18_06 Comments on Proposed Revisions to 19 TAC Chapter 89, Subchapter BB
ATTACHMENT III
Summary of Public Comments and Agency Responses Related to Proposed Revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Language Learners
Comment. Three administrators stated that it is unclear in proposed §89.1210(c)(3) and (4) that a teacher certified in English as a Second Language (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 Language Proficiency Assessment Committee (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_Edu….
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 the Every Child Succeeds Act (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 discernable 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 (LEP) 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.
Comment. One administrator expressed test validity concerns regarding the requirement that English learners meet passing standard on either a norm-referenced standardized achievement test or a State of Texas Assessments of Academic Readiness (STAAR®) assessment as one of the criteria to be reclassified as English proficient.
Agency Response. The agency disagrees. Criteria for English learner reclassification are established in TEC, §29.056(g)(1). The agency has maintained the language as proposed.
Comment. One administrator asked why the wording in §89.1228(b) changed from "must" to "shall" when describing disclosure requirements regarding candidate selection criteria for participants in two-way dual language programs.
Agency Response. The agency provides the following clarification. The term "shall" has the same meaning as "must" and is standard legal language. The agency has maintained the language as proposed.
Comment. One administrator expressed concern regarding recognition of students participating in dual language immersion programs in §89.1229(b), stating that English learners deserve recognition for their efforts and accomplishments across the board, regardless of the program model.
Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1229(b) has been modified at adoption to read, "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)."
Comment. One administrator requested that a definition be provided for "equitable access" as used in §89.1235 to make sure districts do not cut corners.
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).
Summary of Public Comments and Agency Responses Related to Proposed Revisions to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter BB, Commissioner's Rules Concerning State Plan for Educating English Language Learners
Comment. Three administrators stated that it is unclear in proposed §89.1210(c)(3) and (4) that a teacher certified in English as a Second Language (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 Language Proficiency Assessment Committee (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_Edu….
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 the Every Child Succeeds Act (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 discernable 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 (LEP) 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.
Comment. One administrator expressed test validity concerns regarding the requirement that English learners meet passing standard on either a norm-referenced standardized achievement test or a State of Texas Assessments of Academic Readiness (STAAR®) assessment as one of the criteria to be reclassified as English proficient.
Agency Response. The agency disagrees. Criteria for English learner reclassification are established in TEC, §29.056(g)(1). The agency has maintained the language as proposed.
Comment. One administrator asked why the wording in §89.1228(b) changed from "must" to "shall" when describing disclosure requirements regarding candidate selection criteria for participants in two-way dual language programs.
Agency Response. The agency provides the following clarification. The term "shall" has the same meaning as "must" and is standard legal language. The agency has maintained the language as proposed.
Comment. One administrator expressed concern regarding recognition of students participating in dual language immersion programs in §89.1229(b), stating that English learners deserve recognition for their efforts and accomplishments across the board, regardless of the program model.
Agency Response. The agency agrees that additional clarification is necessary. In response to this comment, §89.1229(b) has been modified at adoption to read, "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)."
Comment. One administrator requested that a definition be provided for "equitable access" as used in §89.1235 to make sure districts do not cut corners.
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).