September 2021 Committee on Instruction Item 3

Proposed Repeal of 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter D, Special Education Services and Settings, §89.61, Contracting for Residential Educational Placements for Students with Disabilities, and §89.63, Instructional Arrangements and Settings
(Second Reading and Final Adoption)

September 3, 2021

COMMITTEE ON INSTRUCTION: ACTION
STATE BOARD OF EDUCATION: CONSENT

SUMMARY: This item presents for second reading and final adoption the proposed repeal of 19 Texas Administrative Code (TAC) Chapter 89, Adaptations for Special Populations, Subchapter D, Special Education Services and Settings, §89.61, Contracting for Residential Educational Placements for Students with Disabilities, and §89.63, Instructional Arrangements and Settings. The proposed repeals would implement House Bill (HB) 3, 86th Texas Legislature, 2019, which removed the State Board of Education's (SBOE's) rulemaking authority related to instructional arrangements in special education. No changes are recommended since approved for first reading.

STATUTORY AUTHORITY: Texas Education Code (TEC), §48.102(e) and (g), as amended and redesignated by HB 3, 86th Texas Legislature, 2019.

TEC, §48.102(e), as amended and redesignated by HB 3, 86th Texas Legislature, 2019, requires the commissioner of education by rule to prescribe the qualifications and instructional arrangements that must be met in order to be funded as a particular instructional arrangement under TEC, §48.102.

TEC, §48.102(g), as amended and redesignated by HB 3, 86th Texas Legislature, 2019, requires the commissioner of education to adopt rules governing contracts for residential placement of special education students.

The full text of statutory citations can be found in the statutory authority section of this agenda.

EFFECTIVE DATE: The proposed effective date of the proposed repeals is 20 days after filing as adopted with the Texas Register. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2022-2023 school year. The earlier effective date will remove rules whose statutory authority no longer exists as soon as possible.

PREVIOUS BOARD ACTION: The SBOE approved for first reading and filing authorization the proposed repeal of §89.61 and §89.63 at the June 2021 SBOE meeting.

BACKGROUND INFORMATION AND JUSTIFICATION: Section 89.61 allows a school district to contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE). Section 89.63 allows a school district to provide services through special education personnel to students with disabilities in order to meet the special needs of those students, defines the regular school day as the period of time determined appropriate by the ARD committee, defines special education instructional arrangements/settings, and requires that the instructional arrangements/settings be based on the individual needs and individualized education programs of eligible students receiving special education.

HB 3, 86th Texas Legislature, 2019, redesignated TEC, §42.151, as TEC, §48.102, and amended the statute to transfer rulemaking authority related to residential placements and instructional arrangements from the SBOE to the commissioner of education. New 19 TAC §89.1005, Instructional Arrangements and Settings, and §89.1092, Contracting for Residential Educational Placements for Students with Disabilities, were adopted under the commissioner's rulemaking authority effective March 14, 2021. The repeal of §89.61 and §89.63 is necessary as statutory authority for the rules no longer exists.

The attachment to this item reflects the text of proposed repeal of §89.61 and §89.63 for consideration by the SBOE for second reading and final adoption. No changes are recommended since approved for first reading.

FISCAL IMPACT: No changes have been made to this section since published as proposed.

The Texas Education Agency (TEA) has determined that there are no additional costs to state or local government required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT: No changes have been made to this section since published as proposed.

The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: No changes have been made to this section since published as proposed.

The proposal has 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.

COST INCREASE TO REGULATED PERSONS: No changes have been made to this section since published as proposed.

The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.004.

TAKINGS IMPACT ASSESSMENT: No changes have been made to this section since published as proposed.

The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

GOVERNMENT GROWTH IMPACT: No changes have been made to this section since published as proposed.

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 repeal existing regulations by removing §89.61 and §89.63 since the statutory authority for the rules no longer exists.

The proposed rulemaking 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 or limit 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 BENEFIT AND COST TO PERSONS: No changes have been made to this section since published as proposed.

The proposal would remove rules whose statutory authority no longer exists. There is no anticipated economic cost to persons who are required to comply with the proposal.

DATA AND REPORTING IMPACT: No changes have been made to this section since published as proposed.

The proposal would have no data and reporting impact.

PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: No changes have been made to this section since published as proposed.

TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.

PUBLIC COMMENTS: Following the June 2021 SBOE meeting, notice of the proposed repeal of §89.61 and §89.63 was filed with the Texas Register, initiating the public comment period. The public comment period began July 23, 2021, and ended at 5:00 p.m. on August 27, 2021. No comments had been received at the time this item was prepared. A summary of public comments received will be provided to the SBOE during the September 2021 meeting. The SBOE will take registered oral and written comments on the proposal at the appropriate committee meeting in September 2021 in accordance with the SBOE board operating policies and procedures.

MOTION TO BE CONSIDERED: The State Board of Education:

Approve for second reading and final adoption the proposed repeal of 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter D, Special Education Services and Settings, §89.61, Contracting for Residential Educational Placements for Students with Disabilities, and §89.63, Instructional Arrangements and Settings; and

Make an affirmative finding that immediate adoption of the proposed repeal of 19 TAC
Chapter 89, Adaptations for Special Populations, Subchapter D, Special Education Services and Settings, §89.61, Contracting for Residential Educational Placements for Students with Disabilities, and §89.63, Instructional Arrangements and Settings, is necessary and shall have an effective date of 20 days after filing as adopted with the Texas Register. (Per TEC, §7.102(f), a vote of two-thirds of the members of the board is necessary for an earlier effective date.)

Staff Members Responsible:
Justin Porter, Director, Special Education Programs
Tebbi Bowman, Manager, Dispute Resolution and Strategic Supports

Attachment:
Text of Proposed Repeal of 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter D, Special Education Services and Settings, §89.61, Contracting for Residential Educational Placements for Students with Disabilities, and §89.63, Instructional Arrangements and Settings