Summary of Public Comments and Agency Responses Related to Proposed New 19 TAC Chapter 97, Planning and Accountability, Subchapter EE, Accreditation Status, Standards, and Sanctions, §97.1072, Residential Facility Monitoring; Determinations, Investigations, and Sanctions
Comment: Three special education directors, one special education counselor, one educational diagnostician, and one individual stated that the commissioner should not adopt the proposed rule. The commenters further stated that, with the expiration of the consent decree, the system of residential facility monitoring (RFM) could be maintained locally by school districts and that the monitoring, enforcement, and regulation by the Texas Education Agency (TEA) was unnecessary, too expensive, and not required in federal law. One special education director stated that the system has no positive impact on students, while another special education director and one special education counselor stated that the system could be eliminated without any negative impact on student achievement. One special education director further commented that the time and resources invested in RFM could be more effectively spent in monitoring "big issues" for every student in Texas, and an educational diagnostician and one individual stated that the RFM system was another costly layer of bureaucracy and that resources could be better spent to help all students. One special education director further stated that an RFM system is unfair to other students with disabilities in the state because so much time and effort is focused on students who happen to live in a residential facility (RF).
Agency Response: The agency disagrees. The TEA has monitoring and enforcement obligations as established in Texas Education Code (TEC), §29.010, and 34 Code of Federal Regulations (CFR) §300.149 and §300.600, and may not delegate its responsibility for ensuring compliance with special education program requirements to local education agencies. State and federal statute and regulations require the TEA to maintain a system of monitoring and enforcement. Furthermore, the agency has determined that, to implement a comprehensive system for monitoring school district compliance with federal and state special education requirements, it is necessary to adopt an RFM system designed to address the unique circumstances of a population of students who often have limited access to family members who can advocate for their educational needs.
Comment: One special education director stated that one of the most ridiculous aspects of the RFM system is to consider students who are incarcerated in a juvenile detention facility as students living in an RF.
Agency Response: The agency disagrees. Federal regulations at 34 CFR §300.101 and §300.102 establish the obligation of the agency to ensure a free appropriate public education (FAPE) for incarcerated youth, and students with disabilities who are incarcerated, like students living in other types of RFs, are a unique and vulnerable population of students who often have limited access to family members who can advocate for their educational needs.
Comment: Killeen Independent School District (ISD) implored the commissioner to withdraw the proposed rule and stated that it is not necessary for an RFM process to be codified in state law to ensure that students with disabilities in an RF receive a FAPE. Killeen ISD further stated that the numerous practical flaws of the process have far outweighed its theoretical benefit to students. Killeen ISD provided several examples of instances in which the district disagreed with the agency's findings or required corrective actions under the RFM system implemented under the Angel G. consent decree and stated that the RFM process exceeds requirements under state or federal law. Killeen ISD also stated that the proposed §97.1072(a) implies that RFM is limited to students residing in RFs but that, in reality, RFM corrective action plans (CAPs) impact students who were never in an RF. In addition, Killeen ISD stated that the proposed §97.1072(b) and (f) codify an existing process that leaves unbridled authority to agency staff to find fault with districts for very minor procedural inadequacies even though federal statute and regulations relating to other processes require a meaningful examination of whether a procedural violation impeded a child's right to a FAPE, significantly impeded a parent's opportunity to participate, or caused a deprivation of educational benefit. Killeen ISD further stated that monitoring staff have fabricated certain requirements and directly overruled admission, review, and dismissal (ARD) committee decisions in certain circumstances. Finally, Killeen ISD stated that an RFM system is burdensome, unwarranted, and unnecessary, with arbitrary and overreaching enforcement, and urged that specific limits to the authority of RFM monitors be put in place if the rule is not withdrawn in its entirety.
Agency Response: The agency agrees in part and disagrees in part. The agency agrees that certain aspects of the Angel G. consent decree removed discretion from the agency by requiring it to monitor and implement enforcement actions in a prescribed fashion. The agency disagrees that an RFM system to be implemented under this rule action goes beyond state or federal requirements. The TEA has monitoring and enforcement obligations as established in TEC, §29.010, and 34 CFR §300.149 and §300.600 and has the responsibility for ensuring compliance with special education program requirements. The agency has determined that, to implement a comprehensive system for monitoring school district compliance with federal and state special education requirements, it is necessary to adopt an RFM system designed to address the unique circumstances of a population of students who often have limited access to family members who can advocate for their educational needs. With regard to the comment that RFM staff have issued findings of noncompliance for minor procedural violations, the United States Department of Education has clarified that state educational agencies must identify any level of noncompliance with special education requirements and ensure correction of the noncompliance as soon as possible and in no case longer than one year from identification of the noncompliance. The agency acknowledges that certain corrective actions implemented as part of an RFM CAP can result in a district's improving its overall compliance with special education requirements for both RF and non-RF students with disabilities, which the agency considers to be a positive aspect of the RFM system. It is the agency's intent to align, to the extent possible, the monitoring activities under the RFM system with other systems of agency monitoring and to reduce, to the extent possible, the data reporting obligations previously associated with the requirements of the consent decree. Many of the statements in the comment reflect upon implementation of the monitoring system under the consent decree, and, as such, are not directly related to the language of the rule proposal.
Comment: The Alliance Directors of Special Education (ADSE) and one special education director stated that they recognize the need for the TEA to monitor districts for compliance and offered comments and recommendations that they believe would allow for monitoring that would maintain the integrity of compliance while not being additionally burdensome to districts. The commenters noted their agreement with the need for a graduated monitoring system and recommended that the RFM system be incorporated into already-existing monitoring systems. The commenters also suggested that the RFM system be co-developed with a team of special education directors and stated that monitoring procedures should be clearly outlined, with required, regular training of monitoring staff. The commenters further recommended that all correspondence relating to the RFM system be in writing and include legal citations. The commenters stated that it was erroneous for the agency to state that there was no additional fiscal burden with the rule actions. The commenters suggested that the agency revise the language of its letter of adoption by deleting the words "seek to" related to the agency's stated intent to seek to reduce, to the extent possible, the data reporting obligations previously associated with the requirements of the consent decree.
Agency Response: The agency agrees in part and disagrees in part. The agency agrees with the need for clearly defined policies and procedures and for regular training of monitoring staff. The agency notes that the RFM Manual, which is adopted as part of this rule action, establishes a number of procedures and policies related to the RFM system. However, certain suggestions included in the comment, including the suggestion related to monitor training, deal with agency implementation activities and, therefore, go beyond the scope of the rule adoption. It is the agency's intent to align, to the extent possible, the monitoring activities under the RFM system with other agency monitoring systems and to reduce, to the extent possible, the data reporting obligations previously associated with the requirements of the consent decree. As part of this process, the agency will seek input from stakeholders. The agency does not agree that all aspects of the RFM system can be embedded in other monitoring systems given the unique circumstances surrounding the RF student population and disagrees that a change should be made to the rule adoption as it relates to the agency's stated efforts to seek to reduce data reporting obligations. In regard to the comments concerning costs, the agency acknowledges that there is a fiscal impact to the state and districts for reporting requirements and compliance activities related to RFM; however, the fiscal impact statement specifically notes that the rule action assigns no additional fiscal burden beyond what already is imposed by law or the previous consent decree.
Comment: An attorney from Schwartz & Eichelbaum and two special education directors stated that the commissioner should not adopt the proposed rule. Specifically, the commenters stated that the rule imposes costly burdens on districts without a commensurate benefit to students and that the system mostly has identified errors that are very minor in nature and unrelated to the quality of education for students. The commenters further stated that the state is not required to continue these practices after the consent decree expires and that the rule allows a certain segment of agency staff to keep their jobs. The commenters also stated that enforcement of RFM standards has been arbitrary at times and that agency staff has provided little assistance to districts and education service centers (ESCs). The special education directors stated that ESC directors find the system onerous and of no benefit to students. The commenters stated that there already are safeguards in place to protect students with disabilities and that the system is not consistent with smaller government. The special education directors further commented that Angel G. was caused by the agency not doing their job and, as a result, local districts are being punished.
Agency Response: The agency disagrees. The TEA has monitoring and enforcement obligations as established in TEC, §29.010, and 34 CFR §300.149 and §300.600 and has the responsibility for ensuring compliance with special education program requirements. The agency has determined that, to implement a comprehensive system for monitoring school district compliance with federal and state special education requirements, it is necessary to adopt an RFM system designed to address the unique circumstances of a population of students who often have limited access to family members who can advocate for their educational needs. The agency disagrees that it has provided little assistance to districts and ESCs and notes that it remains committed to ongoing dialogue and assistance as the RFM system is revised and implemented. In response to the comments that most of the errors found in the RFM process have been minor, the agency disagrees and notes that it has consistently identified noncompliance in substantive areas such as properly constituted ARD committee meetings, least restrictive environment, highly qualified and certified staff, and individualized education program (IEP) implementation. While the Angel G. consent decree resulted from an adverse court decision, the current effort to create an RFM system that is aligned, to the extent possible, with other agency monitoring systems is a direct response to the agency's obligation to address the needs of a unique and vulnerable student population.
Comment: The Texas Charter Schools Association (TCSA) shared certain observations and asked a number of questions that it suggested be addressed in the final rule and RFM Manual. In regard to §97.1072(c), the TCSA asked what critical indicators will be used to determine which RF districts will be subject to RFM activities and what specific enrollment numbers or percentages will trigger an RFM activity. The TCSA further inquired as to whether the term "districts" as referenced in the rule applies to open-enrollment charter schools. The TCSA stated that any performance comparisons should be made only to the performance of other entities that serve the same grade levels, similarly sized student populations, and populations that have the same or nearly the same mobility rates. The TCSA further inquired regarding how the agency would measure a district's longitudinal performance and stated that true longitudinal performance may be difficult to measure due to student mobility issues. In regard to §97.1072(d), the TCSA asked what was meant by the term "longitudinal intervention history" and what "other relevant factors" will fall into the category. In regard to §97.1072(h), the TCSA inquired under what legal authority the commissioner is permitted to require districts to pay for professional services assigned by the TEA and suggested that a provision be added to §97.1072(h) to require the commissioner to streamline as much as possible multiple corrective action plans or other consequences of ineffectiveness or noncompliance that affect the same charter holder.
Agency Response: The agency clarifies that reference to districts in proposed §97.1072 includes open-enrollment charter schools. The agency also clarifies that §97.1072(c) establishes general criteria for determining which districts, including open-enrollment charter schools, will be subject to RFM activities but notes that the critical indicators of student performance are more appropriately reflected in the agency's system for RFM data collection and its supporting documentation and in the RFM Manual, which is adopted in rule. The specific enrollment numbers and percentages that will trigger monitoring activities cannot be determined in isolation of the other factors and considerations listed in §97.1072(c) and, therefore, are not reflected. The agency will take under advisement the suggestion that it compare like entities in its implementation of an RFM system. The agency acknowledges that the mobility of RF students affects, in some cases, a district's and the agency's ability to track longitudinal student performance. Nevertheless, longitudinal data are available over time. In regard to the meaning of "longitudinal intervention history" in §97.1072(d), the agency notes that it will consider the performance of districts over time in the agency's systems of monitoring and general supervision and that "other relevant factors" include district information that is relevant to the agency's determination of the need to conduct RFM monitoring activities. In regard to the questions related to §97.1072(h), the agency notes its authority under TEC, §39.109, to order a district to acquire professional services. As it relates to the comment on streamlining the need for corrective action plans, the agency agrees that activities should be streamlined and consolidated to the extent possible and already has taken action to begin to address this need. The agency will continue to expand its efforts in this area; however, this suggestion deals with agency implementation activities rather than specific rule language.
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