PART 2. TEXAS EDUCATION AGENCY
CHAPTER 89. ADAPTATIONS FOR SPECIAL POPULATIONS
SUBCHAPTER BB COMMISSIONER'S RULES CONCERNING STATE PLAN FOR EDUCATING ENGLISH LANGUAGE LEARNERS
The Texas Education Agency (TEA) adopts amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1210, 89.1215, 89.1220, 89.1226-89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, and 89.1265, concerning the state plan for educating English learners. The amendments to §§89.1201, 89.1203, 89.1205, 89.1207, 89.1227-89.1230, 89.1233, 89.1235, 89.1240, 89.1245, 89.1250, and 89.1265 are adopted without changes to the proposed text as published in the April 21, 2023 issue of the Texas Register (48 TexReg 2023) and will not be republished. The amendments to §§89.1210, 89.1215, 89.1220, and 89.1226 are adopted with changes to the proposed text as published in the April 21, 2023 issue of the Texas Register (48 TexReg 2023) and will be republished. The adopted amendments align terminology with Senate Bill (SB) 2066, 87th Texas Legislature, Regular Session, 2021, and clarify policies and procedures for the education of emergent bilingual students and related program implementation.
REASONED JUSTIFICATION: In accordance with Texas Education Code, Chapter 29, Subchapter B, Bilingual Education and Special Language Programs, the commissioner has exercised rulemaking authority to establish rules to guide the implementation of bilingual education and special language programs. The commissioner's rules in Chapter 89, Subchapter BB, establish the policy that every student in the state who has a primary language other than English and who is identified as an emergent bilingual student must be provided a full opportunity to participate in a bilingual education or English as a second language (ESL) program. These rules outline the requirements of the bilingual education and ESL programs, including program content and design, home language survey, the language proficiency assessment committee (LPAC), testing and classification, facilities, parental authority and responsibility, staffing and staff development, required summer school programs, and evaluation.
The adopted amendments to Chapter 89, Subchapter BB, implement SB 2066, 87th Texas Legislature, Regular Session, 2021, by updating the term "English learner" to "emergent bilingual student" throughout the rules. The amendments also provide clarification and make technical edits. In addition, the following changes have been made.
Section 89.1201, Policy, has been amended to more clearly identify the academic and linguistic progress expected of emergent bilingual students and the methods by which that progress is achieved.
Section 89.1203, Definitions, has been amended by adding new definitions and expanding others to ensure consistency, accuracy, and clarity for school districts.
Section 89.1205, Required Bilingual Education and English as a Second Language Programs, has been amended to include updated terminology in alignment with SB 2066.
Section 89.1207, Bilingual Education Exceptions and English as a Second Language Waivers, has been amended to include updated terminology in alignment with SB 2066.
Section 89.1210, Program Content and Design, has been amended to include updated terminology in alignment with SB 2066 and to provide clarity related to approved program models. Based on public comment noting an inadvertent omission, subsection (b)(2)(A) has been revised at adoption. Regarding the linguistic needs of a bilingual program, a statement has been added to specify that the English language proficiency standards are to be taught in conjunction with the Texas Essential Knowledge and Skills, which aligns with the same requirement for ESL programs.
Section 89.1215, Home Language Survey, has been amended to confirm that the original home language survey shall serve as the only survey that should be kept in a student's permanent record and transferred to any subsequent district in which the student enrolls. This section also includes an additional question to ensure a holistic understanding of a child's first language. The amendment clarifies the process for a parent to request a correction to the home language survey. Based on public comment, changes have been made at adoption to subsection (b)(1)-(3) to simplify the questions asked on the home language survey. The questions will now ask which languages are used at home; which languages are used by the child at home; and if the child had a previous home setting, which languages were used.
Section 89.1220, Language Proficiency Assessment Committee, has been amended to include alternative meeting methods as well as allow for the use of electronic signatures. Subsection (g) explicitly states when and for whom the LPAC should review all pertinent information. Subsection (k) includes more details to support LPAC decisions regarding reconsideration for program participation after reclassification. These changes incorporate stakeholder feedback from school districts and align with terminology used in SB 2066. Based on public comment, a change to subsection (g)(1)(B) has been made at adoption to require that the LPAC recommend, rather than designate, the initial instructional placement. The LPAC's recommendation is still subject to parental approval. A similar change, based on public comment, has been made in subsection (g)(3)(D) to require the LPAC to recommend, rather than determine, exit from program.
Section 89.1226, Testing and Classification of Students, has been amended to update language and emphasize access to multiple programs for dual-identified students. Subsection (b) clarifies that the state-approved English language proficiency test must be administered within four calendar weeks of initial enrollment. Subsection (i) changes how a student can be reclassified as English proficient by requiring a composite proficiency rating in the areas of listening, speaking, reading, and writing rather than a proficiency rating in each of the four language domains. Subsection (k) clarifies that an emergent bilingual student may still be able to be reclassified if there are designated supports for non-linguistic purposes recommended by a committee other than the LPAC. In addition, further clarification has been added regarding the individualized reclassification process for an emergent bilingual student with a severe cognitive disability. These changes address clarification requested by school districts and align the section with the agency's policies on special education and assessment. A change to subsection (b) has been made at adoption to specify that a student shall be recommended for placement, rather than placed, into a required bilingual or ESL program after being identified as emergent bilingual. Based on public comment, a change to subsection (h) has been made at adoption to require the LPAC to recommend, rather than determine, placement. Finally, also based on public comment, a similar change to subsection (m) has been made at adoption to specify that the LPAC may recommend, rather than determine, that the state's assessments are not appropriate for students with significant cognitive disabilities.
Section 89.1227, Minimum Requirements for Dual Language Immersion Program Model, has been amended to use the term "partner language" and to include the development of the program's language allocation plan. Clarification is provided on the inclusion of former emergent bilingual students who have reclassified as English proficient for the duration of the program. Additionally, the amendment specifies that emergent bilingual students' access to dual language programs must not be restricted based on linguistic or academic measures in the partner language or English. These changes incorporate stakeholder feedback from school districts.
Section 89.1228, Two-Way Dual Language Immersion Program Model Implementation, has been amended to include a statement about access not being restricted for emergent bilingual students or non-emergent bilingual students based on linguistic or achievement measures in the partner language or English. The amendment also clarifies the district's commitment to program continuity. These changes incorporate stakeholder feedback from school districts.
Section 89.1229, General Standards for Recognition of Dual Language Immersion Program Models, has been amended to update language reflective of the Results Driven Accountability system.
Section 89.1230, Eligible Students with Disabilities, has been amended to more clearly explain the roles of the LPAC and the admission, review, and dismissal committee in the identification and monitoring of dual-identified students in an effort to align processes across the state.
Section 89.1233, Participation of English Proficient Students, has been amended to use the new term "non-emergent bilingual" for students who have never been identified as emergent bilingual students and clarify that non-emergent bilingual students may not make up more than 40% of the total bilingual education program students districtwide.
Section 89.1235, Facilities, has been amended to align with terminology of SB 2066.
Section 89.1240, Parental Authority and Responsibility, has been amended to include updated terminology in alignment with SB 2066 and provide explicit procedures for parental approvals, program changes, and parental denials.
Section 89.1245, Staffing and Staff Development, has been amended to clarify the use of Bilingual Education Allotment funds for salary supplements.
Section 89.1250, Required Summer School Programs, has been amended to include updated terminology in alignment with SB 2066.
Section 89.1265, Evaluation, has been amended to include updated terminology in alignment with SB 2066. The section title has also been amended to provide clarity on the contents of the section.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began April 21, 2023, and ended May 22, 2023. Following is a summary of public comments received and agency responses.
§89.1201, Policy
Comment: One teacher and two school administrators indicated disapproval of measuring both linguistic and academic progress of students.
Response: The agency disagrees. The state adheres to federal requirements in relation to measuring progress of emergent bilingual students.
§89.1203, Definitions
Comment: Ten administrators, one teacher, and a community member indicated disagreement on the organization within §89.1203 and disapproval of the use of various terms used in the definitions, such as temporary, primary language, English proficient, and emergent bilingual.
Response: The agency disagrees. Emergent bilingual is a statutory term provided in the Texas Education Code. Any changes in the use of that term would require legislative action. The other terms are either commonly used terms or terms used in other state and federal regulations and guidance.
Comment: A school administrator and a lobbyist asked that more specific language be added on how the funding should be tied to effective implementation of dual language programs and those under an alternative language program instead of teacher certifications.
Response: The agency disagrees that a change is needed. The monitoring of program implementation would require a legislative change.
§89.1205, Required Bilingual Education and English as a Second Language Programs
Comment: One administrator noted support for changes in the home language survey and requested a change to address bilingual programs at Grade 6 when Grade 6 is housed at an elementary campus.
Response: The agency disagrees that a change is necessary at this time but will investigate whether future guidance can be provided on this topic.
§89.1207, Bilingual Education Exceptions and English as a Second Language Waivers
Comment: One administrator voiced disapproval that all teachers are not required to have an ESL certification and stated that if certification was required, it would reduce the need for waiver requests.
Response: This comment is outside the scope of the proposed rulemaking. In addition, a change requiring certification would require legislative action.
Comment: One lobbyist suggested having a streamlined process for submitting and approving exceptions and waivers and recommended removing the spending requirement of using 10% of bilingual education allotment funds. The commenter offered suggestions to improve the waiver process.
Response: The agency disagrees that additional detail is necessary for the rule but intends to provide guidance and training on a cyclical process for exceptions and waivers. The agency also disagrees with modifying the spending requirement because it would require a legislative change.
§89.1210, Program Content and Design
Comment: One administrator requested that changes be made in addition to changes that were made under House Bill (HB) 3, 86th Texas Legislature, 2019.
Response: The comment is outside the scope of the proposed rulemaking as the agency cannot change law.
Comment: One administrator sought clarity on the term "pull-out" and requested a change if it was not referring to pulling students out of a classroom.
Response: The agency disagrees that a change is necessary. The term "pull-out" is referring to a state-approved program and the certification of ESL teachers serving emergent bilingual students as defined in §89.1210(d)(2). Renaming the program model would require a legislative change.
Comment: One administrator and the Texas Public Charter Schools Association (TPCSA) made recommendations to include English development through the English language proficiency standards (ELPS) in the linguistic section.
Response: The agency agrees and has made a change to §89.1210(b)(2)(A) at adoption to state that for bilingual programs, the ELPS are used in conjunction with the Texas Essential Knowledge and Skills in the English language. This statement was inadvertently omitted with the proposed amendment, and the change now aligns with the same statement related to ESL programs.
Comment: One individual stated the sentence structure and word order should be modified throughout §89.1210.
Response: The agency disagrees and has determined that changes to sentence structure and word order are unnecessary.
§89.1215, Home Language Survey
Comment: Two administrators and one community member posed questions related to implementation of the changes to §89.1215 and expectations for local education agencies when providing guidance to families providing the language(s) spoken at home and by the child.
Response: The agency provides the following clarification. The agency intends to provide guidance and training on the implementation of the amended rules once they become effective.
Comment: Two administrators commented in support of the changes to the home language survey.
Response: The agency agrees that the changes are necessary. In response to other comments, the rule was modified at adoption to simplify the questions asked on the home language survey.
Comment: Four teachers, twenty-three school administrators, one lobbyist, and one parent expressed concerns that the language of the home language survey questions and the inclusion of the third question would be confusing for families and difficult to translate.
Response: The agency agrees that further clarification is necessary. While the agency has determined that the third question is necessary, changes have been made at adoption to simplify the way in which the questions are asked.
§89.1220, Language Proficiency Assessment Committee
Comment: Five administrators suggested clarifying the terminology pertaining to an LPAC's authority from "determining" to "recommending."
Response: The agency agrees and has modified §89.1220(g)(1)(B) and (3)(D) at adoption to replace the terms "designate" and "determine" with "recommend." Conforming edits were made to §89.1226(b), (h), and (m).
Comment: One parent, four school administrators, and one teacher asked clarifying questions or made procedural suggestions on the parent role in LPAC meetings.
Response: The agency disagrees that changes are necessary to the rule text but will continue to provide additional guidance and training on the required members and their roles.
§89.1226, Testing and Classification of Students
Comment: Three parents, forty-seven school administrators, and thirty-seven teachers commented that moving to a composite score is a positive change.
Response: The agency agrees.
Comment: Ten administrators and five teachers requested that the agency reconsider the inclusion of State of Texas Assessments of Academic Readiness (STAAR®) results as a component of reclassification criteria.
Response: The comments are outside the scope of the proposed rulemaking as any changes related to STAAR® requirements would require legislative action.
Comment: One parent, three administrators, and three teachers disapproved of the speaking portion and other logistical aspects of the Texas English Language Proficiency Assessment System administration.
Response: The comments are outside the scope of the proposed rulemaking.
Comment: One community member, five school administrators, and three teachers asked for additional resources and guidance on the reclassification of emergent bilingual students.
Response: The agency disagrees that any changes are necessary to the rule to address reclassification, but the agency will continue to provide resources and guidance, including after the amended rules become effective.
§89.1227, Minimum Requirements for Dual Language Immersion Program Model
Comment: Two administrators asked for clarification or additional resources for dual language immersion programs focusing on emergent bilingual students when implementing a one-way program and especially with a two-way program.
Response: The agency disagrees that additional information on dual language immersion programs should be included in the rule, but the agency continuously seeks to develop tools and resources commensurate with its regulatory authority.
Comment: One teacher voiced general support for prioritization of the needs of emergent bilingual students.
Response: The agency agrees.
Comment: One individual suggested changing the sentence structure in §89.1227.
Response: The agency disagrees and has determined that changes to the sentence structure are unnecessary.
§89.1228, Two-Way Dual Language Immersion Program Model Implementation
Comment: Four administrators and one lobbyist commented generally on the participation/access of non-emergent bilingual students in two-way program models.
Response: The agency disagrees that the rule should be modified to address participation/access of non-emergent bilingual students in two-way program models, but the agency will continue to provide guidance and resources, including after the amended rules become effective.
§89.1229, General Standards for Recognition of Dual Language Immersion Program Models
Comment: One administrator asked how language would be reflective for non-English speakers.
Response: This comment is outside the scope of the proposed rulemaking.
§89.1230, Eligible Students with Disabilities
Comment: One administrator and two teachers expressed concerns related to students with disabilities and the reclassification criteria that students need to meet to participate in academic programs.
Response: The agency provides the following clarification. The agency's rules are in alignment with current federal and state law, and the agency will continue to provide necessary resources and guidance.
§89.1233, Participation of English Proficient Students
Comment: One administrator asked that additional resources be provided for emergent bilingual students when being identified with special needs.
Response: The agency provides the following clarification. The agency will continue to provide guidance and resources, including after the amended rules become effective.
§89.1235, Facilities
Comment: One individual commented that there should be a reasonability factor included in terms of mileage when districts concentrate their programs at a limited number of facilities.
Response: The agency disagrees. The issue addressed by the commenter would be expected to be a topic discussed as district decisions are made.
§89.1240, Parental Authority and Responsibility
Comment: One administrator and one community member called for the need to provide clear guidance on parental authority and responsibilities.
Response: The agency disagrees that the suggested guidance should be included in the rule, but the agency will continue to provide guidance and resources, including after the amended rules become effective.
Comment: One administrator asked if school districts have to use TEA-developed letters or if they could get those letters from other platforms.
Response: The agency provides the following clarification. Once TEA develops forms, districts will be expected to use the agency-developed letters.
§89.1245, Staffing and Staff Development
Comment: One administrator asked for clarification regarding the use of bilingual education allotment funds to be used for supplemental teacher pay and whether it includes non-certified bilingual/ESL teachers.
Response: The agency disagrees that the suggested clarification should be included in the rule, but the agency will continue to provide guidance and resources, including after the amended rules become effective.
§89.1250, Required Summer School Programs
Comment: Three administrators commented on the 120-hour rule, citing difficulty in implementation.
Response: The agency disagrees that changes are necessary to the rule at this time, but the agency will consider this comment when developing future guidance or in future rulemaking.
Comment: One individual stated that the sentence structure in §89.1250 needed to be revised.
Response: The agency disagrees and has determined that changes to the sentence structure are unnecessary.
§89.1265, Evaluation
Comment: One community member asked clarifying questions on the requirement that a student's language development be added in program evaluation and parent notification.
Response: The agency disagrees that clarification should be provided in rule, but the agency will continue to provide guidance and resources, including after the amended rules become effective.
General comments
Comment: One parent, nineteen school administrators, one community member, and twenty-six teachers reported general support for the proposed rules.
Response: The agency agrees.
Comment: TPCSA expressed that the agency has interpreted language in HB 3 from the 2019 legislative session to mean that in certain instances where a waiver is approved for non-certified bilingual teachers, qualifying students do not generate the .05 weight. TPCSA recommended that the agency follow the legislative intent of HB 3.
Response: This comment is outside the scope of the proposed rulemaking.
Comment: One administrator expressed that a minimum number of minutes daily or weekly should be required to hold districts accountable to guarantee student progress.
Response: The agency disagrees and has determined that a minimum number of minutes should not be required through this rule action.
Comment: One administrator expressed that an August 8 implementation date for the rules would put a burden on districts.
Response: The agency provides the following clarification. The amended rules are required to go through the rulemaking process prescribed by law, and an effective date earlier than August 8 is not feasible.
STATUTORY AUTHORITY. The amendments are adopted under Texas Education Code (TEC), §29.053, which establishes the requirement of bilingual programs at elementary grades, and other special language programs such as English as a second language; TEC, §29.055, which requires bilingual programs and other special language programs to consider students' learning experiences and incorporate cultural aspects of the students' backgrounds; TEC, §29.058, which allows the participation of students who are not identified as emergent bilingual students to participate in a bilingual program; however, the percentage of non-emergent bilingual students may not exceed 40% of the number of students enrolled in the program; TEC, §29.060, which requires school districts to offer a bilingual education or special language program that is voluntary for emergent bilingual students entering Kindergarten or Grade 1; TEC, §29.062, which requires school districts comply with state policy in areas including: program content and design, program coverage, identification procedures, classification procedures, staffing, learning and testing materials, reclassification and the activities of the language proficiency assessment committees; and TEC, §29.063, which requires the establishment of a language proficiency assessment committee.
CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§29.053, 29.055, 29.058, 29.060, 29.062, and 29.063.
§89.1210.Program Content and Design.
(a) Each school district required to offer a bilingual education or English as a second language (ESL) program shall provide each emergent bilingual student the opportunity to be enrolled in the required program at his or her grade level. Each student's level of proficiency shall be designated by the language proficiency assessment committee (LPAC) in accordance with §89.1220(g) of this title (relating to Language Proficiency Assessment Committee). The school district shall accommodate the instruction, pacing, and materials to ensure that emergent bilingual students have a full opportunity to master the essential knowledge and skills of the required curriculum, which includes the Texas Essential Knowledge and Skills (TEKS) and English language proficiency standards (ELPS). Students participating in the bilingual education program may demonstrate their mastery of the essential knowledge and skills in either their primary language or in English for each content area.
(1) A bilingual education program of instruction established by a school district shall be a full-time program of dual-language instruction (English and primary language) that provides for learning academic and literacy skills in the primary language of the students enrolled in the program and for carefully structured and sequenced mastery of English language skills under Texas Education Code (TEC), §29.055(a).
(2) An ESL program of instruction established by a school district shall be a program of intensive instruction in English in which ESL teachers recognize and address language differences in accordance with TEC, §29.055(a).
(b) The bilingual education program and ESL program shall be integral parts of the general educational program required under Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, ELPS, and college and career readiness standards. In bilingual education programs, school districts shall purchase instructional materials in both program languages with the district's instructional materials allotment or otherwise acquire instructional materials for use in bilingual education classes in accordance with TEC, §31.029(a). Instructional materials for bilingual education programs on the list adopted by the commissioner of education, as provided by TEC, §31.0231, may be used as curriculum tools to enhance the learning process. The school district shall provide for ongoing coordination between the bilingual/ESL program and the general educational program. The bilingual education and ESL programs shall address the affective, linguistic, and cognitive needs of emergent bilingual students as follows.
(1) Affective.
(A) Emergent bilingual students in a bilingual program shall be provided instruction using content-based language instructional methods and/or their primary language to acclimate students to the school environment and to develop academic language skills, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to consider the students' learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).
(B) Emergent bilingual students in an ESL program shall be provided instruction using content-based language instructional methods in English to acclimate students to the school environment and to develop academic language skills, which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall be designed to incorporate the students' primary languages and learning experiences and shall incorporate the cultural aspects of the students' backgrounds in accordance with TEC, §29.055(b).
(2) Linguistic.
(A) Emergent bilingual students in a bilingual program shall be provided targeted and intentional academic language instruction to develop proficiency in listening, speaking, reading, and writing in both English and their primary language. The instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects, providing individualized linguistically accommodated content instruction commensurate with the students' language proficiency levels. The ELPS student expectations are provided for English development in conjunction with the TEKS.
(B) Emergent bilingual students in an ESL program shall be provided targeted and intentional academic language instruction to develop proficiency in listening, speaking, reading, and writing in the English language. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects, providing individualized linguistically accommodated content instruction commensurate with the students' language proficiency levels. The ELPS student expectations are provided for English development in conjunction with the TEKS.
(3) Cognitive.
(A) Emergent bilingual students in a bilingual program shall be provided instruction in reading and language arts, mathematics, science, and social studies in both their primary language and English, using content-based language instructional methods in either their primary language, English, or both, depending on the program model(s) implemented by the district. The content area instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills in all subjects.
(B) Emergent bilingual students in an ESL program shall be provided instruction in English in reading and language arts, mathematics, science, and social studies using content-based language instructional methods. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher-order thinking skills.
(c) The bilingual education program shall be implemented through at least one of the following program models.
(1) Transitional bilingual/early exit is a bilingual program model in which students identified as emergent bilingual students are served in both English and the students' primary language and are prepared to meet reclassification criteria to be successful in English instruction with no second language acquisition supports not earlier than two or later than five years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(1), for the assigned grade level and content area. The goal of early-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language and English using content-based language instruction methods.
(2) Transitional bilingual/late exit is a bilingual program model in which students identified as emergent bilingual students are served in both English and the students' primary language and are prepared to meet reclassification criteria to be successful in English instruction with no second language acquisition supports not earlier than six or later than seven years after the student enrolls in school. Instruction in this program is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061(b)(2), for the assigned grade level and content area. The goal of late-exit transitional bilingual education is for program participants to use their primary language as a resource while acquiring full proficiency in English. This model provides instruction in literacy and academic content through the medium of the students' primary language and English through content-based language instruction.
(3) Dual language immersion/one-way is a bilingual/biliteracy program model in which students identified as emergent bilingual students are served in both English and the program's partner language and are prepared to meet reclassification criteria in order to be successful in English instruction with no second language acquisition supports not earlier than six or later than seven years after the student enrolls in school. Instruction provided in the partner language and English is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. When the instructional time for both the partner language and English is 50%, a paired-teaching arrangement may be utilized in which instruction provided in English may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. The goal of one-way dual language immersion is for program participants to attain bilingualism and biliteracy in English and the partner language. This model provides ongoing instruction in literacy and academic content through content-based language instruction in English as well as the students' primary language, with at least half of the instruction delivered in the students' primary language for the duration of the program.
(4) Dual language immersion/two-way is a bilingual/biliteracy program model in which students identified as emergent bilingual students are integrated with non-emergent bilingual students and are served in both English and the program's partner language and are prepared to meet reclassification criteria in order to be successful in English instruction with no second language acquisition supports not earlier than six or later than seven years after the student enrolls in school. Instruction provided in English and the partner language is delivered by a teacher appropriately certified in bilingual education under TEC, §29.061. When the instructional time for both the partner language and English is 50%, a paired-teaching arrangement may be utilized in which instruction provided in English may be delivered either by a teacher appropriately certified in bilingual education or by a different teacher certified in ESL in accordance with TEC, §29.061. The goal of two-way dual language immersion is for program participants to attain bilingualism and biliteracy in English as well as the partner language. This model provides ongoing instruction in literacy and academic content through content-based language instruction in English and the partner language with at least half of the instruction delivered in the partner language for the duration of the program.
(d) The ESL program shall be implemented through one of the following program models.
(1) An ESL/content-based program model is an English acquisition program that serves students identified as emergent bilingual students through English instruction provided by a teacher appropriately certified in ESL under TEC, §29.061(c), using content-based language instruction methods in reading and language arts, mathematics, science, and social studies. The goal of content-based ESL is for emergent bilingual students to attain full proficiency in English in order to participate equitably in school.
(2) An ESL/pull-out program model is an English acquisition program that serves students identified as emergent bilingual students through English instruction using content-based language instruction methods provided by an appropriately certified ESL teacher under TEC, §29.061(c), through English reading and language arts in a pull-out or inclusionary delivery setting. The goal of ESL pull-out is for emergent bilingual students to attain full proficiency in English in order to participate equitably in school.
(e) Except in the courses specified in subsection (f) of this section, content-based language instructional methods, which may involve the use of the students' primary language, may be provided in any of the courses or electives required for promotion or graduation to assist students identified as emergent bilingual students to master the essential knowledge and skills for the required subject(s). The use of content-based language instruction shall not impede the awarding of credit toward meeting promotion or graduation requirements.
(f) In subjects such as art, music, and physical education, emergent bilingual students shall participate with their non-emergent bilingual peers in general education classes provided in the subjects. As noted in TEC, §29.055(d), elective courses included in the curriculum may be taught in a partner language. The school district shall ensure that emergent bilingual students enrolled in bilingual education and ESL programs have a meaningful opportunity to participate with non-emergent bilingual peers in all extracurricular activities.
(g) The required bilingual education or ESL program shall be provided to every emergent bilingual student with parental approval until such time that the student meets reclassification criteria as described in §89.1226(i) of this title (relating to Testing and Classification of Students) or graduates from high school. Parental approval is required when the LPAC recommends continued dual language immersion program participation beyond reclassification.
§89.1215.Home Language Survey.
(a) For each new student enrolling for the first time in a Texas public school in any grade from prekindergarten through Grade 12, the Texas Education Agency (TEA)-developed home language survey shall be administered. This home language survey will serve as the original and only home language survey throughout the student's educational experience in Texas public schools. School districts shall require that the survey be signed by the student's parent for each student in prekindergarten through Grade 8 or by the student in Grades 9-12 as permitted under Texas Education Code, §29.056(a)(1). It is the school district's responsibility to ensure that the student's parent understands the language used in the survey and its implications. The original copy of the survey shall be kept in the student's permanent record and transferred to any subsequent Texas public school districts in which the student enrolls.
(b) The TEA-developed home language survey shall be administered in English and a language that the parents can understand. The home language survey shall include the following questions.
(1) "Which languages are used at home?"
(2) "Which languages are used by the child at home?"
(3) "If the child had a previous home setting, which languages were used? If there was no previous home setting, answer Not Applicable (N/A)."
(c) If any response on the home language survey indicates that a language other than English is or was used for communication, the student shall be tested in accordance with §89.1226 of this title (relating to Testing and Classification of Students).
(d) For students previously enrolled in a Texas public school, the receiving district shall secure the student records, including the original home language survey and language proficiency assessment committee documentation as described in §89.1220(l) of this title (relating to Language Proficiency Assessment Committee), as applicable. All attempts to contact the sending district to request records shall be documented. Multiple attempts to obtain the student's original home language survey shall be made.
(e) If a parent determines an error was made when completing the original home language survey, the parent may request a correction only if:
(1) the student has not yet been assessed for English proficiency; and
(2) corrections are made within two calendar weeks of the student's initial enrollment date in Texas public schools.
§89.1220.Language Proficiency Assessment Committee.
(a) School districts shall by local board policy establish and operate one or more language proficiency assessment committees (LPACs). The school district shall have on file a policy and procedures for the selection, appointment, and orientation of members of the LPAC(s).
(b) The LPAC shall include an appropriately certified bilingual educator (for students served through a bilingual education program), an appropriately certified English as a second language (ESL) educator (for students served through an ESL program), a parent of an emergent bilingual student participating in a bilingual or ESL program, and a campus administrator in accordance with Texas Education Code (TEC), §29.063.
(c) In addition to the three required members of the LPAC, the school district may add other trained members to the committee.
(d) No parent serving on the LPAC shall be an employee of the school district.
(e) A school district shall establish and operate a sufficient number of LPACs to enable them to discharge their duties within four weeks of the enrollment of an emergent bilingual student.
(f) All members of the LPAC, including parents, shall be acting for the school district and shall observe all laws and rules governing confidentiality of information concerning individual students. The school district shall be responsible for the orientation of all members of the LPAC, including the parents. The LPAC may use alternative meeting methods, such as phone or video conferencing and the use of electronic signatures that adhere to district policy.
(g) Upon a student's initial enrollment in Texas public schools, a student's transfer from a previous Texas public school district, and at the end of each school year, the LPAC shall review all pertinent information on all potential and identified emergent bilingual students, including emergent bilingual students with a parental denial of program participation, in accordance with §89.1226 of this title (relating to Testing and Classification of Students).
(1) For students initially enrolling in Texas public schools, the LPAC shall:
(A) designate the language proficiency level of each emergent bilingual student in accordance with the guidelines issued pursuant to §89.1226(b)-(f) of this title;
(B) recommend, subject to parental approval, the initial instructional placement of each emergent bilingual student in the required bilingual or ESL program without restricting access due to scheduling, staffing, or class size constraints; and
(C) facilitate the participation of emergent bilingual students in other special programs for which they are eligible while ensuring full access to the language program required under TEC, §29.053.
(2) For transferring students previously enrolled in a Texas public school district, the LPAC shall:
(A) review permanent record and LPAC documentation from the previous Texas school district to determine if the student has been identified as an emergent bilingual student based on the original home language survey and initial identification process;
(B) determine the continuation of the required bilingual or ESL program participation with parental approval for students previously identified as emergent bilingual or determine the need for monitoring of students who have previously met reclassification and are in their first two years of monitoring;
(C) review linguistic progress and academic achievement data of each emergent bilingual student to inform instructional practices; and
(D) facilitate the participation of emergent bilingual students in other special programs for which they are eligible while ensuring full access to the language program required under TEC, §29.053.
(3) At the end of the school year, for all identified emergent bilingual students, including emergent bilingual students with a parental denial of program participation, the LPAC shall:
(A) review language proficiency progress in English and, to the extent possible, the primary language of each emergent bilingual student;
(B) review academic achievement data in English and, to the extent possible, the primary language of each emergent bilingual student;
(C) reclassify eligible emergent bilingual students as English proficient in accordance with the criteria described in §89.1226(i) of this title;
(D) recommend exit from program of reclassified English proficient students, pending parental approval, or continuation of program participation for reclassified students participating in a dual language immersion one-way or two-way program model, according to the goals of the program; and
(E) prepare parental reports on student progress for all identified emergent bilingual students to be provided to parents within the first 30 calendar days after the beginning of the next school year, which include data on linguistic and academic progress, benefits of bilingual or ESL program participation, and the criteria for reclassification as English proficient.
(h) The LPAC shall give written notice to the student's parent, informing the parent that the student has been identified as an emergent bilingual student and requesting approval to place the student in the required bilingual education or ESL program not later than the 10th calendar day after the date of the student's classification in accordance with TEC, §29.056. The notice shall include information about the benefits of the bilingual education or ESL program for which the student has been recommended and that it is an integral part of the school program.
(i) Before the administration of the state criterion-referenced test each year, the LPAC shall determine the appropriate assessment option for each emergent bilingual student as outlined in Chapter 101, Subchapter AA, of this title (relating to Commissioner's Rules Concerning the Participation of English Language Learners in State Assessments).
(j) Pending completion of the identification process, receipt of LPAC documentation for transferring students, or parental approval of an identified emergent bilingual student's placement into the bilingual education or ESL program recommended by the LPAC, the school district shall place the student in the recommended program. Only emergent bilingual students with parental approval for program participation will be included in the bilingual education allotment.
(k) The LPAC shall monitor the academic progress of each student, including any student who previously had a parental denial of program participation, who has met criteria for reclassification in accordance with TEC, §29.056(g), for the first two years after reclassification. If the student earns a failing grade in a subject in the foundation curriculum under TEC, §28.002(a)(1), during any grading period in the first two school years after the student is reclassified, the LPAC shall determine, based on the student's second language acquisition needs, whether the student may require targeted instruction or, after careful consideration of multiple linguistic and academic data points, should be reconsidered for placement in a bilingual education or ESL program. In accordance with TEC, §29.0561, the LPAC shall review the student's performance and consider, at a minimum, the following:
(1) the total amount of time the student was enrolled in a bilingual education or ESL program;
(2) the student's grades each grading period in each subject in the foundation curriculum under TEC, §28.002(a)(1);
(3) the student's performance on each assessment instrument administered under TEC, §39.023(a) or (c);
(4) the number of credits the student has earned toward high school graduation, if applicable; and
(5) any disciplinary actions taken against the student under TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management).
(l) The student's permanent record shall contain documentation of all actions impacting the emergent bilingual student.
(1) Documentation shall include:
(A) the original home language survey;
(B) the identification of the student as an emergent bilingual student;
(C) the designation of the student's level of language proficiency;
(D) the recommendation of program placement;
(E) parental approval or denial of placement into the program;
(F) the date of placement in the program;
(G) assessment information as outlined in Chapter 101, Subchapter AA, of this title;
(H) additional instructional linguistic accommodations provided to address the specific language needs of the student;
(I) the date of reclassification and the date of exit from the program with parental approval; and
(J) the results of monitoring for academic success, including students formerly classified as emergent bilingual students, as required under TEC, §29.063(c)(4).
(2) Current documentation as described in paragraph (1) of this subsection shall be forwarded in the same manner as other student records to another school district in which the student enrolls.
(m) A school district may place a student in or exit a student from a program without written approval of the student's parent if:
(1) the student is 18 years of age or has had the disabilities of minority removed;
(2) the parent provides approval through a phone conversation or e-mail that is documented in writing and retained; or
(3) an adult who the school district recognizes as standing in parental relation to the student provides written approval. This may include a foster parent or employee of a state or local governmental agency with temporary possession or control of the student.
§89.1226.Testing and Classification of Students.
(a) The single state-approved English language proficiency test for identification of emergent bilingual students described in subsection (c) of this section shall be used as part of the standardized, statewide identification process.
(b) Within four calendar weeks of initial enrollment in a Texas public school, a student with a language other than English indicated on the home language survey shall be administered the state-approved English language proficiency test for identification as described in subsection (c) of this section and shall be identified as emergent bilingual and recommended for placement into the required bilingual education or English as a second language (ESL) program in accordance with the criteria listed in subsection (f) of this section.
(c) To identify emergent bilingual students, school districts shall administer to each student who has a language other than English as identified on the home language survey:
(1) in prekindergarten through Grade 1, the listening and speaking components of the state-approved English language proficiency test for identification; and
(2) in Grades 2-12, the listening, speaking, reading, and writing components of the state-approved English language proficiency test for identification.
(d) School districts that provide a bilingual education program at the elementary grades shall administer a language proficiency test in the primary language of the student who is eligible to be served in the bilingual education program. If the primary language of the student is Spanish, the school district shall administer the Spanish version of the state-approved language proficiency test for identification. If a state-approved language proficiency test for identification is not available in the primary language of the student, the school district shall determine the student's level of proficiency using informal oral language assessment measures.
(e) All language proficiency testing shall be administered by professionals or paraprofessionals who are proficient in the language of the test and trained in the language proficiency testing requirements of the test publisher.
(f) For placement into a bilingual education or ESL program, a student shall be identified as emergent bilingual using the following criteria.
(1) In prekindergarten through Grade 1, the student's score(s) from the listening and/or speaking components on the state-approved English language proficiency test for identification is/are below the level designated for indicating English proficiency.
(2) In Grades 2-12, the student's score(s) from the listening, speaking, reading, and/or writing components on the state-approved English language proficiency test for identification is/are below the level designated for indicating English proficiency.
(g) A student shall be identified as emergent bilingual if the student's beginning English language skills interfere with the completion of the English language proficiency assessment described in subsection (c) of this section.
(h) The language proficiency assessment committee (LPAC), in conjunction with the admission, review, and dismissal (ARD) committee, shall identify a student as emergent bilingual if the student's disabilities interfere with the completion of the English language proficiency assessment described in subsection (c) of this section. The decision for placement into a bilingual education or ESL program shall be recommended by the LPAC, in conjunction with the ARD committee, in accordance with §89.1220(f) of this title (relating to Language Proficiency Assessment Committee), ensuring access to both the bilingual education or ESL program and the special education and related services needed to provide a free, appropriate public education as identified in the student's individualized education program.
(i) An emergent bilingual student may be reclassified as English proficient only at the end of the school year in which a student routinely demonstrates readiness for reclassification as English proficient and the ability to successfully participate in grade level content instruction that is delivered with no second language acquisition supports. This determination shall be based upon all of the following:
(1) a composite proficiency rating, which includes ratings in the areas of listening, speaking, reading, and writing, on the state-approved English language proficiency test for reclassification that is designated for indicating English proficiency;
(2) passing standard met on the reading assessment instrument under Texas Education Code (TEC), §39.023(a), or, for students at grade levels not assessed by the aforementioned reading assessment instrument, a score at or above the 40th percentile on both the English reading and the English language arts sections of the state-approved norm-referenced standardized achievement instrument; and
(3) the results of a subjective teacher evaluation using the state's standardized rubric.
(j) An emergent bilingual student may not be reclassified as English proficient in prekindergarten or Kindergarten. A school district must ensure that emergent bilingual students are prepared to meet academic standards required by TEC, §28.0211.
(k) An emergent bilingual student may not be reclassified as English proficient if the LPAC has recommended designated supports or accommodations on the state reading assessment instrument based on the student's second language acquisition needs. Designated supports or accommodations for non-linguistic purposes that are recommended for student use by any other committee, including the ARD committee for students served in special education, do not prevent the student from being eligible to reclassify.
(l) For emergent bilingual students who are also eligible for special education services, the standardized process for emergent bilingual student reclassification is followed in accordance with applicable provisions of subsection (i) of this section. However, annual meetings to review student progress and make recommendations for reclassification must be made in all instances by the LPAC, in conjunction with the ARD committee, in accordance with §89.1230(b) of this title (relating to Eligible Students with Disabilities). Additionally, the LPAC, in conjunction with the ARD committee, shall determine participation and designated support or accommodation decisions on state criterion-referenced and English language proficiency assessments that differentiate between language proficiency and disabling conditions in accordance with §89.1230(a) of this title.
(m) For an emergent bilingual student with a significant cognitive disability, the LPAC, in conjunction with the ARD committee, may recommend that the state's criterion-referenced and English language proficiency assessments used for reclassification are not appropriate because of the nature of the student's disabling condition. In these cases, the LPAC, in conjunction with the ARD committee, may recommend that the student take the state's alternate criterion-referenced and alternate English language proficiency assessments. Additionally, the LPAC, in conjunction with the ARD committee, may utilize the individualized reclassification process to determine appropriate performance standard requirements for the state standardized reading assessment and English language proficiency assessment by language domain under subsection (i)(1) of this section and utilize the results of a subjective teacher evaluation using the state's standardized alternate rubric.
(n) Notwithstanding §101.101 of this title (relating to Group-Administered Tests), all tests used for the purpose of identification and reclassification of students and approved by TEA must be re-normed at least every eight years.
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 July 20, 2023.
TRD-202302606
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 9, 2023
Proposal publication date: April 21, 2023
For further information, please call: (512) 475-1497
SUBCHAPTER AA. COMMISSIONER'S RULES CONCERNING OPEN-ENROLLMENT CHARTER SCHOOLS
DIVISION 1. GENERAL PROVISIONS
The Texas Education Agency adopts an amendment to §100.1010, concerning charter school performance frameworks. The amendment is adopted without changes to the proposed text as published in the May 5, 2023 issue of the Texas Register (48 TexReg 2315) and will not be republished. The amendment adopts in rule the 2022 Charter School Performance Framework (CSPF) Manual, which is updated to comply with statutory provisions and the accountability framework currently used to rate the performance of open-enrollment charter schools in Texas.
REASONED JUSTIFICATION: Section 100.1010 defines the standards by which the commissioner will measure the performance of open-enrollment charter schools.
The adopted amendment replaces the 2021 CSPF Manual with the 2022 CSPF Manual. The 2022 version of the manual reflects the current accountability system and ratings.
Throughout the manual, language has been revised with clarifying edits such as updated dates and references to accountability indicators. Indicators that were not rated in 2021 reflect the most current rating methodology. To provide clarity for schools that were not rated under the accountability system, a designation of "N/A" is for the Academic Standard and the Alternative Education Accountability Academic Standard.
SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began May 5, 2023, and ended June 5, 2023. Following is a summary of the public comment received and agency response.
Comment: The Texas Association of School Administrators and Texas School Alliance expressed two issues with the proposal. The first concern was regarding how local education agencies (LEAs) with campuses rated NR: SB1365 would be scored on Indicator 1c: Campus Status. The second concern was regarding how LEAs were held accountable for performance of students in special populations.
Response: The agency provides the following clarification. For Indicator 1c, if an LEA has a campus rated NR: SB 1365, the LEA would receive an N/A for Indicator 1c, Academic Performance, and Tier Rating. If an LEA in this situation were to request an expansion amendment, they would be required to request a waiver for 19 TAC §100.33(b)(9)(A)(vi), which requires an LEA to be rated Tier 1 or Tier 2 on the most current CSPF. The 2022 CSPF takes into account the performance of student subgroups in 1a (Overall A-F score), 1b (Achievement Status for Student Groups), 1c (Campus Status), 3b (Program Requirements: Special Populations), and 3c (Program Requirements: Bilingual Education/English as a Second Language Populations). Separately from the CSPF, charter schools are also monitored for compliance with special education requirements through TEA's Office of Special Populations. The Office of Special Populations monitors LEAs related to Individuals with Disabilities Education Act, special populations, and federal and state statutes using a risk assessment index and holistic student-centered practices and provides targeted technical assistance and support for LEAs related to special education and special populations.
STATUTORY AUTHORITY. The amendment is adopted under Texas Education Code, §12.1181, which requires the commissioner to develop and adopt performance frameworks to measure the performance of an open-enrollment charter school.
CROSS REFERENCE TO STATUTE. The amendment implements Texas Education Code, §12.1181.
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 July 21, 2023.
TRD-202302609
Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
Effective date: August 10, 2023
Proposal publication date: May 5, 2023
For further information, please call: (512) 475-1497