The agency provides the following clarification. The term "equitable access" refers to the ways in which educational institutions and policies ensure that all students have the opportunity to take full advantage of the full range of resources made generally available.

Comment. One administrator requested clarification as to what data districts should use to determine whether a student needs to stay at a newcomer center for a second year.

Agency Response. The agency provides the following clarification. The LPAC shall review the progress of the English learner at the end of the first year of enrollment at the newcomer center in accordance with §89.1220(g) to determine the most appropriate placement for the student in the following school year.

Comment. One member of the SBOE recommended adding "thinking" to the list of areas in which an English learner is to become competent in fulfillment of the goals of bilingual education programs to correlate with the TEKS.

Agency Response. The agency disagrees. English learner programs focus on the development of the four language domains recognized in second language acquisition research, namely reading, writing, listening, and speaking. The agency has maintained the language as proposed.

Comment. One member of the SBOE asked for clarification of the term "primary language" as used throughout the proposed rules, specifically regarding whether its use means that students will be taught in their native language (including languages other than Spanish). On a related note, the SBOE member asked for clarification as to what the use of the term "primary language" implies for staffing at the district level.

Agency Response. The agency provides the following clarification. The use of primary language is an inclusive term to replace "Spanish or another language" in current rule text. If a school district meets the criteria that require that it provide some form of bilingual education program services in accordance with §89.1205(a) and (b), the school district is required to provide those services in the primary language of that group of students, be it Spanish, Vietnamese, Arabic, or some other language. Accordingly, the school district in question shall staff those classrooms with appropriately certified bilingual teachers to deliver instruction in that group of students' primary language and English.

Comment. One member of the SBOE asked for clarification as to who or what determines the second language acquisition methods to be used across the state as part of ESL programming.

Agency Response. The agency provides the following clarification. The second language acquisition methods to be used across the state in the delivery of effective ESL programming and instruction are established through the competencies tested on the ESL certification test, which must be successfully completed in order for a teacher to become ESL certified and serve in one of the state's ESL program model classrooms.

Comment. A member of the SBOE asked for clarification on the meaning of the term "professional transitional language educator," including the source of the definition, credentialed college of education, university training, qualifying course, and credits earner.

Agency Response. The agency provides the following clarification. The term "professional transitional language educator" is used in TEC, §29.063, with no definition or credentialing information provided. It is synonymous with ESL-certified teacher in Chapter 89.

Comment. A member of the SBOE expressed concern that the deletion of language regarding the denial of a bilingual exception for districts that have excessive numbers of allowable exemptions from required state assessments will provide room for entities to commit fraud and will not protect students.

Agency Response. The agency disagrees. The language regarding excessive numbers of allowable exemptions was deleted because it is outdated and does not align with current guidance from the TEA Division of Student Assessment, as exemptions are no longer allowable for English learners on required state assessments. The agency has maintained the language as proposed.

Comment. One member of the SBOE asked for clarification regarding which students are served through dual language one-way and two-way program models.

Agency Response. The agency provides the following clarification. Students whose primary language is English may be served through a two-way dual language program model, alongside students identified as English learners. One-way dual language programs serve students currently or formerly identified as English learners exclusively.

Comment. One member of the SBOE asked whether schools that do not meet the general standards for recognition of dual language immersion program models outlined in §89.1229 are not allowed to implement a dual language program.

Agency Response. The agency provides the following clarification. This rule describes requirements for a school implementing a dual language program model to get special recognition. Schools that do not meet the general standards put forth in this rule may continue to operate, but they will not gain recognition.

Comment. One member of the SBOE requested an explanation of the rationale behind the rule that the number of participating students who are not English learners shall not exceed 40% of the number of students enrolled in the program districtwide.

Agency Response. The agency provides the following clarification. As referenced in the rule text itself, the 40% is in accordance with requirements put forth in TEC, §29.058.

Comment. One administrator expressed appreciation for changes in language throughout the proposed rule text that portrays English learners in a more positive light and aligns with language used in ESSA. Specific examples included the discontinuation of use of the term LEP and the use of the term "linguistic needs" instead of "special needs."

Agency Response. The agency agrees and has maintained the language as proposed.

Comment. One administrator commented that the use of the term "dual-language instruction" creates confusion because it can easily be misinterpreted as the dual language immersion program and suggested that the agency substitute this phrase with "bilingual instruction."

Agency Response. The agency disagrees and has maintained the language as proposed. Clarification of the term is adequately provided through inclusion of a definition for "dual-language instruction" in §89.1203(4) and through a parenthetical clarification of the term as "English and primary language" instruction in §89.1205(b).

Comment. One administrator strongly supported the proposed revisions for §89.1207(a)(1)(D) and (E), commenting that the new language regarding the comprehensive professional development plan allows and encourages coherence and strategic alignment around the greater goal of program implementation and student achievement while still requiring attention to alternative programs.

Agency Response. The agency agrees and has maintained the language as proposed.

Comment. One administrator expressed support for the revised program model definitions in §89.1210(a), which are seen to provide much needed clarification of bilingual education and ESL programs, especially differences between dual language and transitional bilingual programs. The commenter stated that the proposed revisions also provide greater alignment with education code pertaining to instructional materials, the English language proficiency standards (ELPS), and incorporation of students' primary languages and cultural aspects of students' backgrounds.

Agency Response. The agency agrees and has maintained the language as proposed.

Comment. One administrator recommended edits to §89.1235 to clarify possible misinterpretations that the proposed language might lead school districts to believe that they are required to enroll students in newcomer centers.

Agency Response. The agency agrees that additional clarification is necessary. In response to this and other comments, §89.1235 has been modified at adoption to read, "Recent immigrant English learners shall not remain enrolled in newcomer centers for longer than two years."

Comment. One administrator expressed support for the proposed revisions under §89.1226(c)(1) and (2), stating that standardization of a specific state-approved English language proficiency test for identification makes it easier to interpret student information when they move from one district to another.

Agency Response. The agency agrees and has maintained the language as proposed.

Comment. Texas Classroom Teachers Association (TCTA) voiced concern over striking language in current rule text referring to teachers serving on some type of permit, stating that the proposed language provides no clear mechanism by which inappropriately certified or uncertified teachers assigned to teach bilingual education must work toward completing certain requirements within a certain time frame in order to become appropriately certified by the end of that time frame. TCTA suggested that the rules be further revised to clearly address what the mechanism is and what the expectations are for uncertified teachers to attain the appropriate certification.

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1245(a) has been modified at adoption to read, "School districts that are unable to secure a sufficient number of appropriately certified bilingual education and/or ESL teachers to provide the required programs shall request activation of the appropriate permits in accordance with Chapter 230 of this title (relating to Professional Educator Preparation and Certification)."

Comment. TCTA recommended that the word "appropriately" be added before the word "certified" throughout §89.1207 to align with §89.1245 and make perfectly clear that teachers hired to serve English learners in a bilingual education or ESL program must hold all necessary certifications.

Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, language has been modified at adoption to change "certified" to "appropriately certified" in §§89.1201(a)(3); 89.1207(a)(1), (a)(1)(A), (a)(1)(C), (a)(1)(D)(ii), (a)(1)(F), (b)(1), (b)(1)(A), (b)(1)(C), (b)(1)(D)(ii), (b)(1)(F), and (b)(2)(E); 89.1210(d)(1) and (2); and 89.1220(b).

19 TAC §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1225 - 89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, 89.1265

STATUTORY AUTHORITY. The amendments and new sections are adopted under Texas Education Code (TEC), §29.051, which establishes the policy of the state to ensure equal educational opportunity to students with limited English proficiency through the provision of bilingual education and special language programs in the public schools and supplemental financial assistance to help school districts meet the extra costs of the programs; TEC, §29.053, which outlines requirements for reporting the number of students with limited English proficiency in school districts and explains the criteria for determining whether a district is required to provide bilingual education or special language programs at the elementary and secondary school levels; TEC, §29.054, which describes the application process and documentation requirements for school districts filing a bilingual education exception; TEC, §29.055, which establishes basic requirements in the content and methods of instruction for the state's bilingual education and special language programs; TEC, §29.056, which authorizes the state to establish standardized criteria for the identification, assessment, and classification of students of limited English proficiency and describes required procedures for the identification, placement, and exiting of students with limited English proficiency; TEC, §29.0561, which provides information regarding requirements for the reevaluation and monitoring of students with limited English proficiency for two years after program exit; TEC, §29.057, which requires that bilingual education and special language programs be located in the regular public schools rather than separate facilities, that students with limited English proficiency are placed in classes with other students of similar age and level of educational attainment, and that a maximum student-teacher ratio be set by the state that reflects student needs; TEC, §29.058, which authorizes districts to enroll students who do not have limited English proficiency in bilingual education programs, with a maximum enrollment of such students set at 40% of the total number of students enrolled in the program; TEC, §29.059, which allows school districts flexibility to join other districts to provide services for students with limited English proficiency; TEC, §29.060, which describes requirements for offering summer school programs for students with limited English proficiency eligible to enter kindergarten or Grade 1 in the subsequent school year; TEC, §29.061, which describes teacher certification requirements for educators serving students with limited English proficiency in bilingual education and special language programs; TEC, §29.062, which authorizes the state to evaluate the effectiveness of programs under TEC, Subchapter B; TEC, §29.063, which explains the roles and responsibilities of the language proficiency assessment committee and describes the composition of its membership; TEC, §29.064, which allows for a parent appeals process; and TEC, §29.066, which provides information regarding a school district's coding of students participating in bilingual education and special language programs through the Texas Student Data System Public Education Information Management System.

CROSS REFERENCE TO STATUTE. The amendments and new sections implement Texas Education Code, §§29.051, 29.053-29.056, 29.0561, 29.057-29.063, and 29.066.

§89.1201.Policy.

(a) It is the policy of the state that every student in the state who has a primary language other than English and who is identified as an English learner shall be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program, as required in the Texas Education Code (TEC), Chapter 29, Subchapter B. To ensure equal educational opportunity, as required in the TEC, §1.002(a), each school district shall:

(1) identify English learners based on criteria established by the state;

(2) provide bilingual education and ESL programs, as integral parts of the general program as described in the TEC, §4.002;

(3) seek appropriately certified teaching personnel to ensure that English learners are afforded full opportunity to master the essential knowledge and skills required by the state; and

(4) assess achievement for essential knowledge and skills in accordance with the TEC, Chapter 29, to ensure accountability for English learners and the schools that serve them.

(b) The goal of bilingual education programs shall be to enable English learners to become competent in listening, speaking, reading, and writing in the English language through the development of literacy and academic skills in the primary language and English. Such programs shall emphasize the mastery of English language skills, as well as mathematics, science, and social studies, as integral parts of the academic goals for all students to enable English learners to participate equitably in school.

(c) The goal of ESL programs shall be to enable English learners to become competent in listening, speaking, reading, and writing in the English language through the integrated use of second language acquisition methods. The ESL program shall emphasize the mastery of English language skills, as well as mathematics, science, and social studies, as integral parts of the academic goals for all students to enable English learners to participate equitably in school.

(d) Bilingual education and ESL programs shall be integral parts of the total school program. Such programs shall use instructional approaches designed to meet the specific language needs of English learners. The basic curriculum content of the programs shall be based on the Texas Essential Knowledge and Skills and the English language proficiency standards required by the state.

§89.1203.Definitions.

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

(1) Bilingual education allotment--An adjusted basic funding allotment provided for each school district based on student average daily attendance in a bilingual education or special language program in accordance with Texas Education Code (TEC), §42.153.

(2) Certified English as a second language teacher--The term "certified English as a second language teacher" as used in this subchapter is synonymous with the term "professional transitional language educator" used in TEC, §29.063.

(3) Dual language immersion--A state-approved bilingual program model in accordance with TEC, §29.066.

(4) Dual-language instruction--An educational approach that focuses on the use of English and the student's primary language for instructional purposes.

(5) English as a second language program--A special language program in accordance with TEC, Chapter 29.

(6) English language proficiency standards (ELPS)--Standards to be published along with the Texas Essential Knowledge and Skills for each subject in the required curriculum outlined in Chapter 74 of this title (relating to Curriculum Requirements), including foundation and enrichment areas, ELPS, and college and career readiness standards.

(7) English learner--A student who is in the process of acquiring English and has another language as the primary language. The terms English language learner and English learner are used interchangeably and are synonymous with limited English proficient (LEP) student, as used in TEC, Chapter 29, Subchapter B.

(8) Exit--The point when a student is no longer classified as LEP (i.e., the student is reclassified), no longer requires bilingual or special language program services, and is classified as non-LEP in the Texas Student Data System Public Education Information Management System (TSDS PEIMS). The term "exit" as used in this subchapter is synonymous with the description in TEC, Chapter 29, of "transferring out" of bilingual or special language programming.

(9) Reclassification--The process by which the language proficiency assessment committee determines that an English learner has met the appropriate criteria to be classified as non-LEP and is coded as such in TSDS PEIMS.

(10) School district--For the purposes of this subchapter, the definition of a school district includes an open-enrollment charter school.

§89.1207.Bilingual Education Exceptions and English as a Second Language Waivers.

(a) Bilingual education program.

(1) Exceptions. A school district that is unable to provide a bilingual education program as required by §89.1205(a) of this title (relating to Required Bilingual Education and English as a Second Language Programs) because of an insufficient number of appropriately certified teachers shall request from the commissioner of education an exception to the bilingual education program and the approval of an alternative program. The approval of an exception to the bilingual education program shall be valid only during the school year for which it was granted. A request for a bilingual education program exception must be submitted by November 1 and shall include:

(A) a statement of the reasons the school district is unable to provide a sufficient number of appropriately certified teachers to offer the bilingual education program with supporting documentation;

(B) a description of the alternative instructional program and methods to meet the affective, linguistic, and cognitive needs of the English learners, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, English language proficiency standards (ELPS), and college and career readiness standards (CCRS);

(C) an assurance that appropriately certified teachers available in the school district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels to ensure that the linguistic and academic needs of the English learners with beginning levels of English proficiency are served on a priority basis;

(D) an assurance that the school district will implement a comprehensive professional development plan that:

(i) is ongoing and targets the development of the knowledge, skills, and competencies needed to serve the needs of English learners;

(ii) includes the teachers who are not certified or not appropriately certified who are assigned to implement the proposed alternative program; and

(iii) may include additional teachers who work with English learners;

(E) an assurance that at least 10% of the bilingual education allotment shall be used to fund the comprehensive professional development plan required under subparagraph (D) of this paragraph;

(F) an assurance that the school district will take actions to ensure that the program required under §89.1205(a) of this title will be provided the subsequent year, including its plans for recruiting an adequate number of appropriately certified teachers to eliminate the need for subsequent exceptions and measurable targets for the subsequent year; and

(G) an assurance that the school district shall satisfy the additional reporting requirements described in §89.1265(c) of this title (relating to Evaluation).

(2) Documentation. A school district submitting a bilingual education exception shall maintain written records of all documents supporting the submission and assurances listed in paragraph (1) of this subsection, including:

(A) a description of the proposed alternative instructional program designed to meet the affective, linguistic, and cognitive needs of the English learners;

(B) the number of teachers for whom a bilingual education exception is needed by grade level and per campus;

(C) a copy of the school district's comprehensive professional development plan; and

(D) a copy of the bilingual allotment budget documenting that a minimum of 10% of the funds were used to fund the comprehensive professional development plan.

(3) Approval of exceptions. Bilingual education program exceptions will be granted by the commissioner if the requesting school district:

(A) meets or exceeds the state average for English learner performance on the required state assessments;

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(F) of this subsection submitted the previous year and approved by the Texas Education Agency (TEA); or

(C) reduces by 25% the number of teachers under exception for bilingual programs when compared to the number of exceptions granted the previous year.

(4) Denial of exceptions. A school district denied a bilingual education program exception must submit to the commissioner a detailed action plan for complying with required regulations for the following school year.

(5) Appeals. A school district denied a bilingual education program exception may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(6) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the Texas Education Code (TEC), §39.057, if a school district is denied a bilingual education program exception for more than three consecutive years.

(7) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.102.

(b) English as a second language (ESL) program.

(1) Waivers. A school district that is unable to provide an ESL program as required by §89.1205(c) of this title because of an insufficient number of appropriately certified teachers shall request from the commissioner a waiver of the certification requirements for each teacher who will provide instruction in ESL for English learners. The approval of a waiver of certification requirements shall be valid only during the school year for which it was granted. A request for an ESL program waiver must be submitted by November 1 and shall include:

(A) a statement of the reasons the school district is unable to provide a sufficient number of appropriately certified teachers to offer the ESL program;

(B) a description of the alternative instructional program, including the manner in which the teachers in the ESL program will meet the affective, linguistic, and cognitive needs of the English learners, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title to include foundation and enrichment areas, ELPS, and CCRS;

(C) an assurance that appropriately certified teachers available in the school district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels in the elementary school campus and, if needed, secondary campuses, to ensure that the linguistic and academic needs of the English learners with the lower levels of English proficiency are served on a priority basis;

(D) an assurance that the school district shall implement a comprehensive professional development plan that:

(i) is ongoing and targets the development of the knowledge, skills, and competencies needed to serve the needs of English learners;

(ii) includes the teachers who are not certified or not appropriately certified who are assigned to implement the proposed alternative program; and

(iii) may include additional teachers who work with English learners;

(E) an assurance that at least 10% of the bilingual education allotment shall be used to fund the comprehensive professional development plan required under subparagraph (D) of this paragraph;

(F) an assurance that the school district will take actions to ensure that the program required under §89.1205(c) of this title will be provided the subsequent year, including its plans for recruiting an adequate number of appropriately certified teachers to eliminate the need for subsequent waivers; and

(G) an assurance that the school district shall satisfy the additional reporting requirements described in §89.1265(c) of this title.

(2) Documentation. A school district submitting an ESL waiver shall maintain written records of all documents supporting the submission and assurances listed in paragraph (1) of this subsection, including:

(A) a description of the proposed alternative instructional program designed to meet the affective, linguistic, and cognitive needs of the English learners;

(B) the name and teaching assignment, per campus, of each teacher who is assigned to implement the ESL program and is under a waiver and the estimated date for the completion of the ESL supplemental certification, which must be completed by the end of the school year for which the waiver was requested;

(C) a copy of the school district's comprehensive professional development plan;

(D) a copy of the bilingual allotment budget documenting that a minimum of 10% of the funds were used to fund the comprehensive professional development plan; and

(E) a description of the actions taken to recruit an adequate number of appropriately certified teachers.

(3) Approval of waivers. ESL waivers will be granted by the commissioner if the requesting school district:

(A) meets or exceeds the state average for English learner performance on the required state assessments; or

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(G) of this subsection submitted the previous year and approved by the TEA.

(4) Denial of waivers. A school district denied an ESL program waiver must submit to the commissioner a detailed action plan for complying with required regulations for the following school year.

(5) Appeals. A school district denied an ESL waiver may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(6) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the TEC, §39.057, if a school district is denied an ESL waiver for more than three consecutive years.

(7) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.102.

§89.1210.Program Content and Design.

(a) Each school district required to offer a bilingual education or English as a second language (ESL) program shall provide each English learner the opportunity to be enrolled in the required program at his or her grade level. Each student's level of proficiency shall be designated by the language proficiency assessment committee in accordance with §89.1220(g) of this title (relating to Language Proficiency Assessment Committee). The school district shall accommodate the instruction, pacing, and materials to ensure that English learners have a full opportunity to master the essential knowledge and skills of the required curriculum, which includes the Texas Essential Knowledge and Skills and English language proficiency standards (ELPS). Students participating in the bilingual education program may demonstrate their mastery of the essential knowledge and skills in either their primary language or in English for each content area.

(1) A bilingual education program of instruction established by a school district shall be a full-time program of dual-language instruction (English and primary language) that provides for learning basic skills in the primary language of the students enrolled in the program and for carefully structured and sequenced mastery of English language skills under Texas Education Code (TEC), §29.055(a).

(2) An ESL program of instruction established by a school district shall be a program of intensive instruction in English in which ESL teachers recognize and address language differences in accordance with TEC, §29.055(a).

(b) The bilingual education program and ESL program shall be integral parts of the general educational program required under Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, ELPS, and college and career readiness standards. In bilingual education programs, school districts shall purchase instructional materials in both program languages with the district's instructional materials allotment or otherwise acquire instructional materials for use in bilingual education classes in accordance with TEC, §31.029(a). Instructional materials for bilingual education programs on the list adopted by the commissioner of education, as provided by TEC, §31.0231, may be used as curriculum tools to enhance the learning process. The school district shall provide for ongoing coordination between the bilingual/ESL program and the general educational program. The bilingual education and ESL programs shall address the affective, linguistic, and cognitive needs of English learners as follows.

(1) Affective.

(A) English learners in a bilingual program shall be provided instruction using second language acquisition methods in their primary language to introduce basic concepts of the school environment, and content instruction both in their primary language and in English, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to consider the students' learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).

(B) English learners in an ESL program shall be provided instruction using second language acquisition methods in English to introduce basic concepts of the school environment, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to incorporate the students' primary languages and learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).

(2) Linguistic.

(A) English learners in a bilingual program shall be provided intensive instruction in the skills of listening, speaking, reading, and writing both in their primary language and in English, provided through the ELPS. The instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(B) English learners in an ESL program shall be provided intensive instruction to develop proficiency in listening, speaking, reading, and writing in the English language, provided through the ELPS. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(3) Cognitive.

(A) English learners in a bilingual program shall be provided instruction in language arts, mathematics, science, and social studies both in their primary language and in English, using second language acquisition methods in either their primary language, in English, or in both, depending on the specific program model(s) implemented by the district. The content area instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.

(B) English learners in an ESL program shall be provided instruction in English in language arts, mathematics, science, and social studies using second language acquisition methods. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills.

(c) The bilingual education program shall be implemented through at least one of the following program models.

(1) Transitional bilingual/early exit is a bilingual program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria to be successful in English-only instruction not earlier than two or later than five years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(1), for the assigned grade level and content area. The goal of early-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language along with instruction in English that targets second language development through academic content.

(2) Transitional bilingual/late exit is a bilingual program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(2), for the assigned grade level and content area. The goal of late-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language along with instruction in English that targets second language development through academic content.

(3) Dual language immersion/one-way is a bilingual/biliteracy program model in which students identified as English learners are served in both English and another language and are prepared to meet reclassification criteria in order to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. The goal of one-way dual language immersion is for program participants to attain full proficiency in another language as well as English. This model provides ongoing instruction in literacy and academic content in the students' primary language as well as English, with at least half of the instruction delivered in the students' primary language for the duration of the program.

(4) Dual language immersion/two-way is a bilingual/biliteracy program model in which students identified as English learners are integrated with students proficient in English and are served in both English and another language and are prepared to meet reclassification criteria in order to be successful in English-only instruction not earlier than six or later than seven years after the student enrolls in school. Instruction provided in a language other than English in this program model is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061, for the assigned grade level and content area. Instruction provided in English in this program model may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061, for the assigned grade level and content area. The goal of two-way dual language immersion is for program participants to attain full proficiency in another language as well as English. This model provides ongoing instruction in literacy and academic content in English and another language with at least half of the instruction delivered in the non-English program language for the duration of the program.

(d) The ESL program shall be implemented through one of the following program models.

(1) An ESL/content-based program model is an English acquisition program that serves students identified as English learners through English instruction by a teacher appropriately certified in ESL under TEC, §29.061(c), through English language arts and reading, mathematics, science, and social studies. The goal of content-based ESL is for English learners to attain full proficiency in English in order to participate equitably in school. This model targets English language development through academic content instruction that is linguistically and culturally responsive in English language arts and reading, mathematics, science, and social studies.

(2) An ESL/pull-out program model is an English acquisition program that serves students identified as English learners through English instruction provided by an appropriately certified ESL teacher under the TEC, §29.061(c), through English language arts and reading. The goal of ESL pull-out is for English learners to attain full proficiency in English in order to participate equitably in school. This model targets English language development through academic content instruction that is linguistically and culturally responsive in English language arts and reading. Instruction shall be provided by the ESL teacher in a pull-out or inclusionary delivery model.

(e) Except in the courses specified in subsection (f) of this section, second language acquisition methods, which may involve the use of the students' primary language, may be provided in any of the courses or electives required for promotion or graduation to assist the English learners to master the essential knowledge and skills for the required subject(s). The use of second language acquisition methods shall not impede the awarding of credit toward meeting promotion or graduation requirements.

(f) In subjects such as art, music, and physical education, English learners shall participate with their English-speaking peers in general education classes provided in the subjects. As noted in TEC, §29.055(d), elective courses included in the curriculum may be taught in a language other than English. The school district shall ensure that students enrolled in bilingual education and ESL programs have a meaningful opportunity to participate with other students in all extracurricular activities.

(g) The required bilingual education or ESL program shall be provided to every English learner with parental approval until such time that the student meets exit criteria as described in §89.1225(i) of this title (relating to Testing and Classification of Students) or §89.1226(i) of this title (relating to Testing and Classification of Students, Beginning with School Year 2019-2020) or graduates from high school.

§89.1220.Language Proficiency Assessment Committee.

(a) School districts shall by local board policy establish and operate a language proficiency assessment committee. The school district shall have on file policy and procedures for the selection, appointment, and training of members of the language proficiency assessment committee(s).

(b) The language proficiency assessment committee shall include an appropriately certified bilingual educator (for students served through a bilingual education program), an appropriately certified English as a second language (ESL) educator (for students served through an ESL program), a parent of an English learner participating in a bilingual or ESL program, and a campus administrator in accordance with Texas Education Code (TEC), §29.063.

(c) In addition to the three required members of the language proficiency assessment committee, the school district may add other trained members to the committee.

(d) No parent serving on the language proficiency assessment committee shall be an employee of the school district.

(e) A school district shall establish and operate a sufficient number of language proficiency assessment committees to enable them to discharge their duties within four weeks of the enrollment of English learners.

(f) All members of the language proficiency assessment committee, including parents, shall be acting for the school district and shall observe all laws and rules governing confidentiality of information concerning individual students. The school district shall be responsible for the orientation and training of all members, including the parents, of the language proficiency assessment committee.

(g) Upon their initial enrollment and at the end of each school year, the language proficiency assessment committee shall review all pertinent information on all English learners identified in accordance with §89.1225(f) of this title (relating to Testing and Classification of Students) or §89.1226 of this title (relating to Testing and Classification of Students, Beginning with School Year 2019-2020) and shall:

(1) designate the language proficiency level of each English learner in accordance with the guidelines issued pursuant to §89.1225(b)-(f) or §89.1226(b)-(f) of this title;

(2) designate the level of academic achievement of each English learner;

(3) designate, subject to parental approval, the initial instructional placement of each English learner in the required program;

(4) facilitate the participation of English learners in other special programs for which they are eligible while ensuring full access to the language program services required under the TEC, §29.053; and

(5) reclassify students, at the end of the school year only, as English proficient in accordance with the criteria described in §89.1225(i) or §89.1226(i) of this title.

(h) The language proficiency assessment committee shall give written notice to the student's parent or guardian, advising that the student has been classified as an English learner and requesting approval to place the student in the required bilingual education or ESL program not later than the 10th calendar day after the date of the student's classification in accordance with TEC, §29.056. The notice shall include information about the benefits of the bilingual education or ESL program for which the student has been recommended and that it is an integral part of the school program.

(i) Before the administration of the state criterion-referenced test each year, the language proficiency assessment committee shall determine the appropriate assessment option for each English learner as outlined in Chapter 101, Subchapter AA, of this title (relating to Commissioner's Rules Concerning the Participation of English Language Learners in State Assessments).

(j) Pending parent approval of an English learner's entry into the bilingual education or ESL program recommended by the language proficiency assessment committee, the school district shall place the student in the recommended program. Only English learners with parent approval who are receiving services will be included in the bilingual education allotment.

(k) The language proficiency assessment committee shall monitor the academic progress of each student who has met criteria for exit in accordance with TEC, §29.056(g), for the first two years after reclassification. If the student earns a failing grade in a subject in the foundation curriculum under TEC, §28.002(a)(1), during any grading period in the first two school years after the student is reclassified, the language proficiency assessment committee shall determine, based on the student's second language acquisition needs, whether the student may require intensive instruction or should be reenrolled in a bilingual education or special language program. In accordance with TEC, §29.0561, the language proficiency assessment committee shall review the student's performance and consider:

(1) the total amount of time the student was enrolled in a bilingual education or special language program;

(2) the student's grades each grading period in each subject in the foundation curriculum under TEC, §28.002(a)(1);

(3) the student's performance on each assessment instrument administered under TEC, §39.023(a) or (c);

(4) the number of credits the student has earned toward high school graduation, if applicable; and

(5) any disciplinary actions taken against the student under TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management).

(l) The student's permanent record shall contain documentation of all actions impacting the English learner.

(1) Documentation shall include:

(A) the identification of the student as an English learner;

(B) the designation of the student's level of language proficiency;

(C) the recommendation of program placement;

(D) parental approval of entry or placement into the program;

(E) the dates of entry into, and placement within, the program;

(F) assessment information as outlined in Chapter 101, Subchapter AA, of this title;

(G) additional instructional interventions provided to address the specific language needs of the student;

(H) the date of exit from the program and parental approval;

(I) the results of monitoring for academic success, including students formerly classified as English learners, as required under the TEC, §29.063(c)(4); and

(J) the home language survey.

(2) Current documentation as described in paragraph (1) of this subsection shall be forwarded in the same manner as other student records to another school district in which the student enrolls.

(m) A school district may identify, exit, or place a student in a program without written approval of the student's parent or guardian if:

(1) the student is 18 years of age or has had the disabilities of minority removed;

(2) the parent or legal guardian provides approval through a phone conversation or e-mail that is documented in writing and retained; or

(3) an adult who the school district recognizes as standing in parental relation to the student provides written approval. This may include a foster parent or employee of a state or local governmental agency with temporary possession or control of the student.

§89.1228.Two-Way Dual Language Immersion Program Model Implementation.

(a) Student enrollment in a two-way dual language immersion program model is optional for English proficient students in accordance with §89.1233(a) of this title (relating to Participation of English Proficient Students).

(b) A two-way dual language immersion program model shall fully disclose candidate selection criteria and ensure that access to the program is not based on race, creed, color, religious affiliation, age, or disability.

(c) A school district implementing a two-way dual language immersion program model shall develop a policy on enrollment and continuation for students in this program model. The policy shall address:

(1) eligibility criteria;

(2) program purpose;

(3) the district's commitment to providing equitable access to services for English learners;

(4) grade levels in which the program will be implemented;

(5) support of program goals as stated in §89.1210 of this title (relating to Program Content and Design); and

(6) expectations for students and parents.

(d) A school district implementing a two-way program model shall obtain written parental approval as follows.

(1) For English learners, written parental approval is obtained in accordance with §89.1240 of this title (relating to Parental Authority and Responsibility).

(2) For English proficient students, written parental approval is obtained through a school district-developed process.

§89.1229.General Standards for Recognition of Dual Language Immersion Program Models.

(a) School recognition. A school district may recognize one or more of its schools that implement an exceptional dual language immersion program model if the school meets all of the following criteria.

(1) The school must meet the minimum requirements stated in §89.1227 of this title (relating to Minimum Requirements for Dual Language Immersion Program Model).

(2) The school must receive an acceptable performance rating in the state accountability system.

(3) The school must not be identified for any stage of intervention for the district's bilingual and/or English as a second language program under the performance-based monitoring system.

(b) Student recognition. A student participating in a dual language immersion program model or any other state-approved bilingual or ESL program model may be recognized by the program and its local school district board of trustees by earning a performance acknowledgement in accordance with §74.14 of this title (relating to Performance Acknowledgments).

§89.1235.Facilities.

Bilingual education and English as a second language (ESL) programs shall be located in the public schools of the school district with equitable access to all educational resources rather than in separate facilities. In order to provide the required bilingual education or ESL programs, school districts may concentrate the programs at a limited number of facilities within the school district. Recent immigrant English learners shall not remain enrolled in newcomer centers for longer than two years.

§89.1245.Staffing and Staff Development.

(a) School districts shall take all reasonable affirmative steps to assign appropriately certified teachers to the required bilingual education and English as a second language (ESL) programs in accordance with the Texas Education Code (TEC), §29.061, concerning bilingual education and special language program teachers. School districts that are unable to secure a sufficient number of appropriately certified bilingual education and/or ESL teachers to provide the required programs shall request activation of the appropriate permits in accordance with Chapter 230 of this title (relating to Professional Educator Preparation and Certification).

(b) School districts that are unable to employ a sufficient number of teachers, including part-time teachers, who meet the requirements of subsection (a) of this section for the bilingual education and ESL programs shall apply on or before November 1 for an exception to the bilingual education program as provided in §89.1207(a) of this title (relating to Bilingual Education Exceptions and English as a Second Language Waivers) or a waiver of the certification requirements in the ESL program as provided in §89.1207(b) of this title as needed.

(c) Teachers assigned to the bilingual education program and/or ESL program may receive salary supplements as authorized by the TEC, §42.153.

(d) School districts may compensate teachers and aides assigned to bilingual education and ESL programs for participation in professional development designed to increase their skills or lead to bilingual education or ESL certification.

(e) The commissioner of education shall encourage school districts to cooperate with colleges and universities to provide training for teachers assigned to the bilingual education and/or ESL programs.

(f) The Texas Education Agency shall develop, in collaboration with education service centers, resources for implementing bilingual education and ESL training programs. The materials shall provide a framework for:

(1) developmentally appropriate bilingual education programs for early childhood through the elementary grades;

(2) affectively, linguistically, and cognitively appropriate instruction in bilingual education and ESL programs in accordance with §89.1210(b)(1)-(3) of this title (relating to Program Content and Design); and

(3) developmentally appropriate programs for English learners identified as gifted and talented and English learners with disabilities.

§89.1265.Evaluation.

(a) All school districts required to conduct a bilingual education or English as a second language (ESL) program shall conduct an annual evaluation in accordance with Texas Education Code (TEC), §29.053, collecting a full range of data to determine program effectiveness to ensure student academic success. The annual evaluation report shall be presented to the board of trustees before November 1 of each year and the report shall be retained at the school district level in accordance with TEC, §29.062.

(b) Annual school district reports of educational performance shall reflect:

(1) the academic progress in the language(s) of instruction for English learners;

(2) the extent to which English learners are becoming proficient in English;

(3) the number of students who have been exited from the bilingual education and ESL programs; and

(4) the number of teachers and aides trained and the frequency, scope, and results of the professional development in approaches and strategies that support second language acquisition.

(c) In addition, for those school districts that filed in the previous year and/or will be filing a bilingual education exception and/or ESL waiver in the current year, the annual district report of educational performance shall also reflect:

(1) the number of teachers for whom an exception or waiver was/is being filed;

(2) the number of teachers for whom an exception or waiver was filed in the previous year who successfully obtained certification; and

(3) the frequency and scope of a comprehensive professional development plan, implemented as required under §89.1207 of this title (relating to Bilingual Education Exceptions and English as a Second Language Waivers), and results of such plan if an exception and/or waiver was filed in the previous school year.

(d) School districts shall report to parents the progress of their child in acquiring English as a result of participation in the program offered to English learners.

(e) Each school year, the principal of each school campus, with the assistance of the campus level committee, shall develop, review, and revise the campus improvement plan described in the TEC, §11.253, for the purpose of improving student performance for English learners.

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 June 25, 2018.

TRD-201802820

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: July 15, 2018

Proposal publication date: April 20, 2018

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


19 TAC §89.1267, §89.1269

STATUTORY AUTHORITY. The repeals are adopted under Texas Education Code (TEC), §29.051, which establishes the policy of the state to ensure equal educational opportunity to students with limited English proficiency through the provision of bilingual education and special language programs in the public schools and supplemental financial assistance to help school districts meet the extra costs of the programs; TEC, §29.053, which outlines requirements for reporting the number of students with limited English proficiency in school districts and explains the criteria for determining whether a district is required to provide bilingual education or special language programs at the elementary and secondary school levels; TEC, §29.054, which describes the application process and documentation requirements for school districts filing a bilingual education exception; TEC, §29.055, which establishes basic requirements in the content and methods of instruction for the state's bilingual education and special language programs; TEC, §29.056, which authorizes the state to establish standardized criteria for the identification, assessment, and classification of students of limited English proficiency and describes required procedures for the identification, placement, and exiting of students with limited English proficiency; TEC, §29.0561, which provides information regarding requirements for the reevaluation and monitoring of students with limited English proficiency for two years after program exit; TEC, §29.057, which requires that bilingual education and special language programs be located in the regular public schools rather than separate facilities, that students with limited English proficiency are placed in classes with other students of similar age and level of educational attainment, and that a maximum student-teacher ratio be set by the state that reflects student needs; TEC, §29.058, which authorizes districts to enroll students who do not have limited English proficiency in bilingual education programs, with a maximum enrollment of such students set at 40% of the total number of students enrolled in the program; TEC, §29.059, which allows school districts flexibility to join other districts to provide services for students with limited English proficiency; TEC, §29.060, which describes requirements for offering summer school programs for students with limited English proficiency eligible to enter kindergarten or Grade 1 in the subsequent school year; TEC, §29.061, which describes teacher certification requirements for educators serving students with limited English proficiency in bilingual education and special language programs; TEC, §29.062, which authorizes the state to evaluate the effectiveness of programs under TEC, Subchapter B; TEC, §29.063, which explains the roles and responsibilities of the language proficiency assessment committee and describes the composition of its membership; TEC, §29.064, which allows for a parent appeals process; and TEC, §29.066, which provides information regarding a school district's coding of students participating in bilingual education and special language programs through the Texas Student Data System Public Education Information Management System.

CROSS REFERENCE TO STATUTE. The repeals implement Texas Education Code, §§29.051, 29.053-29.056, 29.0561, 29.057-29.063, and 29.066.

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 June 25, 2018.

TRD-201802822

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: July 15, 2018

Proposal publication date: April 20, 2018

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