18_06 Adopted Revisions to 19 TAC Chapter 89, Subchapter BB

Commissioner's Rules

Adopted Revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Language Learners

Attachments:
I. Statutory Citations (PDF)
II. Text of Adopted Revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Language Learners (PDF)
III. Summary of Public Comments and Agency Responses

SUMMARY: The rule action presented in this item was filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item presents adopted revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Language Learners. 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.

STATUTORY AUTHORITY: Texas Education Code (TEC), §§29.051, 29.053-29.056, 29.0561, 29.057-29.063, and 29.066.

TEC, §29.051, 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, 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, describes the application process and documentation requirements for school districts filing a bilingual education exception.

TEC, §29.055, establishes basic requirements in the content and methods of instruction for the state's bilingual education and special language programs.

TEC, §29.056, 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, provides information regarding requirements for the reevaluation and monitoring of students with limited English proficiency for two years after program exit.

TEC, §29.057, 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, 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, allows school districts flexibility to join other districts to provide services for students with limited English proficiency.

TEC, §29.060, 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, describes teacher certification requirements for educators serving students with limited English proficiency in bilingual education and special language programs.

TEC, §29.062, authorizes the state to evaluate the effectiveness of programs under TEC, Subchapter B.

TEC, §29.063, explains the roles and responsibilities of the language proficiency assessment committee and describes the composition of its membership.

TEC, §29.064, allows for a parent appeals process.

TEC, §29.066, 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 (TSDS PEIMS).

EFFECTIVE DATE: Revisions to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1225, 89.1227-89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, 89.1265, 89.1267, and 89.1269 become effective July 15, 2018. New §89.1226 becomes effective July 1, 2019.

BACKGROUND INFORMATION AND JUSTIFICATION: In accordance with the 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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

Section 89.1233, Participation of English Proficient Students, was amended to update terminology and clarify participation enrollment limitations in accordance with statute. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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. No changes were made to the section at adoption.

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

FISCAL IMPACT: The Texas Education Agency (TEA) has determined that there are no fiscal implications to persons or entities required to comply with the revisions. In addition, there is no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The adopted revisions do not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, are not subject to Texas Government Code, §2001.0045.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not expand, limit, or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC AND STUDENT BENEFIT: The adopted revisions further clarify the rules for serving English learners.

PROCEDURAL AND REPORTING IMPLICATIONS: The adopted revisions have no new reporting implications. However, the revisions include new procedural requirements to codify current agency practice. Section 89.1215(d) requires receiving districts to make and document multiple attempts to obtain the student's home language survey from the sending district. Section 89.1265 requires the evaluation report to be presented to the school board.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The adopted rule action includes new locally maintained paperwork requirements to codify current agency practice. Section 89.1207(a)(2) and (b)(2) requires school districts submitting a bilingual education exception or ESL exception to maintain written records of all documents supporting the submission, including a list of specific documents. Section 89.1215(d) requires receiving districts to make and document multiple attempts to obtain the student's home language survey from the sending district. Section 89.1220(m)(2) allows districts to obtain parental approval through a phone conversation or email if the phone conversation or email is documented and retained.

PUBLIC COMMENTS: The public comment period on the proposal began April 20, 2018, and ended May 21, 2018. Attachment III reflects a summary of the public comments received and corresponding agency responses.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: None.

Staff Members Responsible:
Justin Porter, Executive Director, Special Populations
Barbara Kennedy, Director of English Learner Support, Special Populations
Susie Coultress, Director of Bilingual/ESL/Title III, Part A, Special Populations