PART 2. TEXAS EDUCATION AGENCY
CHAPTER 61. SCHOOL DISTRICTS
SUBCHAPTER BB. COMMISSIONER'S RULES ON REPORTING REQUIREMENTS
The Texas Education Agency (TEA) adopts an amendment to §61.1028, concerning bus accident reporting. The amendment is adopted without changes to the proposed text as published in the May 17, 2024 issue of the Texas Register (49 TexReg 3463) and will not be republished. The adopted amendment more closely aligns existing definitions with statute and, in accordance with House Bill (HB) 2190, 88th Texas Legislature, Regular Session, 2023, changes the word "accident" to "collision" throughout the rule.
REASONED JUSTIFICATION: Section 61.1028 requires that school districts and open-enrollment charter schools report accidents in which the district's or charter school's buses are involved, in accordance with Texas Education Code (TEC), §34.015.
HB 2190, 88th Texas Legislature, Regular Session, 2023, modified TEC, §34.015, by updating the term "accident" to "collision." The adopted amendment to §61.1028 implements HB 2190 by using the term "collision" throughout the rule.
In addition, the adopted amendment to §61.1028(a) redefines the term "motor bus" in alignment with definitions in both TEC, §34.003, and Texas Transportation Code, §502.001.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 17, 2024, and ended June 17, 2024. No public comments were received.
STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code, §34.015, as amended by House Bill 2190, 88th Texas Legislature, Regular Session, 2023, which requires school districts to annually report to the Texas Education Agency the number of collisions in which the district's buses are involved. The agency is required to adopt rules determining the information to be reported.
CROSS REFERENCE TO STATUTE. Texas Education Code, §34.015, as amended by House Bill 2190, 88th Texas Legislature, Regular Session, 2023.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 1, 2024.
TRD-202403547
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 21, 2024
Proposal publication date: May 17, 2024
For further information, please call: (512) 475-1497
The Texas Education Agency (TEA) adopts amendments to §§89.1001, 89.1005, 89.1075, 89.1076, 89.1085, 89.1090, 89.1092, and 89.1094, concerning special education general provisions and clarification of provisions in federal regulations and state law. Sections 89.1001, 89.1005, 89.1090, 89.1092, and 89.1094 are adopted with changes to the proposed text as published in the May 3, 2024 issue of the Texas Register (49 TexReg 2910) and will be republished. Sections 89.1075, 89.1076, and 89.1085 are adopted without changes to the proposed text as published in the May 3, 2024 issue of the Texas Register (49 TexReg 2910) and will not be republished. The adopted amendments clarify current program practices and requirements, including clarifying existing statutory obligations for school districts to extend their Child Find activities to residential facilities when those facilities are located in the district's boundaries; reflect the qualifications that instructional arrangements and settings listed in Texas Education Code (TEC), §48.102, must meet in order to be funded through the state special education allotment; add an existing federal requirement for school districts to develop policies and procedures that implement the established state policies and procedures and an existing statutory requirement reminding transition and employment designees to complete required training; specify interventions and sanctions that the Texas Education Agency (TEA) may, or is required to, implement under state and federal law when noncompliance is identified; clarify when a school district or an open-enrollment charter school is considered the resident school district for purposes of §89.1085 and §89.1090 and referrals to the Texas School for the Blind and Visually Impaired (TSBVI) and the Texas School for the Deaf (TSD); address transportation to and from TSBVI and TSD when students are expected to leave the residential campus setting; provide clarity and align with current expectations and nonpublic residential placement guidance; and clarify the phrases "off-campus program" and "off-home campus."
REASONED JUSTIFICATION: Section 89.1001 references the scope and applicability of commissioner rules associated with special education and related services. The adopted amendment to subsection (a) aligns with current terminology and practices of federal law and adds a reference to the State Board for Educator Certification.
The adopted amendment to §89.1001(c) clarifies existing statutory obligations for school districts to extend their Child Find activities to residential facilities when those facilities are located in the district's boundaries. Based on public comment, subsection (c) has been modified at adoption to remove specific reference to the Texas Juvenile Justice Department and Texas Department of Criminal Justice and to clarify that educational services are special education and related services.
Section 89.1005 reflects the qualifications that instructional arrangements and settings listed in TEC, §48.102, must meet in order to be funded through the state special education allotment.
Adopted new §89.1005(a) identifies definitions for terms used in the rule to provide clarity.
The adopted amendment to re-lettered §89.1005(c) aligns with the wording in §89.1075, which is referenced in the subsection. At adoption, subsection (c) was modified to correct a technical error that cross referenced subsection (e) rather than subsection (f) and to clarify that modifications to an instructional day can only be made by a student's admission, review, and dismissal (ARD) committee when determined necessary for the child.
Adopted new §89.1005(d) clarifies the alignment between the rule and the Student Attendance Accounting Handbook adopted by reference in 19 TAC §129.1025.
Re-lettered §89.1005(e) has been amended to revise the descriptions of the instructional arrangements/settings listed in the rule. Following is a summary of the adopted changes to those descriptions.
Terminology in the mainstream description is updated to the term "general education," which is more commonly used than "regular education." A statement is also added that only monitoring a student's progress does not equate to a special education service.
The homebound description is revised to adjust for more current circumstances in which homebound instruction might be required, and clarification is added about the instances when children ages three through five could be classified under this setting. Information about serving infants and toddlers who have a visual impairment (VI), who are deaf or hard of hearing (DHH), or who are deafblind (DB) has been deleted and added to re-lettered subsection (f). At adoption, subsection (e)(2)(A) was modified to clarify that a student's ARD committee determines whether homebound placement is necessary for the provision of a free appropriate public education (FAPE).
The hospital class setting is revised for clarity based on questions received from stakeholders.
The speech therapy setting is modified to clarify the current structures laid out in the Student Attendance Accounting Handbook.
Both resource room/services and self-contained are aligned to reflect the differentiation in codes that the current Student Attendance Accounting Handbook uses.
Based on numerous questions from stakeholders, clarification has been added about when an instructional arrangement would be considered the off-home campus setting. Based on public comment, at adoption the wording regarding integrated employment has been updated to refer to it as "competitive integrated employment."
The nonpublic day school instructional arrangement/setting has been clarified to reference the alignment with §89.1094.
The vocational adjustment class description has been amended to better align with current practices.
Clarification about the residential care and treatment facility setting has been added based on requests from stakeholders.
As proposed, subsection (e)(11) would have been amended to replace the term "state-supported living center" with "state school" to align with the terminology used in the TEC. Based on public comment, the term "state-supported living center" was reinstated with a note that the term "state school" is used in TEC, §48.102.
Re-lettered subsection (f) has been amended to clarify instances when a child from birth through age two who has a VI, is DHH, or is DB is entitled to enrollment in school districts and funding through the state special education allotment.
Additional edits were made throughout §89.1005 to align with current terminology and for conciseness.
Section 89.1075 references general program requirements and local district procedures. The adopted changes add an existing federal requirement for school districts to develop policies and procedures that implement the established state policies and procedures, a provision about prior written notice that is currently located in 19 TAC §89.1050, and an existing statutory requirement reminding transition and employment designees to complete required training. Additional revisions were made for clarity and alignment with current law.
Section 89.1076 is related to interventions and sanctions that TEA may, or is required to, implement under state and federal law when noncompliance is identified. The adopted amendment aligns terminology throughout the rule and adds a federally required intervention to place specific conditions on funds or redirect funds.
Section 89.1085 addresses referrals to TSBVI and TSD. The adopted amendment clarifies that if a student is enrolled in an open-enrollment charter school and the student's ARD committee places a student in TSBVI or TSD, that school becomes the resident school district for purposes of §89.1085 and §89.1090.
Section 89.1090 references transportation to and from TSBVI and TSD when students are expected to leave the residential campus setting. The adopted amendment clarifies when a resident district would be required to cover transportation costs for a student placed at TSBVI or TSD. Based on public comment, proposed language about when transportation must be provided has been removed, and existing language proposed for deletion has been reinstated. TEA plans to engage in ongoing discussions with the affected parties regarding any potential future amendments. Transportation costs for students in other residential settings when placed by a student's ARD committee would likely be covered in those contracts for services. The section title has been modified to clarify that the rule pertains only to placements at TSBVI and TSD.
Section 89.1092 describes the requirements when a school district places a student in a residential placement for the provision of FAPE to a student. The adopted amendment provides clarity and aligns with current expectations and nonpublic residential placement guidance. In addition, the adopted changes include adding definitions for school district, nonpublic residential program, and nonpublic residential program provider; listing the requirements related to any nonpublic residential placement, including school district responsibilities prior to placement and during such placement; clarifying language related to notification; and expanding information on the approval process. The section title has also been modified to clarify the purpose of the rule. Based on public comment, subsection (b)(3)(C)(iv) has been modified at adoption to reference prohibited aversive techniques and to remove a requirement that a school district create the program provider's policies, procedures, and operating guidelines in conjunction with the program provider.
Section 89.1094 refers to placement in off-campus programs. Based on requests for clarification from stakeholders related to the phrases "off-campus program" and "off-home campus" as described in §89.1005, the section title has been modified to clarify these types of placements. The new title is "Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of a Free Appropriate Public Education (FAPE)," which aligns with the wording in §89.1092 regarding nonpublic residential placement.
The adopted amendment to §89.1094(a) addresses placements at nonpublic day schools; a county system operating under former TEC, §11.301; a regional education service center; or any other public or private entity with which a school district enters a contract for the provision of special education services in a facility not operated by a school district.
The placement requirements listed in §89.1094(b) are amended for clarity and to reference criminal background checks and the requirement for the provider to develop policies, procedures, and operating guidelines to ensure the student maintains the same rights as other public-school students while in this placement. Based on public comment, subsection (b)(3)(C)(iv) has been modified at adoption to reference prohibited aversive techniques and to remove a requirement that a school district create the program provider's policies, procedures, and operating guidelines in conjunction with the program provider.
The adopted amendment to §89.1094(c), regarding notification, provides clarity and alignment.
Adopted new §89.1094(d), regarding the approval process for a nonpublic residential program, clarifies TEA's authority to place conditions on a program provider, not reapprove an approval, or withdraw an approval from a program provider.
The adopted amendment to §89.1094(e), related to funding procedures, provides clarity and reflects that contracts must not begin prior to August 1 and must not extend past July 31 of the following year.
Based on public comment, changes were made to the rules that modify the government growth impact and the public benefit of the rules. The following assessments have been updated since published as proposed.
TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand existing regulations by increasing the required number of times a school district must contact residential facilities within the district's boundaries to conduct Child Find activities. It would also modify instructional arrangement descriptions and add specific descriptions for instructional arrangements associated with children from birth through age two. In addition, it would add that open-enrollment charter schools can be considered a resident district for purposes of placement and transportation to the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf, and a change to transportation responsibilities would require a resident district to cover transportation at the beginning and end of school terms and for regularly scheduled school holidays when all students are expected to leave the residential campus. Likewise, proposed amendments would explicitly clarify requirements regarding the approval, contracting, and compliance monitoring processes when students with disabilities require a nonpublic day or residential placement, including requirements regarding criminal background checks, onsite visits, written verification that certain health and safety standards are met, and the requirement for the provider to develop policies, procedures, and operating guidelines to ensure the student maintains the same rights as other public school students with disabilities while in this placement. It would also add a contract length requirement for these placements.
The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not limit or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.
The proposed amendment to §89.1001 would align with current terminology and practices of federal law. It would clarify existing statutory obligations for school districts to extend their Child Find activities to residential facilities when those facilities are in the district's boundaries.
The proposed amendment to §89.1005 would modify qualifications that instructional arrangements and settings listed in TEC, §48.102, must meet to be funded through the state special education allotment. The proposed amendment would also include term changes to provide clarity and alignment between this rule and the Student Attendance Accounting Handbook and incorporate current practices based on requests from stakeholders.
The proposed amendment to §89.1075 would include for practical reference the addition of an existing requirement that school districts develop policies and procedures that implement the established state policies and procedures and the statutory requirements for a district's transition and employment designee. The proposed amendment would also add a provision about prior written notice that is currently located in 19 TAC §89.1050 to this more appropriate rule and make revisions for clarity and alignment with current law.
The proposed amendment to §89.1076 would revise the criteria for interventions and sanctions that TEA is required to implement under state and federal law when noncompliance is identified. The criteria include steps related to the appointment of a monitor and a conservator/management team and adds reference to the possibility of a federally required intervention to place specific conditions on funds.
The proposed amendment to §89.1085 would provide clarification that if a student is enrolled in an open-enrollment charter school and the student's ARD committee places a student in TSBVI or TSD, that school becomes the resident school district for purposes of §89.1085 and §89.1090.
The proposed amendment to §89.1090 would provide clarification as to when a resident district would be required to cover transportation costs for a student placed at TSBVI or TSD.
The proposed amendment to §89.1092 would clarify and align the rule with current expectations, outline nonpublic residential placement guidance, and better describe the rule's purpose.
The proposed amendment to §89.1094 would clarify longstanding requests from stakeholders to differentiate the phrase "off-campus program" from "off-home campus" as described in §89.1005. A proposed title change would align with the wording in the nonresidential placement rule in §89.1092.
There is no anticipated economic cost to persons who are required to comply with the proposal.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 3, 2024, and ended June 3, 2024, and included public hearings on May 15 and 16, 2024. Following is a summary of public comments received and agency responses.
§89.1001, Scope and Applicability
Comment: Windham School District requested removing the phrase "or Texas Department of Criminal Justice" (TDCJ) from proposed subsection (c) to reduce the chance of duplicated Child Find efforts.
Response: The agency agrees that the proposed wording to include the Texas Juvenile Justice Department (TJJD) and TDCJ may be confusing and potentially result in duplicated efforts. At adoption, the agency has removed references to both of these agencies in subsection (c). However, a district's Child Find efforts would apply to the extent that TJJD or TDCJ would not oversee a residential facility under their jurisdictions in the district's boundaries.
Comment: Texas Parent to Parent (TxP2P) and Texans for Special Education Reform (TxSER) requested that TEA add FAPE and a cross reference to obligations of noneducational public agencies for the provision of FAPE in place of "educational services" in subsection (c).
Response: The agency agrees that clarification is needed. At adoption, subsection (c) was modified to change the term "educational services" to "special education and related services."
Comment: The Texas Council of Administrators of Special Education (TCASE) requested maintaining the requirement to annually conduct Child Find activities and offer service to students in residential facilities to use personnel resources more efficiently.
Response: The agency disagrees. Proactive outreach is important to reach as many eligible students as possible.
Comment: TCASE requested that an amendment to subsection (c) include a documentation requirement for situations in which the residential facility denies entry to school personnel.
Response: The agency disagrees. The denial of entry is not addressed in the Individuals with Disabilities Education Act or other state or federal law. If situations in which school personnel are being denied entry to residential facilities occur, a change to the memorandum of understanding promulgated in 19 TAC §89.1115 may need to be updated to provide for resolution of these occurrences.
§89.1005, Instructional Arrangements and Settings
Comment: Disability Rights Texas (DRTx), Autism Speaks, TxP2P, and TxSER requested that TEA add a requirement to subsection (c) for providing a justification and projected date of return if the ARD committee determines a shortened instructional day is necessary for a student with a disability.
Response: The agency disagrees with adding this specific statement. Since the ARD committee would have to agree with a shortened day, these discussions would likely be included in that decision-making process. However, at adoption, the agency has reworded subsection (c) to make it clear that the ARD committee can only modify an instructional day when it is determined necessary for the child.
Comment: TxP2P and TxSER requested an additional provision in subsection (c) to add the requirement that a local education agency hold a due process hearing in instances where parents disagree with the ARD committee decision to shorten the school day.
Response: The agency disagrees, as this would already be an ARD committee decision where dispute resolution processes would apply. However, at adoption, the agency has reworded subsection (c) to make it clear that the ARD committee can only modify an instructional day when it is determined necessary for the child.
Comment: TCASE requested maintaining the word "confined" for clarity in subsection (e)(2)(A).
Response: The agency disagrees that a change is necessary to the proposed language, as confinement to the home is still included as a consideration of the ARD committee when determining whether homebound placement will be approved.
Comment: TCASE commented in support of not guaranteeing the placement of a student in homebound settings through physician documentation.
Response: The agency agrees but, based on other stakeholder comments, cautions school districts that they cannot disregard physician documentation and must consider the documentation in light of the eligibility requirements for homebound instruction funding.
Comment: TxP2P and TxSER commented in disagreement with the idea that an ARD committee can disregard documentation from a licensed physician in determining homebound placement and recommended the addition of an expedited due process hearing by a local education agency in these instances. The commenters also recommended that an ARD meeting invitation be given to the student's medical provider regarding any homebound determination.
Response: The agency disagrees. Physician documentation of the need for homebound services has never been a guaranteed right for purposes of funding. An ARD committee must consider the physician's documentation in light of the requirements for a student to be eligible for state funding under the homebound instructional arrangement.
Comment: DRTx, TxP2P, and TxSER requested clarification in subsection (e)(3)(A) by including "other medical facilities" only if the student is actively receiving noneducational treatment and care.
Response: The agency disagrees. This rule is concerned with providing special education and related services to students, so it is not necessary to mention the reason for which a student is receiving these services at a medical facility.
Comment: TCASE requested clarification for when weeks of homebound instruction are not consecutive to preserve staff resources for students who are confined in serious conditions.
Response: The agency disagrees that clarification is necessary. The ARD committee will determine the need for homebound instruction based on documentation from a physician and any other relevant information.
Comment: DRTx, TxP2P, and TxSER requested replacing "integrated employment" with "competitive integrated employment" in subsection (e)(7)(C) and (D) to align with the state's official Employment First policy.
Response: The agency agrees and has modified subsection (e)(7)(C) and (D) at adoption to use the phrase "competitive integrated employment."
Comment: DRTx, TxP2P, Autism Speaks, and TxSER commented in disagreement with the name change from "state-supported living center" to "state school."
Response: The agency agrees that clarification would be appropriate. The intent of the proposed change was to align with the instructional arrangements described in TEC, §48.102, which uses the term "state schools." Therefore, at adoption, the term "state-supported living center" was reinstated with a note that the term "state school" is used in TEC, §48.102.
§89.1075, General Program Requirements and Local District Procedures
Comment: TCASE requested clarification on the addition of the term "supporting data" in subsection (a), as the section already references supporting data.
Response: The agency provides the following clarification. The first use of the term "supporting data" is associated with evaluation reports, and the second use is associated with a student's individualized education programs.
Comment: TxP2P and TxSER requested the addition of a provision in subsection (c) to include requirements for the ARD committee to provide justification for the determination of a shortened instructional day and for the local education agency to hold a due process hearing justifying the determination when parents disagree.
Response: The agency disagrees. A shortened day is a decision of the ARD committee, and justification would be a natural discussion included in such a decision. Because parents are part of the ARD committee, dispute resolution procedures already apply.
§89.1076 Interventions and Sanctions
Comment: TCASE requested removing the phrase "but not limited to" in paragraph (3) or clarifying expectations for a local education agency in the event of a corrective action plan.
Response: The agency disagrees. The U.S. Department of Education Office of Special Education Programs (OSEP) requires TEA to engage in different types of corrective actions with school districts.
Comment: TCASE commented in disagreement with the additions in paragraph (10) allowing TEA to place conditions on grant funds or require redirection of funds as an intervention or sanction.
Response: The agency disagrees. OSEP is clear that TEA placing conditions on grant funds or requiring redirection of funds as an intervention or sanction are supervision and monitoring requirements of state education agencies.
Comment: DRTx, TxP2P, and TxSER requested that clarification on the redirection of funds be added to paragraph (10).
Response: The agency disagrees that clarification is necessary. The purpose of any intervention or sanction is to ensure program effectiveness and compliance with federal and state requirements for special education and related services.
§89.1090, Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf
Comment: TCASE requested that, due to bus driver shortages statewide, TEA reconsider the change to subsection (a) that would require transportation be provided every weekend and instead propose alternatives that recognize available resources for families, TSBVI and TSD, and resident school districts.
Response: The agency agrees that further discussion into alternative transportation options is necessary. At adoption, the agency has removed proposed language about when transportation must be provided and has reinstated existing language proposed for deletion. The agency will engage in further dialogue with TSBVI, TSD, and resident school districts.
§89.1092, Contracting for Residential Educational Placements for Students with Disabilities
Comment: DRTx, Autism Speaks, TxSER, and TxP2P requested that language be added in subsections (b) and (e) to prohibit any residential placement or nonpublic day school from allowing aversive techniques as defined by TEC, §37.0023.
Response: The agency agrees in part. At adoption, subsection (b)(3)(C)(iv) has been revised to include the requirement that the program provider's policies, procedures, and operating guidelines must ensure the prohibition of aversive techniques, and additional text has been added to provide clarification. The agency disagrees that adding a reference to this at subsection (e)(1)(F) is necessary.
Comment: DRTx, TxP2P, and TxSER requested that TEA add provisions in subsections (b) and (e) to include considerations regarding proximity of a facility in relation to a student's home prior to determination and approval for placement in a nonpublic residential program.
Response: The agency disagrees, as considerations such as proximity to facilities would already be part of discussions about adhering to the least restrictive environment.
Comment: DRTx, TxP2P, and TxSER requested that TEA add provisions in subsections (b) and (e) to include clarification regarding adhesion to the criteria for returning a student to his or her local school program and avoiding the facility if it has a history of failing to return students to their home campus.
Response: The agency disagrees with adding these criteria to the rule but will consider this comment when providing technical assistance to school districts.
Comment: DRTx, TxP2P, and TSER requested that TEA add provisions in subsections (b) and (e) to clarify that a facility is not on a placement hold by a state agency for a substantive reason.
Response: The agency disagrees. This would be a part of the process in determining if the facility holds all applicable local and state accreditation and permit requirements.
Comment: DRTx, TxP2P, and TxSER requested that TEA add provisions in subsections (b) and (e) to ensure that the program provider's staff and contractors who work with students are not included in the Registry of Persons Ineligible for Employment in Public Schools.
Response: The agency disagrees with including the commenter's suggestion in rule. Criminal background checks applicable to public school employees are also required for staff who work with students assigned to these programs.
§89.1094, Students Receiving Special Education and Related Services in an Off-Campus Program
Comment: DRTx and Autism Speaks requested that TEA add a statement to subsection (b)(3)(C)(iv) that prohibits any residential placement or nonpublic day school from using aversive techniques as defined by TEC, §37.0023.
Response: The agency agrees. At adoption, subsection (b)(3)(C)(iv) has been revised to include the requirement that the program provider's policies, procedures, and operating guidelines must ensure the prohibition of aversive techniques, and additional text has been added to provide clarification.
Comment: TCASE requested that TEA move the requirements in §89.1094(b)(3)(C)(iv) under TEA responsibility to align with federal regulations and increase efficiency.
Response: The agency disagrees. However, at adoption, the agency has removed the requirement that the provider's policies, procedures, and operating guidelines be developed in conjunction with the school district so that it is more of a verification step for a school district. A similar change has been made to §89.1092.
SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES
DIVISION 1. GENERAL PROVISIONS
STATUTORY AUTHORITY. The amendments are adopted under Texas Education Code (TEC), §29.001, which requires the agency to develop and modify as necessary a statewide plan for the delivery of services to children with disabilities that ensures the availability of a free appropriate public education to children between the ages of 3-21; TEC, §29.003, which requires the agency to develop eligibility criteria for students receiving special education services; TEC, §29.005, which establishes criteria for developing a student's individualized education program prior to a student enrolling in a special education program; TEC, §29.008, which establishes contracts for services for residential placement; TEC, §29.010, which requires the agency to develop and implement a monitoring system for school district compliance with federal and state laws regarding special education; TEC, §29.012, which requires the commissioner to develop and implement procedures for compliance with federal requirements relating to transition services for students enrolled in a special education program; TEC, §29.013, which requires the agency to establish procedures and criteria for the distribution of funds to school districts for noneducational community-based support services to certain students with disabilities to ensure they receive a free appropriate education in the least restrictive environment; TEC, §29.014, which establishes criteria for school districts that provide education solely to students confined to or educated in hospitals; TEC, §30.002, which requires the agency to develop and administer a statewide plan for the education of children with visual impairments; TEC, §30.003, which establishes requirements for support of students enrolled in Texas School for the Blind and Visually Impaired or Texas School for the Deaf; TEC, §30.005, which establishes a memorandum of understanding between the Texas Education Agency and the Texas School for the Blind and Visually Impaired; TEC, §30.021, which establishes a school for the blind and visually impaired in Texas; TEC, §30.051, which establishes the purpose for Texas School for the Deaf; TEC, §30.057, which establishes admission criteria for eligible students with disabilities to the Texas School for the Deaf; TEC, §30.083, which requires the development of a statewide plan for educational services for students who are deaf or hard of hearing; TEC, §30.087, which establishes criteria for funding the cost of educating students who are deaf or hard of hearing; TEC, §39A.001, which establishes grounds for commissioner action; TEC, §39A.002, which establishes actions that the commissioner of education is authorized to take if a school district is subject to action under §39A.001; TEC, §48.102, which establishes criteria for school districts to receive an annual allotment for students in a special education program; 34 Code of Federal Regulations (CFR), §300.8, which defines terms regarding a child with a disability; 34 CFR, §300.101, which defines the requirement for all children residing in the state between ages of 3-21 to have a free appropriate public education available; 34 CFR, §300.111, which defines the requirement of the state to have policies and procedures in place regarding child find; 34 CFR, §300.114, which defines least restrictive environment requirements; 34 CFR §300.115, which establishes criteria for a continuum of alternative placements; 34 CFR §300.116, which establishes criteria for determining the educational placement of a child with a disability; 34 CFR, §300.121, which establishes the requirement for a state to have procedural safeguards; 34 CFR, §300.124, which establishes the requirement of the state to have policies and procedures in place regarding the transfer of children from the Part C program to the preschool program; 34 CFR, §300.129, which establishes criteria for the state responsibility regarding children in private schools; 34 CFR, §300.147, which establishes the criteria for the state education agency when implementing the responsibilities each must ensure for a child with a disability who is placed in or referred to a private school or facility by a public agency; 34 CFR, §300.149, which establishes the state education agency's responsibility for general supervision; 34 CFR, §300.201, which establishes the requirement for local education agencies to have policies, procedures, and programs that are consistent with the state policies and procedures; 34 CFR, §300.500, which establishes the responsibility of a state education agency and other public agencies to ensure the establishment, maintenance, and implementation of procedural safeguards; and 34 CFR, §300.600, which establishes requirements for state monitoring and enforcement.
CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§29.001, 29.003, 29.005, 29.008, 29.010, 29.012, 29.013, 29.014, 30.002, 30.003, 30.005, 30.021, 30.051, 30.057, 30.083, 30.087, 39A.001, 39A.002, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.115, 300.116, 300.121, 300.124, 300.129, 300.147, 300.149, 300.201, 300.500, and 300.600.
§89.1001.Scope and Applicability.
(a) Special education and related services shall be provided to eligible students in accordance with all applicable federal law and regulations, state statutes, rules of the State Board of Education, State Board for Educator Certification, and commissioner of education, and the Individuals with Disabilities Education Act (IDEA).
(b) Education programs under the direction and control of the Texas Juvenile Justice Department, Texas School for the Blind and Visually Impaired, Texas School for the Deaf, and schools within the Texas Department of Criminal Justice shall comply with state and federal law and regulations concerning the delivery of special education and related services to eligible students and shall be monitored by the Texas Education Agency in accordance with the requirements identified in subsection (a) of this section.
(c) Residential facility refers to a facility defined by Texas Education Code, §5.001(8), which includes any person, facility, or entity that provides 24-hour custody or care of a person residing in the facility for detention, treatment, foster care, or any noneducational purpose. A school district must initiate Child Find outreach activities to locate, evaluate, and identify eligible students in any residential facility within its boundaries. If a student is eligible, a school district must provide the required special education and related services to the student unless, after contacting the facility to offer those services to eligible students with disabilities, the facility can demonstrate that the services are provided by another educational program provider, such as a charter school, approved nonpublic school, or a facility operated private school. However, the district shall, at minimum, contact the facility at least twice per year to conduct Child Find activities and to offer services to eligible students with disabilities.
§89.1005.Instructional Arrangements and Settings.
(a) The following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Instructional arrangement/setting. Instructional arrangement/setting refers to the arrangement listed in Texas Education Code (TEC), §48.102, and the weight assigned to it that is used to generate funds from the state special education allotment.
(2) Instructional day. Instructional day has the meaning assigned to it in §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook).
(b) Each school district must provide special education and related services to eligible students with disabilities in order to meet the unique needs of those students in accordance with 34 Code of Federal Regulations, §§300.114-300.118, and state law.
(c) Subject to §89.1075(f) of this title (relating to General Program Requirements and Local District Procedures), for the purpose of determining the student's instructional arrangement/setting, a student receiving special education and related services must have available an instructional day commensurate with that of students who are not receiving special education and related services and only modify the instructional day when determined necessary by the admission, review, and dismissal (ARD) committee. A student's ARD committee shall determine the student's instructional arrangement/setting based on the percentage of the student's instructional day that the student receives special education and related services in a setting other than general education.
(d) While this section uses the names of the instructional arrangements/settings as they are described in TEC, §48.102, there may be additional instructional arrangement/setting codes that are created by the Texas Education Agency (TEA) within the student attendance accounting requirements defined in §129.1025 of this title. While the codes may be titled differently, each will align to an arrangement/setting as described in this section and in TEC, §48.102.
(e) Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education and related services and shall include the following.
(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the general education classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect, and/or support services to the student and/or the student's general education classroom teacher(s) necessary to enrich the general education classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, educational aides, curricular or instructional modifications/accommodations, special materials/equipment, positive classroom behavioral interventions and supports, consultation with the student and his/her general education classroom teacher(s) regarding the student's progress in general education classes, staff development, and reduction of ratio of students to instructional staff. Monitoring student progress in and of itself is not a special education service; this cannot be listed as the only specially designed instruction documented in a student's IEP.
(2) Homebound. This instructional arrangement/setting, also referred to as home-based instruction, is for providing special education and related services to students who are served at their home for the following reasons.
(A) Medical reasons. Homebound instruction is used for a student whose ARD committee has received medical documentation from a physician licensed to practice in the United States that the student is expected to incur full-day absences from school for a minimum of four weeks for medical reasons, which could include psychological disorders, and the ARD committee has determined that this is the most appropriate placement for the student. The weeks do not have to be consecutive. For the ARD committee to approve this placement, the committee will review documentation related to anticipated periods of student confinement to the home, as well as whether the student is determined to be chronically ill or any other unique medical circumstances that would require this placement in order to provide a free appropriate public education (FAPE) to the student. Documentation by a physician does not guarantee the placement of a student in this instructional arrangement/setting, as the student's ARD committee shall determine whether the placement is necessary for the provision of FAPE, and, if so, will determine the amount of services to be provided to the student at home in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (c) of this section.
(B) Children ages three through five years of age. Home-based instruction may be used for children ages three through five when determined appropriate by the child's ARD committee and as documented in the student's IEP. While this setting would generate the same weight as the homebound instructional arrangement/setting, the data on this setting may be collected differently than the medical homebound arrangement/setting.
(C) Students confined to or educated in hospitals. This instructional arrangement/setting also applies to school districts described in TEC, §29.014.
(3) Hospital class. This instructional arrangement/setting is for providing special education and related services by school district personnel:
(A) at a hospital or other medical facility; or
(B) at a residential care and treatment facility not operated by the school district. If a student residing in the facility is provided special education and related services at a school district campus but the student's parent is not a school district resident, the student is considered to be in the residential care and treatment facility instructional arrangement/setting. If a student residing in the facility is provided special education and related services at a school district campus and the parent, including a surrogate parent, is a school district resident, the student's instructional arrangement/setting would be assigned based on the services that are provided at the campus on the same basis as a resident student residing with his or her parents.
(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a general education classroom or in a setting other than a general education classroom.
(A) When the only special education service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement. If a student's IEP indicates that a special education teacher is involved in the implementation of the student's IEP but there is no indication of how that teacher provides a special education service, the student is in the speech therapy instructional arrangement/setting.
(B) When a student receives speech therapy and a related service but no other special education service, the student is in the speech therapy instructional arrangement/setting.
(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than general education for less than 50% of the regular school day. For funding purposes, this will be differentiated between the provision of special education and related services to a student in a setting other than general education for less than 21% of the instructional day and special education and related services provided to a student in a setting other than general education for at least 21% of the instructional day but less than 50% of the instructional day.
(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a setting other than general education for 50% or more of the regular school day on a regular school campus. For funding purposes, mild/moderate will be considered at least 50% but no more than 60% of the student's instructional day, and severe will be considered more than 60% of the student's instructional day.
(7) Off-home campus. This instructional arrangement/setting is for providing special education and related services to the following:
(A) a student at South Texas Independent School District or Windham School District;
(B) a student who is one of a group of students from one or more school districts served in a single location in another school district when a FAPE is not available in the sending district;
(C) a student in a community setting, facility, or environment operated by a school district that prepares the student for postsecondary education/training, competitive integrated employment, and/or independent living in coordination with the student's individual transition goals and objectives;
(D) a student in a community setting or environment not operated by a school district that prepares the student for postsecondary education/training, competitive integrated employment, and/or independent living in coordination with the student's individual transition goals, with regularly scheduled instruction or direct involvement provided by school district personnel;
(E) a student in a facility not operated by a school district with instruction provided by school district personnel; or
(F) a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.
(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school when the school district is unable to provide a FAPE for the student. This instructional arrangement/setting includes the providers listed in §89.1094 of this title (relating to Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of FAPE).
(9) Vocational adjustment class. Although referred to as a class, this instructional arrangement/setting is a support program for providing special education and related services to a student who is placed on a job (paid or unpaid unless otherwise prohibited by law) with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's transition plan, as documented in the student's IEP, and may include special education services received in career and technical education work-based learning programs.
(10) Residential care and treatment facility (not school district resident). For purposes of this section, residential care and treatment facility refers to a facility at which a student with a disability currently resides, who was not placed at the facility by the student's ARD committee, and whose parent or guardian does not reside in the district providing educational services to the student. This instructional arrangement/setting is for providing special education and related services to a student on a school district campus who resides in a residential care and treatment facility and whose parents do not reside within the boundaries of the school district that is providing educational services to the student. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement, or if the student resides at a state-supported living center, the instructional arrangement will be considered the state school arrangement/setting. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.
(11) State-supported living center (referred to as state school in TEC, §48.102). This instructional arrangement/setting is for providing special education and related services to a student who resides at a state-supported living center when the services are provided at the state-supported living center location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.
(f) Children from birth through the age of two with visual impairments (VI), who are deaf or hard of hearing (DHH), or who are deaf blind (DB) must be enrolled at the parent's request by a school district when the district becomes aware of a child needing services. The appropriate instructional arrangement for students from birth through the age of two with VI, DHH, or DB shall be determined in accordance with the individualized family services plan, current attendance guidelines, and the agreement memorandum between TEA and Texas Health and Human Services Commission Early Childhood Intervention (ECI) Services. However, the following guidelines shall apply.
(1) A home-based instructional arrangement/setting is used when the child receives services at home. This arrangement/setting would generate the same weight as the homebound instructional arrangement/setting, and average daily attendance (ADA) funding will depend on the number of hours served per week.
(2) A center-based instructional arrangement/setting is used when the child receives services in a day care center, rehabilitation center, or other school/facility contracted with the Health and Human Services Commission (HHSC) as an ECI provider/program. This arrangement/setting would generate the same weight as the self-contained, severe instructional arrangement/setting, and ADA funding will depend on the number of hours served per week.
(3) Funding may only be claimed if the district is involved in the provision of the ECI and other support services for the child. Otherwise, the child would be enrolled and indicated as not in membership for purposes of funding. If the district is contracted with HHSC as an ECI provider, funding would be generated under that contract.
(g) For nonpublic day and residential placements, the school district must comply with the requirements under §89.1092 of this title (relating to Contracting for Nonpublic Residential Placements for the Provision of a Free Appropriate Public Education (FAPE)) or §89.1094 of this title, as appropriate.
(h) Other program options that may be considered for the delivery of special education and related services to a student may include the following:
(1) contracts with other school districts; and
(2) other program options as approved by TEA.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2024.
TRD-202403562
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 22, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 475-1497
19 TAC §§89.1075, 89.1076, 89.1085, 89.1090, 89.1092, 89.1094
STATUTORY AUTHORITY. The amendments are adopted under Texas Education Code (TEC), §29.001, which requires the agency to develop and modify as necessary a statewide plan for the delivery of services to children with disabilities that ensures the availability of a free appropriate public education to children between the ages of 3-21; TEC, §29.003, which requires the agency to develop eligibility criteria for students receiving special education services; TEC, §29.005, which establishes criteria for developing a student's individualized education program prior to a student enrolling in a special education program; TEC, §29.008, which establishes contracts for services for residential placement; TEC, §29.010, which requires the agency to develop and implement a monitoring system for school district compliance with federal and state laws regarding special education; TEC, §29.012, which requires the commissioner to develop and implement procedures for compliance with federal requirements relating to transition services for students enrolled in a special education program; TEC, §29.013, which requires the agency to establish procedures and criteria for the distribution of funds to school districts for noneducational community-based support services to certain students with disabilities to ensure they receive a free appropriate education in the least restrictive environment; TEC, §29.014, which establishes criteria for school districts that provide education solely to students confined to or educated in hospitals; TEC, §30.002, which requires the agency to develop and administer a statewide plan for the education of children with visual impairments; TEC, §30.003, which establishes requirements for support of students enrolled in Texas School for the Blind and Visually Impaired or Texas School for the Deaf; TEC, §30.005, which establishes a memorandum of understanding between the Texas Education Agency and the Texas School for the Blind and Visually Impaired; TEC, §30.021, which establishes a school for the blind and visually impaired in Texas; TEC, §30.051, which establishes the purpose for Texas School for the Deaf; TEC, §30.057, which establishes admission criteria for eligible students with disabilities to the Texas School for the Deaf; TEC, §30.083, which requires the development of a statewide plan for educational services for students who are deaf or hard of hearing; TEC, §30.087, which establishes criteria for funding the cost of educating students who are deaf or hard of hearing; TEC, §39A.001, which establishes grounds for commissioner action; TEC, §39A.002, which establishes actions that the commissioner of education is authorized to take if a school district is subject to action under §39A.001; TEC, §48.102, which establishes criteria for school districts to receive an annual allotment for students in a special education program; 34 Code of Federal Regulations (CFR), §300.8, which defines terms regarding a child with a disability; 34 CFR, §300.101, which defines the requirement for all children residing in the state between ages of 3-21 to have a free appropriate public education available; 34 CFR, §300.111, which defines the requirement of the state to have policies and procedures in place regarding child find; 34 CFR, §300.114, which defines least restrictive environment requirements; 34 CFR §300.115, which establishes criteria for a continuum of alternative placements; 34 CFR §300.116, which establishes criteria for determining the educational placement of a child with a disability; 34 CFR, §300.121, which establishes the requirement for a state to have procedural safeguards; 34 CFR, §300.124, which establishes the requirement of the state to have policies and procedures in place regarding the transfer of children from the Part C program to the preschool program; 34 CFR, §300.129, which establishes criteria for the state responsibility regarding children in private schools; 34 CFR, §300.147, which establishes the criteria for the state education agency when implementing the responsibilities each must ensure for a child with a disability who is placed in or referred to a private school or facility by a public agency; 34 CFR, §300.149, which establishes the state education agency's responsibility for general supervision; 34 CFR, §300.201, which establishes the requirement for local education agencies to have policies, procedures, and programs that are consistent with the state policies and procedures; 34 CFR, §300.500, which establishes the responsibility of a state education agency and other public agencies to ensure the establishment, maintenance, and implementation of procedural safeguards; and 34 CFR, §300.600, which establishes requirements for state monitoring and enforcement.
CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§29.001, 29.003, 29.005, 29.008, 29.010, 29.012, 29.013, 29.014, 30.002, 30.003, 30.005, 30.021, 30.051, 30.057, 30.083, 30.087, 39A.001, 39A.002, and 48.102, and 34 Code of Federal Regulations, §§300.8, 300.101, 300.111, 300.114, 300.115, 300.116, 300.121, 300.124, 300.129, 300.147, 300.149, 300.201, 300.500, and 300.600.
§89.1090.Transportation of Students Placed in the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.
(a) For each student placed by the student's admission, review, and dismissal (ARD) committee in the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf that includes placement at the residential campus, the resident school district, as defined in §89.1085 of this title (relating to Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services), shall be responsible for transportation from the campus as well as the return to campus at the beginning and end of school terms and for regularly scheduled school holidays when all students are expected to leave the residential campus.
(b) The resident school district is not responsible for transportation costs for students placed in these settings by their parents.
(c) Transportation costs shall not exceed state approved per diem and mileage rates unless excess costs can be justified and documented. Transportation shall be arranged by the school using the most cost efficient means.
(d) When it is necessary for the safety of the student, as determined by the ARD committee and as documented in the student's individualized education program, for an adult designated by the ARD committee to accompany the student, round-trip transportation for that adult shall also be provided.
(e) The resident school district and the school shall coordinate to ensure that students are transported safely, including the periods of departure and arrival.
§89.1092.Contracting for Nonpublic Residential Placements for the Provision of a Free Appropriate Public Education (FAPE).
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.
(1) School district--The definition of a school district includes independent school districts established under Texas Education Code (TEC), Chapter 11, Subchapters A-F, and open-enrollment charter schools established under TEC, Chapter 12, Subchapter D.
(2) Nonpublic residential program--A nonpublic residential program includes the provision of special education and related services to one or more Texas public school students by someone other than school district personnel at a facility not operated by a school district. A student placed in this program has been determined by his or her admission, review, and dismissal (ARD) committee to require a residential placement in order to facilitate the student's attainment of reasonable educational progress and to provide the student a free appropriate public education (FAPE). It is not a placement intended primarily for the provision of medical care and treatment.
(3) Nonpublic residential program provider--A nonpublic residential program provider is a public or private entity with one or more facilities that contracts with a school district for the provision of some or all of a student's special education and related services when the school district is unable to provide those services and maintains current and valid licensure by the Texas Department of Family and Protective Services, the Texas Health and Human Services Commission, or another appropriate state agency. A provider that a school district contracts with only for the provision of related services is not subject to the requirements of this section.
(b) Nonpublic residential program requirements. A school district may contract with a nonpublic residential program provider when the student's ARD committee determines that a residential placement is necessary in order for the student to receive a FAPE in accordance with the requirements of this section.
(1) Before a student's ARD committee places a student with a disability in, or refers a student to, a nonpublic residential program, the ARD committee shall initiate and conduct a meeting to develop an individualized education program (IEP) for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner of education rules in this chapter'.
(2) Before a student's ARD committee places a student with a disability in, or refers a student with a disability to, a nonpublic residential program, the district shall initiate and conduct an in-person, onsite review of the program provider's facility and program to ensure that the program is appropriate for meeting the student's educational needs.
(3) The appropriateness of the placement and the facility shall be documented in the IEP annually. The student's ARD committee may only recommend a nonpublic residential program if the committee determines that the nature and severity of the student's disability and special education needs are such that the student cannot be satisfactorily educated in the school district.
(A) The student's IEP must list which services the school district is unable to provide and which services the nonpublic residential program will provide.
(B) At the time the ARD committee determines placement, the ARD committee shall establish, in writing, criteria and a projected date for the student's return to the school district and document this information in the IEP.
(C) The school district shall make a minimum of two onsite, in-person visits annually, one announced and one unannounced, and more often if directed by the Texas Education Agency (TEA), to:
(i) verify that the program provider can and will provide the services listed in the student's IEP that the provider has agreed to provide to the student;
(ii) obtain written verification that the facility meets minimum standards for health and safety and holds all applicable local and state accreditation and permit requirements;
(iii) verify that the program provider's staff who work with the student have been subject to criminal background checks (to include fingerprinting) that meet the standards applicable to public school employees;
(iv) verify that the program provider has developed written policies, procedures, and operating guidelines that set forth necessary standards and steps to be followed to ensure the student maintains the same rights as other public school students with disabilities, including when the student is subject to emergency behavioral interventions or disciplinary actions, as well as to ensure the prohibition of aversive techniques as defined by TEC, §37.0023; and
(v) verify that the educational program provided at the facility is appropriate and the placement is the least restrictive environment for the student.
(4) The placement of more than one student in the same facility may be considered in the same onsite visit to the facility. However, the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.
(5) When a student who is placed by a school district in a nonpublic residential program changes his or her residence to another Texas school district and the student continues in the contracted placement, the school district that negotiated the contract shall be responsible for the residential contract for the remainder of the school year.
(c) Notification. Within 30 calendar days from an ARD committee's decision to place or continue the placement of a student in a nonpublic residential program, a school district must electronically submit to TEA notice of, and information regarding, the placement in accordance with submission procedures specified by TEA.
(1) If the nonpublic residential program provider is on the commissioner's list of approved providers, TEA will review the student's IEP and placement as required by 34 CFR, §300.120, and, in the case of a placement in or referral to a private school or facility, 34 CFR, §300.146. After review, TEA will notify the school district whether federal or state funds for the program placement are approved. If TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.
(2) If the nonpublic residential program provider is not on the commissioner's list of approved providers, TEA will begin the approval procedures described in subsection (d) of this section. School districts must ensure there is no delay in implementing a child's IEP in accordance with 34 CFR, §300.103(c).
(3) If a nonpublic residential program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify TEA of the order within 30 calendar days. The program provider serving the student is not required to go through the approval procedures described in subsection (d) of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the program, the program provider will be required to go through the approval procedures to be included on the commissioner's list of approved providers.
(d) Approval of a nonpublic residential program. Nonpublic residential program providers must have their educational programs approved for contracting purposes by the commissioner. Approvals and reapprovals will only be considered for those providers that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. Reapproval can be for one, two, or three years, at the discretion of TEA.
(1) For a program provider to be approved or reapproved, the school district must electronically submit to TEA notice of, and information regarding, the placement in accordance with submission procedures specified by TEA. TEA shall begin approval procedures and conduct an onsite visit to the provider's facility within 30 calendar days after TEA has been notified by the school district and has received the required submissions as outlined by TEA. Initial approval of the provider shall be for one calendar year.
(2) The program provider may be approved or reapproved only after, at minimum, a programmatic evaluation and a review of personnel qualifications, adequacy of physical plant and equipment, and curriculum content.
(3) TEA may place conditions on the provider to ensure the provision of a FAPE for students who have been placed in a nonpublic residential program during the provider's approval period or during a reapproval process.
(4) If TEA does not approve, does not reapprove, or withdraws an approval from a program provider, a school district must take steps to remove any students currently placed at the provider's facility, or cancel a student's planned placement, as expeditiously as possible.
(5) TEA may conduct announced or unannounced onsite visits at a program provider's facility that is serving one or more Texas public school students in accordance with this section and will monitor the program provider's compliance with the requirements of this section.
(e) Criteria for approval. Requests for approval of state and federal funding for nonpublic residential program placements shall be negotiated on an individual student basis through a residential application submitted by the school district to TEA.
(1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:
(A) placement is due primarily to the student's medical problems;
(B) placement is due primarily to problems in the student's home;
(C) district does not have a plan, including criteria and a projected date, for the student's return to the local school program;
(D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);
(E) placement is not cost effective when compared with other alternative placements; or
(F) residential facility provides unfundable or unapprovable services.
(2) The placement, if approved by TEA, shall be funded as follows:
(A) the education cost of nonpublic residential program contracts shall be funded with state funds on the same basis as nonpublic day program contract costs according to TEC, §48.102;
(B) related services and residential costs for nonpublic residential program contracts shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B (IDEA-B), formula base planning amount (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the placement, the district through the residential application process may receive IDEA-B discretionary residential funds to pay the balance of the nonpublic residential contract placement(s) costs; and
(C) funds generated by the formula for residential costs described in subparagraph (B) of this paragraph shall not exceed the daily rate recommended by the Texas Department of Family and Protective Services for the general residential operation intense service level of care.
(3) Contracts between school districts and approved nonpublic residential program providers shall not begin prior to August 1 of the contracted program year and must not extend past July 31.
(4) Amendments to a contract must be electronically submitted to TEA in accordance with submission procedures specified by TEA no later than 30 calendar days from the change in placement or services.
(f) Contract for out-of-state nonpublic residential programs. School districts that contract for out-of-state nonpublic residential programs shall do so in accordance with the rules in this section, except that the program provider must be approved by the appropriate agency in the state in which the facility is located rather than by TEA.
§89.1094.Contracting for Nonpublic or Non-District Operated Day Placements for the Provision of a Free Appropriate Public Education (FAPE).
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Nonpublic or non-district operated day program--A nonpublic or non-district operated day program includes the provision of special education and related services to one or more Texas public school students during school hours by someone other than school district personnel in a facility not operated by a school district. A student placed in this program has been determined by his or her admission, review, and dismissal (ARD) committee to require a day placement in order to facilitate the student's attainment of reasonable educational progress and to provide the student a free appropriate public education (FAPE).
(2) Nonpublic or non-district operated day program provider--A nonpublic or non-district operated day program provider is an entity with one or more facilities that contracts with a school district for the provision of some or all of a student's special education and related services when the school district is unable to provide these services. These providers include:
(A) a county system operating under application of former law as provided in Texas Education Code (TEC), §11.301;
(B) a regional education service center established under TEC, Chapter 8;
(C) a nonpublic day school; or
(D) any other public or private entity with which a school district enters into a contract under TEC, §11.157(a), for the provision of special education services in a facility not operated by a school district.
(3) School district--The definition of a school district includes independent school districts established under TEC, Chapter 11, Subchapters A-F, and open-enrollment charter schools established under TEC, Chapter 12, Subchapter D.
(b) Nonpublic or non-district operated day program requirements. A school district may contract with a nonpublic or non-district operated day program provider in accordance with the requirements in this section.
(1) Before a student's ARD committee places a student with a disability in, or refers a student to, a nonpublic or non-district operated day program, the ARD committee shall initiate and conduct a meeting to develop an individualized education program (IEP) for the student in accordance with 34 Code of Federal Regulations (CFR), §§300.320-300.325, state statutes, and commissioner of education rules in this chapter.
(2) Before a student's ARD committee places a student with a disability in, or refers a student to, a nonpublic or non-district operated day program, the district shall initiate and conduct an onsite, in-person review of the program provider's facility to ensure that the program is appropriate for meeting the student's educational needs.
(3) The appropriateness of the placement and the facility shall be documented in the IEP annually. The student's ARD committee may only recommend a nonpublic or non-district operated day program if the committee determines that the nature and severity of the student's disability and special education needs are such that the student cannot be satisfactorily educated in the school district.
(A) The student's IEP must list which services the school district is unable to provide and which services the program will provide.
(B) At the time the ARD committee determines placement, the ARD committee shall establish, in writing, criteria and a projected date for the student's return to the school district and document this information in the IEP.
(C) The school district shall make a minimum of two onsite, in-person visits annually, one announced and one unannounced, and more often if directed by TEA, to:
(i) verify that the program provider can, and will, provide the services listed in the student's IEP that the provider has agreed to provide to the student;
(ii) obtain written verification that the facility meets minimum standards for health and safety and holds all applicable local and state accreditation and permit requirements;
(iii) verify that the program provider's staff who work with the student have been subject to criminal background checks (to include fingerprinting) that meet the standards applicable to public school employees;
(iv) verify that the program provider has developed written policies, procedures, and operating guidelines that set forth necessary standards and steps to be followed to ensure the student maintains the same rights as other public school students with disabilities, including when the student is subject to emergency behavioral interventions or disciplinary actions, as well as to ensure the prohibition of aversive techniques as defined by TEC, §37.0023; and
(v) verify that the educational program provided at the facility is the least restrictive environment for the student.
(4) The placement of more than one student in the same facility may be considered in the same onsite visit to the facility. However, the IEP of each student must be individually reviewed, and a determination of appropriateness of placement and services must be made for each student.
(c) Notification. Within 30 calendar days from an ARD committee's decision to place or continue the placement of a student in a nonpublic or non-district operated day program, a school district must electronically submit to the Texas Education Agency (TEA) notice of, and information regarding, the placement in accordance with submission procedures specified by TEA.
(1) If the nonpublic or non-district operated day program provider is on the commissioner's list of approved providers, TEA will review the student's IEP and placement as required by 34 CFR, §300.120, and, in the case of a placement in or referral to a private school or facility, 34 CFR, §300.146. After review, TEA will notify the school district whether federal or state funds for the program placement are approved. If TEA does not approve the use of funds, it will notify the school district of the basis for the non-approval.
(2) If the nonpublic or non-district day program provider is not on the commissioner's list of approved providers, TEA will begin the approval procedures described in subsection (d) of this section. School districts must ensure there is no delay in implementing a child's IEP in accordance with 34 CFR, §300.103(c).
(3) If a nonpublic or non-district operated day program placement is ordered by a special education hearing officer or court of competent jurisdiction, the school district must notify TEA of the order within 30 calendar days. The program provider serving the student is not required to go through the approval procedures described in subsection (d) of this section for the ordered placement. If, however, the school district or other school districts intend to place other students in the program, the program provider will be required to go through the approval procedures to be included on the commissioner's list of approved providers.
(d) Approval of the nonpublic or non-district operated day program. Nonpublic or non-district operated day program providers must have their educational programs approved for contracting purposes by the commissioner. Approvals and reapprovals will only be considered for those providers that have a contract already in place with a school district for the placement of one or more students or that have a pending request from a school district. Reapproval can be for one, two, or three years, at the discretion of TEA.
(1) For a program provider to be approved or reapproved, the school district must electronically submit to TEA notice of, and information regarding, the placement in accordance with submission procedures specified by TEA. TEA shall begin approval procedures and conduct an onsite visit to the provider's facility within 30 calendar days after TEA has been notified by the school district and has received the required submissions as outlined by TEA. Initial approval of the provider shall be for one calendar year.
(2) The program provider may be approved or reapproved only after, at minimum, a programmatic evaluation and a review of personnel qualifications, adequacy of physical plant and equipment, and curriculum content.
(3) TEA may place conditions on the provider to ensure the provision of a FAPE for students who have been placed in a nonpublic or non-district operated day program during the provider's approval period or during a reapproval process.
(4) If TEA does not approve, does not reapprove, or withdraws an approval from a program provider, a school district must take steps to remove any students currently placed at the provider's facility, or cancel a student's planned placement, as expeditiously as possible.
(5) TEA may conduct announced or unannounced onsite visits at a program provider's facility that is serving one or more Texas public school students in accordance with this section and will monitor the program provider's compliance with the requirements of this section.
(e) Funding procedures and other requirements. The cost of nonpublic or non-district operated day program placements will be funded according to TEC, §48.102 (Special Education); §89.1005(e) of this title (relating to Instructional Arrangements and Settings); and §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook).
(1) Contracts between school districts and approved nonpublic or non-district operated day program providers shall not begin prior to August 1 of the contracted program year and must not extend past July 31.
(2) Amendments to a contract must be electronically submitted to TEA in accordance with submission procedures specified by TEA no later than 30 calendar days from the change in placement or services.
(3) If a student who is placed in a nonpublic or non-district operated day program by a school district changes his or her residence to another Texas school district during the school year, the school district must notify TEA within 10 calendar days of the date on which the school district ceased contracting with the program provider for the student's placement. The student's new school district must meet the requirements of 34 CFR, §300.323(e), by providing comparable services to those described in the student's IEP from the previous school district until the new school district either adopts the student's IEP from the previous school district or develops, adopts, and implements a new IEP. The new school district must comply with all procedures described in this section for continued or new program placement.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2024.
TRD-202403563
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 22, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 475-1497
The Texas Education Agency adopts the repeal of §§102.1091, 102.1093, and 102.1095 and new §102.1091, concerning college and career readiness school models. The repeal of §§102.1091, 102.1093, and 102.1095 is adopted without changes to the proposed text as published in the April 26, 2024 issue of the Texas Register (49 TexReg 2607) and will not be republished. New §102.1091 is adopted with changes to the proposed text as published in the April 26, 2024 issue of the Texas Register (49 TexReg 2607) and will be republished. The adopted revisions repeal provisions related to Texas Science, Technology, Engineering, and Mathematics (T-STEM) Academies as a result of the sunset of T-STEM programs in June 2023 and consolidate information related to Early College High School (ECHS) and Pathways in Technology Early College High School (P-TECH) into one new section. The adopted new section updates ECHS programmatic requirements to align with the requirements of Senate Bill (SB) 1887, 88th Texas Legislature, Regular Session, 2023.
REASONED JUSTIFICATION: Section 102.1091 defines early college terms and establishes requirements related to the application, operation, notification, evaluation, and authority of early college programs. Section 102.1095 defines P-TECH terms and provides requirements related to the application, operation, grants, incentives, evaluation, and authority of the P-TECH program.
The adopted revisions repeal §102.1091 and §102.1095 and consolidate the definitions and programmatic requirements of ECHS and P-TECH programs into new §102.1091, College and Career Readiness School Models. The new rule reflects revised ECHS and P-TECH programmatic blueprints released in June 2023. The revised blueprints align ECHS and P-TECH definitions and requirements, provide updated evaluation data indicators, and introduce a needs-improvement process. Specifically, the following provisions are addressed.
Subsection (a) includes definitions related to ECHS and P-TECH programs as a result of new terms included in the ECHS and P-TECH revised blueprints. In response to public comment, the definition of ECHS in subsection (a)(7) was revised to include the requirement that associate degrees earned by ECHS students are associate degrees with a completed field of study curriculum as defined by Texas Education Code (TEC), §61.823, that are transferrable at one or more general academic teaching institutions, as defined by TEC, §61.003.
Subsections (b)(2)-(4) describes the different application processes for ECHS and P-TECH campuses based on the campus designation status.
Subsection (c) establishes the Needs Improvement campus designation status and needs-improvement processes for ECHS and P-TECH campuses.
Subsection (d) includes the notification process for P-TECH programs and adds further detail on the notification processes for the new designation campus status as established in the ECHS and P-TECH 2023 blueprints.
Subsection (e) adds the program operation conditions for P-TECH programs and adds further detail on ECHS and P-TECH operation requirements as outlined in the revised blueprints. Based on public comment, the conditions of ECHS were revised in subsection (e)(1)(B) to include the requirement that associate degrees earned by ECHS students are associate degrees with a completed field of study curriculum as defined by TEC, §61.823.
Subsection (f) describes programs available to P-TECH campuses, including the P-TECH Year 5 and 6 programs.
Subsection (g) adds the evaluation criteria for P-TECH programs and updates the evaluation criteria to be based upon ECHS and P-TECH outcomes-based measures, as established by the updated ECHS and P-TECH blueprints.
Subsection (h) adds P-TECH to factors resulting in the revocation of authority to operate a program.
In addition, the early college definitions are updated to align with SB 1887, 88th Texas Legislature, Regular Session, 2023, which updated early college program requirements in TEC, §29.908.
Section 102.1093 provides definitions and programmatic requirements of the T-STEM program. The proposed revisions repeal §102.1093 following the sunset of the T-STEM program in June 2023.
Finally, the subchapter title is changed to Commissioner's Rules Concerning Postsecondary Preparation Programs.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 26, 2024, and ended May 27, 2024. Following is a summary of public comments received and agency responses.
Comment: The Commit Partnership and five supporting organizations, including the Texas Business Leadership Council, The Education Trust, the Longview Chamber of Commerce, Texas 2036, and Teach Plus, noted that the ECHS definition in the proposed rule is not in alignment with the revised definition of ECHS resulting from SB 1887, 88th Texas Legislature, Regular Session, 2023; specifically, the ECHS requirement for a completed field of study curriculum developed under TEC, §61.823. The Commit Partnership and the supporting organizations asked the agency to revise the definition of ECHS to include the field of study curriculum requirement to ensure alignment with SB 1887 and to promote degree transferability.
Response: The agency agrees that the definition should align with statute. At adoption, the definition of ECHS in §102.1091(a)(7) and conditions of ECHS program operation listed in §102.1091(e)(1)(B) were revised to include the requirement that students must have the opportunity to earn an academic associate degree with a completed field of study curriculum, as defined by TEC, §61.823.
SUBCHAPTER GG. COMMISSIONER'S RULES CONCERNING COLLEGE AND CAREER READINESS SCHOOL MODELS
19 TAC §§102.1091, 102.1093, 102.1095
STATUTORY AUTHORITY. The repeal is adopted under Texas Education Code (TEC), §29.553, which requires the commissioner of education to establish and administer the Pathways in Technology Early College High School (P-TECH) program; TEC, §29.908, as amended by Senate Bill 1887, 88th Texas Legislature, Regular Session, 2023, which establishes the Early College High School (ECHS) program; and TEC, §29.908(g), which permits the commissioner to adopt rules as necessary to administer the program.
CROSS REFERENCE TO STATUTE. The repeal implements Texas Education Code, §29.553 and §29.908, as amended by Senate Bill 1887, 88th Texas Legislature, Regular Session, 2023.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2024.
TRD-202403564
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 22, 2024
Proposal publication date: April 26, 2024
For further information, please call: (512) 475-1497
STATUTORY AUTHORITY. The new section is adopted under Texas Education Code (TEC), §29.553, which requires the commissioner of education to establish and administer the Pathways in Technology Early College High School (P-TECH) program; TEC, §29.908, as amended by Senate Bill 1887, 88th Texas Legislature, Regular Session, 2023, which establishes the Early College High School (ECHS) program; and TEC, §29.908(g), which permits the commissioner to adopt rules as necessary to administer the program.
CROSS REFERENCE TO STATUTE. The new section implements Texas Education Code, §29.553 and §29.908, as amended by Senate Bill 1887, 88th Texas Legislature, Regular Session, 2023.
§102.1091.College and Career Readiness School Models.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Benchmarks--The standards for program implementation that are included in the blueprints.
(2) Blueprint--The document that outlines the College and Career Readiness School Models (CCRSM) requirements, including benchmarks, design elements, artifacts, and outcomes-based measures.
(3) Business or industry partner--Employers who enter into a formal agreement with a Pathways in Technology Early College High School (P-TECH) to support work-based learning (WBL).
(4) Design elements--The processes, structures, or services within each benchmark that a CCRSM campus must fulfill.
(5) Designated campus--A CCRSM campus with six or more years of implementation that has met outcomes-based measures (OBMs) necessary for designation.
(6) Designated with Distinction campus--A CCRSM campus with seven or more years of implementation that has met Designated with Distinction OBMs.
(7) Early College High School (ECHS)--A school established under Texas Education Code (TEC), §29.908, that enables a student in Grade 9, 10, 11, or 12 who is at risk of dropping out of school, as defined by TEC, §29.081, or who wishes to accelerate completion of high school to combine high school courses and college-level courses. An ECHS program must provide for a course of study that, on or before the fifth anniversary of a student's first day of high school, enables a participating student to receive both a high school diploma and either an applied or academic associate degree, with a completed field of study curriculum, as defined by TEC, §61.823, that is transferable toward a baccalaureate degree at one or more general academic teaching institutions, as defined by TEC, §61.003.
(8) Institution of higher education (IHE)--An institution of higher education has the meaning assigned by TEC, §61.003.
(9) Needs improvement campus--A CCRSM campus with six or more years of implementation that has not met OBMs necessary for designation.
(10) Optional Flexible School Day Program (OFSDP)--A program approved by the commissioner of education to provide flexible hours and days of attendance for eligible students in Grades 9-12, as defined in §129.1027 of this title (relating to Optional Flexible School Day Program).
(11) Outcomes-based measures--The data indicators related to access, achievement, and attainment that a CCRSM campus is required to meet to achieve a status of Designated or Designated with Distinction.
(12) Pathways in Technology Early College High School--A school established under TEC, §29.553, that enables a student in Grades 9, 10, 11, or 12 who is at risk of dropping out of school, as defined by TEC, §29.081, or who wishes to accelerate completion of high school to combine high school and postsecondary courses. A P-TECH program must be open enrollment and provide for a course of study that, on or before the sixth anniversary of a student's first day of high school, enables a participating student to receive both a high school diploma and an associate degree, a two-year postsecondary certificate, or an industry certification, and must include a work-based education program.
(13) Planning campus--A CCRSM campus with zero years of implementation.
(14) Provisional campus--A CCRSM campus with one to five years of implementation.
(15) School district--For the purposes of this section, the definition of school district includes an open- enrollment charter school.
(16) Work-based education program--Practical, hands-on activities or experiences through which a learner interacts with industry professionals in a workplace that may be an in-person, virtual, or simulated setting. Learners prepare for employment or advancement along a career pathway by completing purposeful tasks that develop academic, technical, and employability skills. A work-based education program is also known as work-based learning.
(b) Conditions for approval of CCRSM status.
(1) Conditions for approval of a Planning campus.
(A) Applicant eligibility. Any school district may submit a separate application on behalf of each campus it requests to be considered as a Planning campus.
(B) Application process. A school district must submit each application in accordance with the program application cycle (PAC) procedures determined by the commissioner.
(C) Planning campus timeline. A planning campus shall be eligible to apply for Provisional campus status after the mandatory planning year.
(2) Conditions for approval of a Provisional campus.
(A) Applicant eligibility. Any Planning campus or approved provisional campus may submit an application to be considered as a Provisional campus.
(B) Application process. Any Planning campus or approved Provisional campus must submit each application in accordance with the PAC procedures determined by the commissioner.
(C) Provisional campus timeline. A Provisional campus shall be eligible to apply to renew its status as a Provisional campus yearly for up to five years.
(3) Conditions for approval of a Designated campus.
(A) Applicant eligibility. A Provisional campus entering its fifth year of operation may submit an application on behalf of the campus it requests to be considered as a Designated campus.
(B) Application process. A prospective Designated campus must submit each application in accordance with the PAC procedures determined by the commissioner. Campuses must meet access, achievement, and attainment OBM criteria and implement all design elements in order to receive CCRSM Designated status.
(C) Designated campus timeline. A Designated campus shall be eligible to apply to renew its status as a Designated campus yearly.
(4) Conditions for approval of a Designated with Distinction campus.
(A) Applicant eligibility. A Designated campus may qualify for Designated with Distinction status in one or more of the following OBM distinction criteria areas beginning in its seventh year of operation:
(i) access;
(ii) achievement; and
(iii) attainment.
(B) Application process. A prospective Designated with Distinction campus must submit each application in accordance with the PAC procedures determined by the commissioner. The campus application in the PAC will serve as the Designated with Distinction application. Campuses must meet access, achievement, and attainment designated with distinction OBM criteria and implement all design elements in order to receive CCRSM Designated with Distinction status.
(C) Designated with Distinction campus timeline. A Designated with Distinction campus shall qualify to renew its status as a Designated with Distinction campus yearly.
(c) Needs Improvement and revocation of CCRSM status.
(1) Determination of CCRSM Needs Improvement status. If the conditions of approval for CCRSM Designated status are not met, including failure to meet the required OBM designated criteria, the CCRSM campus will be classified as a CCRSM Needs Improvement campus.
(2) Needs Improvement campus timeline. A Needs Improvement campus is required to remain in the Needs Improvement status for a period of three school years following campus notification of the Needs Improvement status. During the three years of Needs Improvement status, the campus is required to complete the PAC for Needs Improvement progress reports.
(3) Needs Improvement progress monitoring. During the three years of Needs Improvement status, the campus will receive targeted technical assistance at no cost to the CCRSM to improve OBMs.
(4) Fulfillment of CCRSM Needs Improvement requirements. Following completion of the three-year Needs Improvement period and upon successfully meeting the OBM designation criteria, the CCRSM will move out of the Needs Improvement status and into the Designated or Designated with Distinction status.
(5) Revocation of CCRSM status. Following completion of the mandatory three years of Needs Improvement status, if a CCRSM does not successfully meet the OBM designation criteria, the authorization of the campus as a CCRSM will be revoked and the campus will be removed from the CCRSM network.
(d) Notification timeline. TEA will notify each applicant of its selection or non-selection as a CCRSM Planning, Provisional, Designated, Designated with Distinction, or Needs Improvement campus. The designation notification will be sent no later than the summer following the submission of the campus application in the PAC. Campuses selected for Planning, Provisional, Designated, and Designated with Distinction status will be publicly identified on TEA's website and will be identified as such in designation status notification to the district and to the IHE partner listed in the CCRSM PAC. Campuses in Needs Improvement status will not be publicly identified but will be identified as Needs Improvement in the designation status notification sent to the district and to the IHE partner listed in the CCRSM PAC.
(e) Conditions of CCRSM program operation.
(1) As established under TEC, §29.908, an ECHS must:
(A) enable a student in Grade 9, 10, 11, or 12 who is at risk of dropping out of school, as defined by TEC, §29.081, or who wishes to accelerate completion of high school to provide for a course of study that enables a participating student to combine high school courses and college-level courses;
(B) allow participating students to complete high school and enroll in a program at an IHE that will enable a student to, on or before the fifth anniversary of a student's first day of high school, receive a high school diploma and either an applied or academic associate degree, with a completed field of study curriculum, as defined by TEC, §61.823, that is transferable toward a baccalaureate degree at one or more general academic teaching institutions, as defined by TEC, §61.003;
(C) include articulation agreements with colleges, universities, and technical schools in Texas to provide a participating student access to postsecondary educational and training opportunities at a college, university, or technical school; and
(D) provide a participating student flexibility in class scheduling and academic mentoring.
(2) As established under TEC, §29.553, a P-TECH must:
(A) be open enrollment and enable a student in Grade 9, 10, 11, or 12 who is at risk of dropping out of school, as defined by TEC, §29.081, or who wishes to accelerate completion of high school to combine high school courses and postsecondary courses;
(B) provide for a course of study that, on or before the sixth anniversary of a student's first day of high school, enables a participating student to receive both a high school diploma and an associate degree, a two-year postsecondary certificate, or an industry certification and complete work-based training;
(C) include articulation agreements with colleges, universities, and technical schools in Texas to provide a participating student access to postsecondary educational and training opportunities at a college, university, or technical school;
(D) include a memorandum of understanding with regional business or industry partners to provide a participating student access to work-based training;
(E) include in each memorandum of understanding with a regional business or industry partner an agreement that the regional business or industry partner will give to a student who receives work-based training from the partner under the P-TECH program first priority in interviewing for any jobs for which the student is qualified that are available on the students' completion of the program; and
(F) provide a participating student flexibility in class scheduling and academic mentoring.
(3) The CCRSM must comply with all the requirements outlined in the CCRSM blueprints. If a CCRSM chooses to discontinue CCRSM operations, the CCRSM must ensure previously enrolled CCRSM students will have the opportunity to complete their course of study. The CCRSM must notify TEA of its decision to discontinue operations and submit an official letter from the district superintendent with the district decision.
(4) A school district operating a CCRSM program must comply with all assurances included in the program application submitted through the PAC. If the CCRSM changes the location of the CCRSM, the CCRSM model, or the IHE partner outside of the PAC, the CCRSM must notify TEA of the change.
(5) CCRSM approval is valid for a maximum of one school year.
(6) The CCRSM program must be provided at no cost to CCRSM students. A student enrolled in a CCRSM program may not be required to pay for tuition, fees, or required textbooks for any coursework. The school district in which the student is enrolled shall pay for tuition, fees, and required textbooks, to the extent those charges are not waived by the IHE.
(7) P-TECH Year 5 and 6 students are not counted for accountability purposes.
(f) Programs available to an approved CCRSM.
(1) Approval as a CCRSM will allow a campus to access programs available to CCRSM programs.
(2) An approved CCRSM campus may access the OFSDP defined in §129.1027 of this title. An approved CCRSM campus is eligible for OFSDP but must apply separately in accordance with TEC, §29.0822, and procedures established by the commissioner.
(3) Approval as a P-TECH will allow a campus to access programs available to the P-TECH, including participation in a Year 5 and Year 6 P-TECH program.
(4) P-TECH Year 5 and 6 students are not counted for accountability purposes.
(g) Evaluation of a CCRSM program. Evaluation of the CCRSM program will occur through the PAC and using self-reported data provided by the campus to generate OBM data. Progress monitoring will also occur at the campus level through campus coaching provided through state-appointed technical assistance.
(h) Revocation of authority.
(1) The commissioner may deny renewal or revoke the authorization of a CCRSM program based on the following factors:
(A) noncompliance with application assurances and/or the provisions of this section;
(B) lack of program success as evidenced by progress reports and program OBM data;
(C) failure to meet performance standards specified in the application and/or CCRSM blueprints; or
(D) failure to provide accurate, timely, and complete information as required by TEA to evaluate the effectiveness of the CCRSM program.
(2) A decision by the commissioner to deny renewal as or revoke authorization of a CCRSM is final and may not be appealed.
(3) The commissioner may impose sanctions on a school district as authorized by TEC, Chapters 39 and 39A, for failure to comply with the requirements of this section.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2024.
TRD-202403565
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 22, 2024
Proposal publication date: April 26, 2024
For further information, please call: (512) 475-1497
The Texas Education Agency adopts new §102.1097, concerning postsecondary preparation programs. The new section is adopted with changes to the proposed text as published in the April 26, 2024, issue of the Texas Register (49 TexReg 2611) and will be republished. The adopted new section implements House Bill (HB) 8, 88th Texas Legislature, Regular Session, 2023, by establishing provisions for the Financial Aid for Swift Transfer (FAST) program.
REASONED JUSTIFICATION: HB 8, 88th Texas Legislature, Regular Session, 2023, established the FAST program to allow eligible students to enroll, at no cost to the student, in dual credit courses at participating institutions of higher education.
New §102.1097 implements HB 8 by defining the requirements a school district must meet each school year to report educationally disadvantaged students for the purposes of the FAST program.
New subsection (a) identifies the purpose of the FAST program, and new subsection (b) includes relevant definitions.
New subsections (c) and (d) clarify the methods school districts and open-enrollment charter schools may use to determine student eligibility for the FAST program. Based on public comment, the definition of student eligibility in subsection (c) was revised to specify that a student who is educationally disadvantaged at any time during the four school years preceding the students' enrollment in a dual credit class is eligible for the FAST program.
New subsection (e) explains the relationship between the Community Eligibility Provision and determining individual student eligibility status.
New subsection (f) establishes the responsibility of school districts to obtain appropriate data needed from families to determine eligibility, verify information, and retain records.
New subsection (g) states that the commissioner has the discretion to conduct an audit of data as it relates to the FAST program.
New subsection (h) clarifies that the eligibility of students participating in the FAST program will be based on Texas Student Data System Public Education Information Management System (TSDS PEIMS) data submissions.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 26, 2024, and ended May 27, 2024. Following is a summary of public comments received and agency responses.
Comment: The Commit Partnership and seven supporting organizations, including the Texas Business Leadership Council, The Education Trust, the Longview Chamber of Commerce, Texas 2036, Teach Plus, the Greater Houston Partnership, and Educate Texas, noted that the proposed rule does not provide the full criteria for FAST student eligibility as defined in HB 8, 88th Texas Legislature, Regular Session, 2023; specifically, the criterion that a student who is educationally disadvantaged at any time during the four school years preceding the students' enrollment in the dual credit course is eligible for FAST. The Commit Partnership and the supporting organizations asked the agency to revise the criteria for FAST student eligibility to include the four-year lookback to ensure every student who is eligible for FAST receives funding.
Response: The agency agrees that the rule should align with statute. At adoption, the definition of student eligibility for FAST listed in §102.1097(c) was revised to specify that a student who is educationally disadvantaged at any time during the four school years preceding the students' enrollment in a dual credit class is eligible for the FAST program.
STATUTORY AUTHORITY. The new section is adopted under Texas Education Code (TEC), §28.0095(b), as added by House Bill 8, 88th Texas Legislature, Regular Session, 2023, which requires the Texas Education Agency and the Texas Higher Education Coordinating Board (THECB) to jointly establish the Financial Aid for Swift Transfer (FAST) program to allow eligible students to enroll, at no cost to the student, in dual credit courses at participating institutions of higher education. TEC, §28.0095(j), requires the commissioner and THECB to adopt rules as necessary to implement the FAST program.
CROSS REFERENCE TO STATUTE. The new section implements Texas Education Code, §28.0095(b) and (j), as added by House Bill 8, 88th Texas Legislature, Regular Session, 2023.
§102.1097.Financial Aid for Swift Transfer Program.
(a) Purpose. The Financial Aid for Swift Transfer (FAST) program is established to allow eligible students to enroll, at no cost to the student, in dual credit courses at participating institutions of higher education.
(b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Dual credit course--A course offered for joint high school and junior college credit under Texas Education Code (TEC), §130.008, or another course offered by an institution of higher education for which a high school student may earn credit toward satisfaction of:
(A) a requirement necessary to obtain an industry-recognized credential or certificate or an associate degree;
(B) a foreign language requirement at an institution of higher education;
(C) a requirement in the core curriculum, as that term is defined by TEC, §61.821, at an institution of higher education; or
(D) a requirement in a field of study curriculum developed by the Texas Higher Education Coordinating Board under TEC, §61.823.
(2) Institution of higher education--An institution of higher education has the meaning assigned by TEC, §61.003.
(c) Student eligibility. A student who is educationally disadvantaged at any time during the four school years preceding the students' enrollment in a dual credit course is eligible for the FAST program. To be considered educationally disadvantaged, a student must meet the income requirements for eligibility under the National School Lunch Program (NSLP), authorized by 42 United States Code, §§1751, et seq. School districts and open-enrollment charter schools may use the following approved methods for determining student eligibility for the FAST program:
(1) parent certification, where the parent or guardian asserts meeting the income requirements for eligibility under this subsection;
(2) direct certification, where eligible children are certified for free meals without the need for a household application based on household participation in one or more federal assistance programs; or
(3) direct verification, where public records are used to verify a student's eligibility for free or reduced-price meals when verification of student eligibility is required.
(d) Student eligibility under an alternative method. School districts and open-enrollment charter schools with one or more campuses not participating in the NSLP may derive an eligible student count by an alternative method as determined by the Texas Education Agency (TEA).
(e) Community Eligibility Provision (CEP). School districts and open-enrollment charter schools with one or more campuses using the CEP must still determine each student's individual eligibility status under the income guidelines for the NSLP for purposes of the FAST program.
(f) Recordkeeping. School districts and open-enrollment charter schools that participate in the FAST program pursuant to this section are responsible for obtaining the appropriate data from families of potentially eligible students, verifying that information, and retaining records.
(g) Auditing procedures. TEA will conduct an audit of data submitted by school districts and open-enrollment charter schools that participate in the FAST program pursuant to this section at the discretion of the commissioner of education.
(h) Data source. The FAST program will be based on each eligible student submitted by school districts and open-enrollment charter schools in the Texas Student Data System Public Education Information Management System fall submission. An indicator must be submitted for every educationally disadvantaged student and each student coded with average daily attendance (ADA) eligibility, except those students who are homeless, not enrolled, or otherwise ineligible for ADA or who reside in a residential facility and whose parents live outside the district.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 2, 2024.
TRD-202403566
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 22, 2024
Proposal publication date: April 26, 2024
For further information, please call: (512) 475-1497