TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS

SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES

The Texas Education Agency (TEA) adopts amendments to §§89.1050, 89.1055, and 89.1195, concerning special education services. The amendments to §89.1055 and §89.1195 are adopted without changes to the proposed text as published in the November 25, 2016, issue of the Texas Register (41 TexReg 9205) and will not be republished. The amendment to §89.1050 is adopted with changes to the proposed text as published in the November 25, 2016, issue of the Texas Register (41 TexReg 9205). The adopted amendments modify procedures related to students' individualized education programs (IEPs), the content of students' IEPs, and special education complaints.

REASONED JUSTIFICATION. Senate Bill (SB) 1259, 84th Texas Legislature, Regular Session, 2015, amended special education requirements in the TEC, §29.005, Individualized Education Program. The changes specify that if a committee established under TEC, §29.005, is required to include a regular education teacher, the regular education teacher included must, to the extent practicable, be a teacher who is responsible for implementing a portion of the child's IEP. In addition, SB 1259 required that the written statement of the IEP document the decisions of the committee with respect to issues discussed at each committee meeting and include the date of the meeting; the name, position, and signature of each member participating in the meeting; and an indication of whether the child's parents, the adult student, if applicable, and the administrator agreed or disagreed with the decisions of the committee. Finally, SB 1259 added language to specify that each member of the committee who disagrees with the IEP developed by the committee is entitled to include a statement of disagreement in the written statement of the program.

The adopted amendments to 19 TAC Chapter 89, Subchapter AA, Division 2, implement the requirements of TEC, §29.005, as follows.

Section 89.1050, The Admission, Review, and Dismissal (ARD) Committee, clarifies the procedures for when a member of a student's ARD committee disagrees with the proposed IEP. In response to public comments, §89.1050(c)(1)(B) is modified at adoption to add language that reads, "....who must, to the extent practicable, be a teacher who is responsible for implementing a portion of the student's IEP."

Section 89.1055, Content of the Individualized Education Program (IEP), includes the new content requirements for a student's IEP as added by SB 1259.

The adopted amendment to 19 TAC Chapter 89, Subchapter AA, Division 7, provides clarity and updates the rule to comply with the requirements of the Individuals with Disabilities Education Act. Specifically, §89.1195, Special Education Complaint Resolution, clarifies TEA's receipt of a special education complaint.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began November 25, 2016, and ended December 27, 2016, and included public hearings that were held on Thursday, December 8, 2016, and Friday, December 9, 2016. Following is a summary of public comments received, including those received at the public hearings, and corresponding agency responses.

Comment: The Texas State Teachers Association (TSTA), Disability Rights Texas (DRTx), and a parent who is a member of the Coalition of Texans With Disabilities and of the Down Syndrome Association of Central Texas recommended that 19 TAC §89.1050(c)(1)(B) be amended to include language requiring the regular education teacher who is a member of a student's admission, review, and dismissal (ARD) committee be, to the extent practicable, a teacher who is responsible for implementing a portion of the student's individualized education program (IEP).

Agency Response: The agency agrees and has modified §89.1050(c)(1)(B) at adoption.

Comment: DRTx expressed agreement that the proposed amendment to §89.1055 is appropriate.

Agency Response: The agency agrees. However, in response to another comment, the agency has modified §89.1050(c)(1)(B) at adoption.

Comment: TSTA and DRTx recommended that §89.1075(d) be amended to include language requiring school districts to develop a process for teachers who instruct a student with a disability to provide input into the development of the student's IEP.

Agency Response: This comment is outside the scope of the proposed rulemaking. However, the recommended change is included as a requirement in the Texas Education Code, §29.001(11)(B), to which school districts and charter schools must adhere.

Comment: DRTx commented that the proposed amendment to §89.1195 is unwarranted and that it is contrary to 34 Code of Federal Regulations (CFR), §300.152, which establishes a 60-calendar day timeline for resolution of a special education complaint after the state education agency's (SEA's) receipt of a complaint. DRTx explained that 34 CFR, §300.11, defines "day" within the Individuals with Disabilities Education Act to mean calendar day unless otherwise specified.

Agency Response: The agency disagrees. 34 CFR, §300.151, requires the agency to inform stakeholders of its procedures related to the state complaints process. Therefore, the agency has determined that informing the public of when the 60-calendar day timeline for resolution of a special education complaint begins is important and warrants the inclusion of the clarification in rule.

As to the comment that the proposed amendment contradicts federal regulations, 34 CFR, §300.152(a), reads, "Each SEA must include in its complaint procedures a time limit of 60 days after a complaint is filed under §300.153....." In its Questions and Answers on IDEA PART B Dispute Resolution Procedures, revised July 2013, the Office of Special Education and Rehabilitative Services (OSERS) explains that SEAs have "some discretion in determining when a complaint is considered received.... For example, if a State complaint is filed electronically on a day that is not considered a business day (e.g., the weekend), the State could consider the complaint received on the date the complaint is filed or on the next business day."

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

19 TAC §89.1050, §89.1055

STATUTORY AUTHORITY. The amendments are adopted under the Texas Education Code (TEC), §29.001, which requires the Texas Education Agency to develop and modify as necessary a statewide plan that includes rules for the administration and funding of the delivery of services to children with disabilities in the state of Texas so that a free appropriate public education is available to all of those children between the ages of 3 and 21; and TEC, §29.005, as amended by Senate Bill 1259, 84th Texas Legislature, Regular Session, 2015, which requires a school district, before a child is enrolled in a special education program, to establish a committee composed of the persons required under 20 U.S.C. §1414(d), to develop the child's individualized education program (IEP) and establishes procedures for the committee and required components of the IEP.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code, §29.001 and §29.005, as amended by Senate Bill 1259, 84th Texas Legislature, Regular Session, 2015.

§89.1050.The Admission, Review, and Dismissal Committee.

(a) Each school district must establish an admission, review, and dismissal (ARD) committee for each eligible student with a disability and for each student for whom a full individual and initial evaluation is conducted pursuant to §89.1011 of this title (relating to Full Individual and Initial Evaluation). The ARD committee is the individualized education program (IEP) team defined in federal law and regulations, including, specifically, 34 Code of Federal Regulations (CFR), §300.321. The school district is responsible for all of the functions for which the IEP team is responsible under federal law and regulations and for which the ARD committee is responsible under state law, including the following:

(1) 34 CFR, §§300.320-300.325, and Texas Education Code (TEC), §29.005 (individualized education programs);

(2) 34 CFR, §§300.145-300.147 (relating to placement of eligible students in private schools by a school district);

(3) 34 CFR, §§300.132, 300.138, and 300.139 (relating to the development and implementation of service plans for eligible students placed by parents in private school who have been designated to receive special education and related services);

(4) 34 CFR, §300.530 and §300.531, and TEC, §37.004 (disciplinary placement of students with disabilities);

(5) 34 CFR, §§300.302-300.306 (relating to evaluations, re-evaluations, and determination of eligibility);

(6) 34 CFR, §§300.114-300.117 (relating to least restrictive environment);

(7) TEC, §28.006 (Reading Diagnosis);

(8) TEC, §28.0211 (Satisfactory Performance on Assessment Instruments Required; Accelerated Instruction);

(9) TEC, §28.0212 (Junior High or Middle School Personal Graduation Plan);

(10) TEC, §28.0213 (Intensive Program of Instruction);

(11) TEC, Chapter 29, Subchapter I (Programs for Students Who Are Deaf or Hard of Hearing);

(12) TEC, §30.002 (Education for Children with Visual Impairments);

(13) TEC, §30.003 (Support of Students Enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf);

(14) TEC, §33.081 (Extracurricular Activities);

(15) TEC, Chapter 39, Subchapter B (Assessment of Academic Skills); and

(16) TEC, §42.151 (Special Education).

(b) For a student from birth through two years of age with visual and/or auditory impairments, an individualized family services plan (IFSP) meeting must be held in place of an ARD committee meeting in accordance with 34 CFR, §§300.320-300.324, and the memorandum of understanding between the Texas Education Agency and the Department of Assistive and Rehabilitative Services. For students three years of age and older, school districts must develop an IEP.

(c) ARD committee membership.

(1) ARD committees must include the following:

(A) the parents of the student;

(B) not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education environment) who must, to the extent practicable, be a teacher who is responsible for implementing a portion of the student's IEP;

(C) not less than one special education teacher of the student, or where appropriate, not less than one special education provider of the student;

(D) a representative of the school district who:

(i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of students with disabilities;

(ii) is knowledgeable about the general education curriculum; and

(iii) is knowledgeable about the availability of resources of the school district;

(E) an individual who can interpret the instructional implications of evaluation results, who may be a member of the committee described in subparagraphs (B)-(D) and (F) of this paragraph;

(F) at the discretion of the parent or the school district, other individuals who have knowledge or special expertise regarding the student, including related services personnel, as appropriate;

(G) whenever appropriate, the student with a disability;

(H) to the extent appropriate, with the consent of the parents or a student who has reached the age of majority, a representative of any participating agency that is likely to be responsible for providing or paying for transition services;

(I) a representative from career and technical education (CTE), preferably the teacher, when considering initial or continued placement of a student in CTE; and

(J) a professional staff member who is on the language proficiency assessment committee who may be a member of the committee described in subparagraphs (B) and (C) of this paragraph, if the student is identified as an English language learner.

(2) The special education teacher or special education provider that participates in the ARD committee meeting must be appropriately certified or licensed as required by 34 CFR, §300.18 and §300.156.

(3) If the student is:

(A) a student with a suspected or documented visual impairment, the ARD committee must include a teacher who is certified in the education of students with visual impairments;

(B) a student with a suspected or documented auditory impairment, the ARD committee must include a teacher who is certified in the education of students with auditory impairments; or

(C) a student with suspected or documented deaf-blindness, the ARD committee must include a teacher who is certified in the education of students with visual impairments and a teacher who is certified in the education of students with auditory impairments.

(4) An ARD committee member is not required to attend an ARD committee meeting if the conditions of either 34 CFR, §300.321(e)(1), regarding attendance, or 34 CFR, §300.321(e)(2), regarding excusal, have been met.

(d) The school district must take steps to ensure that one or both parents are present at each ARD committee meeting or are afforded the opportunity to participate, including notifying the parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed upon time and place. Additionally, a school district must allow parents who cannot attend an ARD committee meeting to participate in the meeting through other methods such as through telephone calls or video conferencing. The school district must provide the parents with written notice of the ARD committee meeting that meets the requirements in 34 CFR, §300.322, at least five school days before the meeting unless the parents agree to a shorter timeframe.

(e) Upon receipt of a written request for an ARD committee meeting from a parent, the school district must:

(1) schedule and convene a meeting in accordance with the procedures in subsection (d) of this section; or

(2) within five school days, provide the parent with written notice explaining why the district refuses to convene a meeting.

(f) If the parent is unable to speak English, the school district must provide the parent with a written notice required under subsection (d) or (e)(2) of this section in the parent's native language, unless it is clearly not feasible to do so. If the parent's native language is not a written language, the school district must take steps to ensure that the notice is translated orally or by other means to the parent in his or her native language or other mode of communication so that the parent understands the content of the notice.

(g) All members of the ARD committee must have the opportunity to participate in a collaborative manner in developing the IEP. A decision of the ARD committee concerning required elements of the IEP must be made by mutual agreement if possible. The ARD committee may agree to an annual IEP or an IEP of shorter duration.

(1) When mutual agreement about all required elements of the IEP is not achieved, the parent who disagrees must be offered a single opportunity to recess and reconvene the ARD committee meeting. The period of time for reconvening the ARD committee meeting must not exceed ten school days, unless the parties mutually agree otherwise. The ARD committee must schedule the reconvened meeting at a mutually agreed upon time and place. The opportunity to recess and reconvene is not required when the student's presence on the campus presents a danger of physical harm to the student or others or when the student has committed an expellable offense or an offense that may lead to a placement in a disciplinary alternative education program. The requirements of this subsection do not prohibit the ARD committee from recessing an ARD committee meeting for reasons other than the failure to reach mutual agreement about all required elements of an IEP.

(2) During the recess, the ARD committee members must consider alternatives, gather additional data, prepare further documentation, and/or obtain additional resource persons who may assist in enabling the ARD committee to reach mutual agreement.

(3) If a recess is implemented as provided in paragraph (1) of this subsection and the ARD committee still cannot reach mutual agreement, the school district must implement the IEP that it has determined to be appropriate for the student.

(4) Each member of the ARD committee who disagrees with the IEP developed by the ARD committee is entitled to include a statement of disagreement in the IEP.

(h) Whenever a school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education to the student, the school district must provide prior written notice as required in 34 CFR, §300.503, including providing the notice in the parent's native language or other mode of communication. This notice must be provided to the parent at least five school days before the school district proposes or refuses the action unless the parent agrees to a shorter timeframe.

(i) If the student's parent is unable to speak English and the parent's native language is Spanish, the school district must provide a written copy or audio recording of the student's IEP translated into Spanish. If the student's parent is unable to speak English and the parent's native language is a language other than Spanish, the school district must make a good faith effort to provide a written copy or audio recording of the student's IEP translated into the parent's native language.

(1) For purposes of this subsection, a written copy of the student's IEP translated into Spanish or the parent's native language means that all of the text in the student's IEP in English is accurately translated into the target language in written form. The IEP translated into the target language must be a comparable rendition of the IEP in English and not a partial translation or summary of the IEP in English.

(2) For purposes of this subsection, an audio recording of the student's IEP translated into Spanish or the parent's native language means that all of the content in the student's IEP in English is orally translated into the target language and recorded with an audio device. A school district is not prohibited from providing the parent with an audio recording of an ARD committee meeting at which the parent was assisted by an interpreter as long as the audio recording provided to the parent contains an oral translation into the target language of all of the content in the student's IEP in English.

(3) If a parent's native language is not a written language, the school district must take steps to ensure that the student's IEP is translated orally or by other means to the parent in his or her native language or other mode of communication.

(4) Under 34 CFR, §300.322(f), a school district must give a parent a written copy of the student's IEP at no cost to the parent. A school district meets this requirement by providing a parent with a written copy of the student's IEP in English or by providing a parent with a written translation of the student's IEP in the parent's native language in accordance with paragraph (1) of this subsection.

(j) A school district must comply with the following for a student who is newly enrolled in the school district.

(1) When a student transfers to a new school district within the state in the same school year and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the new school district must meet the requirements of 34 CFR, §300.323(e), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(e)(1) or (2), is 30 school days from the date the student is verified as being a student eligible for special education services.

(2) When a student transfers from a school district in another state in the same school year and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the new school district must meet the requirements of 34 CFR, §300.323(f), regarding the provision of special education services. If the new school district determines that an evaluation is necessary, the evaluation is considered a full individual and initial evaluation and must be completed within the timelines established by §89.1011(c) and (e) of this title. The timeline for completing the requirements in 34 CFR, §300.323(f)(2), if appropriate, is 30 calendar days from the date of the completion of the evaluation report. If the school district determines that an evaluation is not necessary, the timeline for completing the requirements outlined in 34 CFR, §300.323(f)(2), is 30 school days from the date the student is verified as being a student eligible for special education services.

(3) In accordance with TEC, §25.002, and 34 CFR, §300.323(g), the school district in which the student was previously enrolled must furnish the new school district with a copy of the student's records, including the student's special education records, not later than the 10th working day after the date a request for the information is received by the previous school district.

(k) All disciplinary actions regarding students with disabilities must be determined in accordance with 34 CFR, §§300.101(a) and 300.530-300.536; TEC, Chapter 37, Subchapter A; and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out).

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 March 2, 2017.

TRD-201700831

Christina De La Fuente-Valadez

Director, Rulemaking Unit

Texas Education Agency

Effective date: March 22, 2017

Proposal publication date: November 25, 2016

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


DIVISION 7. DISPUTE RESOLUTION

19 TAC §89.1195

STATUTORY AUTHORITY. The amendment is adopted under 34 Code of Federal Regulations, §300.152, which outlines time limits and minimum procedures that must be included in a state education agency's complaint procedures.

CROSS REFERENCE TO STATUTE. The amendment implements 34 Code of Federal Regulations, §300.152.

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 March 2, 2017.

TRD-201700832

Christina De La Fuente-Valadez

Director, Rulemaking Unit

Texas Education Agency

Effective date: March 22, 2017

Proposal publication date: November 25, 2016

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