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(a) Purpose. A school district that is unable to provide a bilingual and/or an English as a second language (ESL) program as required by §89.1205(a) and (c) of this title (relating to Required Bilingual and English as a Second Language (ESL) Programs) because of an insufficient number of appropriately certified teachers shall request from the commissioner of education an exception to the bilingual program and/or a waiver for the ESL program and the approval of temporary alternative methods as defined in §89.1203(1) of this title (relating to Definitions) that align as closely as possible to the required bilingual or ESL program.(b) Funding. Emergent bilingual (EB) students with parental approval for program participation under a bilingual exception or an ESL waiver will be included in the bilingual education allotment (BEA) designated for temporary alternative methods.(c) Duration. The approval of a bilingual exception or an ESL waiver shall be valid only during the school year for which it was granted, which includes summer school.(d) Application requirements. The bilingual exception and/or ESL waiver application shall be submitted by November 1 and shall include:(1) a statement of the reasons the school district is unable to provide a sufficient number of appropriately certified teachers to offer the bilingual and/or ESL program with supporting documentation as described in Texas Education Code (TEC), §29.054(b)(1), (2), and (3);(2) a description of the temporary alternative methods to meet the affective, linguistic, and cognitive needs of EB students, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title (relating to Curriculum Requirements) to include foundation and enrichment areas, English language proficiency standards (ELPS), and college and career readiness standards (CCRS);(3) an assurance that appropriately certified teachers available in the school district will be assigned to ensure that the affective, linguistic, and cognitive needs of EB students with beginning and intermediate levels of English proficiency are served on a priority basis by doing the following:(A) in a bilingual program, assigning appropriately certified teachers beginning in prekindergarten followed successively by subsequent grade levels to ensure effective early literacy development; or(B) in an ESL program, assigning appropriately certified teachers to serve students with the highest linguistic needs at any grade level;(4) an assurance that the school district will implement a comprehensive professional development plan that:(A) is ongoing and targets the development of the knowledge, skills, and competencies needed to serve the needs of EB students;(B) includes the teachers who are not certified or not appropriately certified who are assigned to implement the temporary alternative methods that align closely to the required bilingual or ESL program; and(C) may include additional teachers who work with EB students;(5) an assurance that at least 10% of the total BEA shall be used to fund the comprehensive professional development plan required under paragraph (4) of this subsection when applying for a bilingual exception and/or an ESL waiver;(6) an assurance that the school district will develop an action plan to ensure that the programs required under §89.1205(a) and (c) of this title will be provided the subsequent year, including its plans for recruiting an adequate number of appropriately certified teachers to eliminate the need for subsequent exception waivers and measurable targets for the subsequent year as required by TEC, §29.054(b)(4); and(7) an assurance that the school district shall satisfy the additional reporting requirements described in §89.1265(c) of this title (relating to Program Evaluation).(e) School district responsibilities. A school district submitting a bilingual education exception and/or an ESL waiver shall maintain written records of all documents supporting the submission and assurances listed in subsection (d) of this section, including:(1) a description of the temporary alternative methods designed to meet the affective, linguistic, and cognitive needs of the EB students;(2) the number of teachers for whom a bilingual exception or an ESL waiver is needed by grade level and per campus;(3) a copy of the school district's comprehensive professional development plan;(4) a copy of the BEA budget documenting that a minimum of 10% of the funds were used to fund the comprehensive professional development plan; and(5) a description of the actions taken to recruit an adequate number of appropriately certified teachers.(f) Approval of bilingual exceptions and ESL waivers. A bilingual exception and/or an ESL waiver will be granted by the commissioner if the following criteria are met for each program.(1) For a bilingual exception, the school district meets the requirements and measurable targets of the action plan described in subsection (d)(6) of this section submitted the previous year and approved by the Texas Education Agency (TEA) and also meets one of the following criteria:(A) meets or exceeds the state average for EB student performance on the required state assessments; or(B) reduces by 25% the number of teachers under the bilingual exception when compared to the number of teachers under the bilingual exception the previous year.(2) For an ESL waiver, the school district meets the requirements and measurable targets of the action plan described in subsection (d)(6) of this section submitted the previous year and approved by TEA and also meets one of the following criteria.(A) meets or exceeds the state average for EB student performance on the required state assessments; or(B) reduces by 25% the number of teachers under the ESL waiver when compared to the number of teachers under the ESL waiver the previous year.(g) Denial of bilingual exceptions and ESL waivers. A school district denied a bilingual exception and/or an ESL waiver shall submit to the commissioner a detailed action plan for complying with required regulations for the following school year.(h) Appeals. A school district denied a bilingual exception and/or an ESL waiver may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.(i) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under TEC, §39.003, if a school district is denied a bilingual exception and/or an ESL waiver for more than three consecutive years.(j) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under TEC, §39A.002.