Summary of Public Comments and Agency Responses Related to Proposed New 19 TAC Chapter 103, Health and Safety, Subchapter CC, Commissioner's Rules Concerning Safe Schools, §103.1201, Standards for the Operation of School District Disciplinary Alternative Education Programs
Comment: Texas Appleseed and Advocacy, Incorporated commented that one of the key provisions of the proposed new rule, specified in subsection (b)(1)-(6), requires disciplinary alternative education programs (DAEPs), rather than the school district, to "ensure" that objectives related to the DAEP are included in the district's improvement plan. The commenters recommended that language be changed to require the school district, rather than the DAEP, to be responsible for ensuring that the board-approved district improvement plan includes improvement objectives for DAEPs.
Agency Response: The agency agrees. Language was modified throughout the rule to clarify the responsibilities of school districts.
Comment: Texas Appleseed and Advocacy, Incorporated commented that the original draft of the proposed rule listed five additional areas to be discussed in the improvement plan objectives: performance gains, mandatory and discretionary placements, number of students placed in the JJAEP after the DAEP, average length of stay, and academic progress. The commenters requested that these areas be added back to the rule for adoption.
Agency Response: The agency disagrees. The agency determined that the listed additional areas were to remain under local policy.
Comment: Texas Appleseed and Advocacy, Incorporated commented that the proposed rule does not include provisions relating to assessments of DAEP students' academic growth. The commenters stated that the assessment requirement is appropriate to determine whether students' educational needs are being met in a DAEP.
Agency Response: The agency agrees. In response to House Bill (HB) 2532, the agency is currently in the process of preparing rule text pertaining to assessing academic growth of the DAEP student required under the TEC, §37.0082.
Comment: The Texas Council for Developmental Disabilities (TCDD), in collaboration with the Center on Disability and Development at Texas A&M University, commented that proposed new subsection (d)(1) references "performance measures" that must be included in a third-party contract for DAEP services. The TCDD stated that these performance measures would address, principally, the operations of the DAEP, and as such, should have to follow a specific set of standards that are not delineated in the proposed new rule. In addition to proposed requirements regarding teacher-to-student ratio and length of the school day, third-party contractors must adhere to performance measures that ensure that students with disabilities receive the educational support they need to make progress on their federally required individualized education program (IEP).
Agency Response: The agency disagrees. It is the district's responsibility to comply with any contracts. However, language in subsection (d) was modified at adoption to clarify that the district is ultimately accountable for the deliverables of the third-party contract.
Comment: The TCDD commented that proposed new subsection (f) states that each DAEP must provide an academic and "self-discipline" program that leads to graduation and includes instruction in each student's special education services. The TCDD recommended clarifying what a "self-discipline" program is, as it relates to students with disabilities.
Agency Response: The agency disagrees. The self-discipline program should be established by each school district to meet the needs of the student.
Comment: Jarrell Independent School District (ISD) commented that the DAEP school day minimum of seven hours a day specified in subsection (f)(2) is problematic to small districts that enter into cooperatives to provide DAEP services with surrounding districts. Jarrell ISD stated that this extends the day for the students and the bus drivers by an hour and a half in the morning and another hour and a half in the afternoon. Jarrell ISD noted that the district's DAEP students currently attend the DAEP for 6.5 to 6.75 hours a day, not including the bus ride. Jarrell ISD also commented that the seven-hour minimum school day would have a financial impact on a district that has to pay more overtime to bus drivers because the bus route to the DAEP requires them to work more than 40 hours a week. Jarrell ISD requested that this provision be omitted and that districts be allowed the flexibility to set the day according to local circumstances.
Agency Response: The agency disagrees. Based on the compilation of feedback provided by 347 school districts and 45 organizations, 92% of DAEPs report having school days that are seven hours or longer. This will ensure sufficient time to provide the required educational services.
Comment: The Texas Classroom Teachers Association (TCTA) and Katy ISD expressed concern with proposed new subsection (f), which states that the student's four-year graduation plan (minimum, recommended, or distinguished achievement--advanced) may not be altered, while also stating that the student must be offered an opportunity to complete a foundation curriculum course in which the student was enrolled at the time of removal before the beginning of the next school year. Katy ISD commented that this would include offering correspondence or distance learning opportunities or summer school at no charge and inquired whether this means the student must be offered the same exact course or if a foundation course can be interpreted as a basic course. Katy ISD noted that it is a challenge to offer the basic courses at all the different levels. The TCTA asked for clarification of whether all curriculum (including extracurricular studies) must be provided in a DAEP setting. The TCTA noted that requiring all curriculum could cause an undue hardship but ensuring the foundation curriculum would not do so.
Agency Response: The agency disagrees. The agency has determined that subsection (f)(1) is clear. Subsection (f) imposes two requirements. First, a student's overall graduation plan may not be altered because of a removal, ensuring that the student is not placed on a less demanding graduation plan. Second, a student must be offered an opportunity free of charge to complete specific foundation curriculum courses in which the student is enrolled at the time of removal. This allows a student to remain on track to complete foundation curriculum courses on the same schedule despite having been removed. A DAEP may offer a student a different enrichment curriculum course, but must provide an opportunity to complete the same course in the foundation curriculum as the student was enrolled in at the time of removal.
Comment: The TCDD commented that subsection (g) requires DAEPs to provide services to a student with a disability in accordance with the IEP established by the ARD committee. The TCDD encouraged the TEA to monitor compliance with this standard through objectively measured criteria and stated that this section may need to clarify that the DAEP must follow the IEP currently in place at the time of the student's removal to the DAEP. The TCDD stated that any change in placement should not result in significant changes in a student's IEP unless other educational deficits and/or support needs are identified separate from the placement change. The TCDD recommended that the DAEP standards should clarify that if a child's IEP is changed after referral to the DAEP, it is not done simply to accommodate the change in placement and make it easier for the DAEP to serve that student. The TCDD noted that if, for example, a student is referred to a DAEP and needs an ASL interpreter as part of the IEP accommodations, the need for an interpreter cannot be removed simply because the student will be receiving services in a DAEP. The TCDD also commented that subsection (g) should specifically mention that a DAEP must follow and implement the student's behavior intervention plan (BIP). The TCDD stated that if the ARD committee determines that revisions are needed to the IEP (including the BIP), those changes must be addressed as a revision to the IEP before the change in placement or within an established timeframe by the TEA.
Agency Response: The agency disagrees with the need to specifically address the IEP and BIP in rule. The language in the rule requires consideration of the IEP and does not supersede federal and state laws and regulations. However, the agency has added reference to the TEC, §37.004, and federal requirements for clarity.
Comment: Texas Appleseed and Advocacy, Incorporated noted the provision in subsection (g) requiring DAEPs to provide educational services that will support the student in meeting the goals identified in the student's IEP. The commenters stated that this provision falls short of IDEA's requirements, which include access to the general curriculum, a functional behavioral assessment, behavioral intervention services, and modifications designed to address the behavior that caused the referral.
Agency Response: The agency disagrees. Access to general curriculum is addressed in rule. The IDEA would independently require that the district provide the services specified in the IEP if appropriate or that the district's ARD committee meet to determine appropriate modifications.
Comment: The TCTA commented that the requirement in subsection (h) regarding DAEP responsibility for the safety and supervision of students assigned to the program is not found elsewhere in the Texas Administrative Code and questioned potential ramifications to immunity provided in statute.
Agency Response: The agency agrees. Language in subsection (h) was modified to reflect the specification that immunity provided in the TEC, §22.0511, is not affected.
Comment: The Texas Association of School Boards (TASB) and Katy ISD expressed concern that the DAEP student-to-teacher ratio proposed in subsection (h)(1) imposes a student-to-teacher ratio for DAEPs that is significantly lower than the 22:1 ratio for Kindergarten-Grade 4 at traditional campuses mandated by state law. The TASB commented that the proposed student-to-teacher ratio and the requirement to educate students separately from students on the regular campus would result in hiring additional certified teachers, securing additional facilities, and purchasing additional supplies. The TASB and Katy ISD also expressed concerns about problems associated with hiring additional staff at various times throughout the year because of constantly fluctuating student enrollments. The TASB requested that the proposed rule either adopt the same class size ratio for DAEPs as for traditional campuses or allow a waiver of the teacher-to-student ratio for districts diligently working to comply with the new DAEP class size requirement.
Agency Response: The agency disagrees. The teacher-to-student ratio should remain at 1:15 based on research that supports a smaller ratio in order to provide sufficient education services in a DAEP site. Based on the compilation of feedback provided by 347 school districts and 45 organizations, 73% of DAEP programs currently maintain a teacher-to-student ratio of 1:15 or less.
Comment: The TCTA requested the addition of language in subsection (h)(2), relating to staff being prepared and trained to respond to health issues and emergencies, to make clear that it is incumbent upon the school district to provide staff with opportunities to participate in training.
Agency Response: The agency disagrees. Language in subsection (h) states that the district is responsible, as also specified in subsection (i).
Comment: The TCDD commented that subsection (h) describes steps a DAEP must take to ensure safety and adequate supervision of students in its programs. The TCDD stated that missing from this subsection is a requirement to follow discipline and behavior management techniques appropriate to the student's disability. The TCDD recommended amending the language in paragraph (4) to reflect that discipline and intervention measures established in school district board policies incorporate the needs of students with disabilities and, specifically, require adherence to a student's BIP as the primary discipline intervention for those students.
Agency Response: The agency disagrees. The agency has determined that it is unnecessary to add the language recommended by the commenter to this subsection because local school districts and shared services arrangements already have policies and procedures in place to implement the sections of the TEC, Chapter 37, and federal requirements pertaining to the disciplining of students with disabilities.
Comment: The TASB requested that proposed language in subsection (h)(4) requiring a DAEP to establish a board-approved policy be replaced with language specifying that the DAEP shall implement the board-approved discipline and intervention measures contained in the student code of conduct, consistent with TEC, §37.001.
Agency Response: The agency agrees. Language in subsection (h)(4) was modified to clarify that DAEPs are to implement policies adopted by local school boards.
Comment: The TCTA requested the addition of language in subsection (i), relating to training programs on education, behavior management, and safety procedures, to make clear that it is incumbent upon the school district to provide staff with opportunities to participate in training.
Agency Response: The agency disagrees. Language in the rule allows districts to determine appropriate training based on individual district needs.
Comment: The TCDD commented that subsection (i) regarding required training does not specify how much training must be provided to DAEP staff and how often training must be provided. The TCDD recommended amending this section to add language that specifies how often each DAEP staff member must receive training, what level of training must be provided, and who is qualified to provide that training. The TCDD also recommended clarifying expectations regarding the quality, quantity, and scope of the training to be received by DAEP staff.
Agency Response: The agency disagrees. The language in the rule allows districts to determine appropriate training, while considering the individual circumstances of the district's DAEP program.
Comment: The TCDD commented that subsection (i)(1), regarding training on the education and discipline of students with disabilities, does not specify training to implement the IEP and BIP for each student. The TCDD stated that training on effective strategies to serve children with different types of disabilities is critical for a student's successful progress and also stated that this training should address the different types of disabilities and accommodations needed (such as services for students with autism spectrum disorders). The TCDD suggested that training on how to implement the IEP and BIP for each individual student should be required for DAEP staff.
Agency Response: The agency disagrees. In conjunction with the review of the IEP, the rule ensures that students will be individually treated through the consideration of their IEP.
Comment: The TCTA commented that the term "admission procedures" in subsection (j) is not clear and may imply that a student can be admitted or denied admission based on this language, while the TEC, Chapter 37, requires such removal.
Agency Response: The agency agrees. Language in subsection (j) was modified to reflect the deletion of the term "Admission."
Comment: The TCTA suggested clarification on the term "collaborative groups" in subsection (k)(1), noting uncertainty of what the term means and who would be required to participate.
Agency Response: The agency agrees. Language in subsection (k)(1) was modified to require regular communication between the DAEP and local campus with specific information requirements.
Comment: Texas Appleseed and Advocacy, Incorporated commented that the proposed new rule only requires transition procedures to include a timeline for the student's transition and written and oral communication of the student's education and behavioral progress. The commenters considered this to be ambiguous and difficult to classify as a programmatic standard in any meaningful sense and recommended several standards to include in transition planning.
Agency Response: The agency disagrees. Transition procedures are already in place in federal and state law and, therefore, not restated in rule. However, language was modified in subsection (k)(2) to require written reports from the DAEP staff that include the student's educational performance and tasks completed.
Comment: Katy ISD commented that the proposal was streamlined from an earlier version and that it appears that feedback from district personnel has resulted in positive changes. Katy ISD expressed appreciation for changes relating to the review of attendance percentages, transportation of DAEP students, staff training in behavior management and safety procedures, and district designation of grade levels considered elementary or secondary.
Agency Response: The agency agrees.
Comment: Texas Appleseed and Advocacy, Incorporated commented on the placement of the proposed rule in the Health and Safety section of Title 19 of the Texas Administrative Code, rather than the Planning and Accountability section. The commenters stated that placing the rule that defines standards for DAEPs in a section that has nothing to do with programmatic standards, planning, or accountability undermines the importance of and need for minimum standards for DAEPs. The commenters noted that it was the legislature's recognition of the problems caused by the lack of standards that motivated passage of House Bill (HB) 426.
Agency Response: The agency disagrees. The new rule is appropriately placed in 19 TAC Chapter 103, Health and Safety, where rules concerning student safety are located.
Comment: Texas Appleseed and Advocacy, Incorporated commented that the proposed new rule fails to elucidate standards beyond those enumerated in the statute itself, despite the legislature's clear intent that the TEA adopt minimum standards that include, but expand on, the list in HB 426.
Agency Response: The agency disagrees. The new rule provides additional requirements and standards throughout that are consistent with the statute.
Comment: Texas Appleseed and Advocacy, Incorporated commented that the TEA does not include any language indicating how the standards will be monitored or enforced. The commenters also stated that the TEA should put procedures into place that ensure that DAEPs are complying with existing federal and statutory requirements and should not articulate a "standard" that falls short of existing statute.
Agency Response: The agency disagrees. The statute does not provide for monitoring and enforcement. Instead, the TEC, §37.008(a-2), requires the agency to deliver a report to the legislature that provides the estimated costs to the agency of enforcing the DAEP standards, including the estimated cost of on-site monitoring to enforce the standards and alternative methods of monitoring compliance with the standards.
Comment: The TCDD, in collaboration with the Center on Disability and Development at Texas A&M University, commented that missing from the proposed standards is a requirement for the local campus to monitor the student's progress on meeting proposed goals. The TCDD stated that the proposal does not require DAEPs to address strategies to mitigate the behavior of students with disabilities and that discretionary placements, based on the behavior of the student, are the majority of the referrals to DAEP services. The TCDD recommended that the proposal incorporate language that requires DAEPs to closely monitor the implementation of appropriate BIP for each student with a disability. The TCDD commented that the proposal does not address how adherence to these standards will be monitored, that the standards will be ineffective if they are not monitored for compliance, and that schools must be given meaningful incentives to remain in compliance with the rule.
Agency Response: The agency disagrees. Language in the rule requires consideration of the IEP and does not supersede federal and state laws and regulations. The TEC, §37.004, addresses the needs of the placement of students with disabilities.
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