ATTACHMENT III
Summary of Public Comments and Agency Responses Related to Proposed Amendments and Repeal to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services
More than 400 individuals, including educators, school officials, legislators, regional education service centers, organizations, and interested citizens, submitted comments regarding the proposed amendments and repeal to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services.
§89.1011, Referral for Full and Individual Initial Evaluation
Comment: A parent expressed support for the proposed amendment to §89.1011.
Agency Response: The agency agrees.
Comment: A licensed specialist in school psychology and an appraisal staff leader/educational diagnostician recommended that the agency enforce pre-referral/referral procedures.
Agency Response: The agency agrees. Pre-referral/referral procedures are enforced by the agency to the extent appropriate through its authority and responsibility to general supervision. Following rule adoption, the agency plans to provide clarification and policy guidance regarding pre-referral/referral procedures.
Comment: An appraisal staff leader/educational diagnostician, three ARD facilitators, two special education directors, a licensed specialist in school psychology, a special education coordinator, an instructional specialist, and a diagnostician recommended clarification of "Response to scientific, research-based interventions."
Agency Response: The agency agrees. Following rule adoption, the agency plans to provide clarification and guidance regarding this issue.
Comment: A senior education specialist for assessment, a consultant for assessment, and a special education director suggested implementation of a statewide standardized progress monitoring tool for response to intervention (RtI), and further suggested that Texas schools be required to submit a plan for RtI with timelines and measurable goals.
Agency Response: The agency disagrees. Decisions regarding implementation of RtI are best addressed at a local level. Following rule adoption, the agency plans to provide policy guidance on RtI and related issues.
Comment: Two special education directors expressed concern that the proposed amendment to §89.1011 will place a general education mandate in special education, allowing special education referrals to be denied and resulting in students continuing to fail in the general education environment. In addition, a concern was expressed regarding consistency in evaluation throughout the state.
Agency Response: The agency disagrees. The rule is sufficiently clear and will not result in inconsistent evaluation or denial of special education referrals. Following rule adoption, the agency plans to provide policy guidance regarding pre-referral/referral and evaluation procedures.
Comment: A special education director expressed concern that the proposed rule contains insufficient detail regarding three-year evaluations.
Agency Response: The agency disagrees. Reevaluations are not within the scope of this rule. Following rule adoption, the agency plans to provide policy guidance regarding this issue.
Comment: A licensed specialist in school psychology recommended the proposed rule language be changed to indicate that response to scientific intervention is conducted by specific disability.
Agency Response: The agency disagrees. The wording is in alignment with the federal regulations and indicates such a pre-referral RtI process is intended to be conducted within the general education setting.
Comment: A licensed specialist in school psychology expressed concern about general education teacher training and/or determination of evaluation requirements and interventions.
Agency Response: Following rule adoption, the agency will provide further guidance on this issue, including pre-referral/referral procedures, such as RtI, and related training.
Comment: The executive director of the Arc of Texas expressed concern that some districts have failed to initiate a referral for special education when requested due to the use of early intervening services and recommended requiring a school district to initiate a special education referral if requested by a parent, including providing a parent with requested forms for initial evaluation.
Agency Response: The agency disagrees. Federal regulations in 34 Code of Federal Regulations (CFR) §300.301(b) and (c) require a school to conduct an initial evaluation upon parent request and consent. It is unnecessary to repeat federal requirements in commissioner's rule in this case. Following rule adoption, the agency plans to provide policy guidance regarding this issue.
Comment: An individual recommended including dyslexia and Section 504 of the Rehabilitation Act to the list of possible pre-referral programs in addition to adding a reference to the use of research-based programs before making a referral.
Agency Response: The agency disagrees. As the list of potential pre-referral services is not meant to be exhaustive, the agency views a reference to dyslexia and Section 504 programs as unnecessary. Reference to scientific, research-based intervention is included in the rule. Following rule adoption, the agency plans to provide policy guidance on research-based programs and pre-referral services.
Comment: A licensed specialist in school psychology recommended defining and adding clarification to the proposed rule language, "student continues to experience difficulty in the general classroom."
Agency Response: The agency disagrees. Following rule adoption, the agency will provide policy guidance clarifying the pre-referral/referral and evaluation process.
Comment: A parent commented that the way the rules are written, children are not being evaluated in all areas of a suspected disability.
Agency Response: The agency disagrees. 34 CFR §300.304(c)(4) and (6) require an evaluation to be sufficiently comprehensive to assess a child in all areas related to a suspected disability and to identify all the child's special education needs. It is unnecessary to restate the federal regulation in this case.
§89.1040, Eligibility Criteria
§89.1040(b)
Comment: A parent suggested adding clarification to the proposed rule stating that students must be tested in all areas of disability.
Agency Response: The agency disagrees. 34 CFR §300.304(c)(4) and (6) require an evaluation to be sufficiently comprehensive to assess a child in all areas related to a suspected disability and to identify all the child's special education needs. The agency believes it is unnecessary to restate the federal regulation in this case.
§89.1040(c)(4)
Comment: A licensed specialist in school psychology recommended that the term "Emotional Disturbance" be changed to "Emotional and Behavioral Disorders" because more parents are willing to allow the use of such a designation for their child.
Agency Response: The agency disagrees. The term "Emotional Disturbance" continues to be used in the federal regulations referred to in commissioner's rule. Therefore the agency will continue using the term "Emotional Disturbance."
§89.1040(c)(5)
Comment: The executive director with the Arc of Texas, three assistant special education directors, five educational diagnosticians, eight special education directors, one consultant, and one assistant director expressed support for the proposed changes.
Agency Response: The agency agrees.
Comment: Four special education directors, six educational diagnosticians, one speech-language pathologist, two licensed specialists in school psychology, five ARD facilitators, one instructional specialist, one teacher, one special education coordinator, one parent, and two individuals expressed opposition to the proposed change due to concerns the change will result in an increase in students found eligible for special education services.
Agency Response: The agency disagrees. The rule provides for consistent eligibility determination and will not result in student eligible for special education services. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage accurate eligibility determination of mental retardation.
Comment: A school psychologist, an individual, a special education director, and an educational diagnostician, recommended clarifying the proposed rule due to the potential for increased litigation as the result of inconsistency in eligibility determination for mental retardation.
Agency Response: The agency disagrees. The rule provides for consistent eligibility determination and will not result in an increase in litigation. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage accurate eligibility determination of mental retardation.
Comment: One educational diagnostician expressed opposition to the proposed change because it is in conflict with federal regulations.
Agency Response: The agency disagrees. The rule is consistent with the definition of mental retardation in federal regulations, 34 CFR §300.8(c)(6).
Comment: One licensed specialist in school psychology, two ARD facilitators, one special education coordinator, and one special education director recommended changing the term mental retardation to intellectual and developmental disability.
Agency Response: The agency disagrees and maintains consistency with federal regulations, which continue to use the term mental retardation.
Comment: Three licensed specialists in school psychology, one psychologist, and two special education directors expressed opposition to the proposed change regarding adaptive behavior due to concerns the change will result in an increase in students found eligible for special education services.
Agency Response: The agency disagrees. The rule provides for consistent eligibility determination and will not result in an increase in students found eligible for special education services. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage accurate eligibility determination of mental retardation.
Comment: One educational diagnostician and one special education director recommended clarification regarding adaptive behavior.
Agency Response: Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage accurate eligibility determination of mental retardation.
Comment: A special education director recommended adding to the proposed rule a requirement that a student exhibit deficits of at least two standard deviations in adaptive behavior.
Agency Response: The agency disagrees and considers the recommendation as overly prescriptive. Following rule adoption, the agency will provide additional guidance for evaluators to make informed decisions regarding mental retardation eligibility determination.
Comment: A special education director requested clarification/guidance regarding use of standard error of measurement in mental retardation eligibility determination.
Agency Response: Following rule adoption, the agency will provide additional guidance for evaluators to make informed decisions regarding mental retardation eligibility determination.
§89.1040(c)(8)
Comment: The executive director of the Arc of Texas, five special education directors, an assistant special education director, a consultant, and an education specialist expressed support for the proposed changes.
Agency Response: The agency agrees.
Comment: An attorney, a regional coordinator, and two parents recommend changing "such as" to "including but not limited to" in order to accommodate medical conditions that are new or yet to be defined.
Agency Response: The agency disagrees. It is sufficiently clear that the list of conditions in the rule is not exhaustive.
Comment: One educational diagnostician and a licensed specialist in school psychology recommended clarifying attention deficit hyperactivity disorder by adding "with or without hyperactivity."
Agency Response: The agency disagrees. The common understanding of the phrase "attention deficit disorder or attention deficit hyperactivity disorder" includes the disorder both with hyperactivity and without hyperactivity and is consistent with federal regulations. In addition, the term "attention deficit disorder" is still commonly used in evaluations and should remain in the rule.
Comment: One licensed specialist in school psychology, two ARD facilitators, one special education coordinator, one special education director, and one parent opposed the change because it may imply that a medical diagnosis automatically results in automatic eligibility for special education services.
Agency Response: The agency disagrees. An ARD committee is required to consider evaluation information and must base a determination of eligibility on both multiple sources of information and educational need.
Comment: A special education director requested further alignment with federal regulations.
Agency Response: The agency disagrees and believes the rule is consistent with federal regulations.
§89.1040(c)(9)
Comment: The executive director of the Arc of Texas recommended: (1) deleting subparagraph (B)(ii)(II) and adding that a parent must be reminded of the right to request an independent educational evaluation (IEE); (2) including language covering students identified under current rule; (3) adding an expiration date for subparagraph (B)(ii)(II) if the section is retained; and (4) requiring schools to collect data on the number of students identified as having a learning disability under subparagraph (B)(ii)(II).
Agency Response: The agency disagrees with each recommendation, as follows. Recommendations (1) and (3): Subparagraph (B)(ii)(II) describing learning disability eligibility criteria related to a "pattern of strengths and weaknesses" provides evaluators with an option for determining learning disability eligibility other than use of an RtI process. The agency has determined that a significant number of local educational agencies (LEAs) across the state have yet to adequately prepare for the full implementation of an RtI process. Therefore, it is premature to make RtI a requirement in learning disability eligibility determination. In addition, federal regulation, 34 CFR §300.502, describes requirements regarding IEEs. The agency sees no reason to repeat these federal requirements. Recommendation (2): Students currently identified as meeting learning disability eligibility criteria are subject to the same state and federal law as other students. The agency believes it is unnecessary to exempt these students from requirements under commissioner's rules. Recommendation (4): The agency has an extensive data collection process as required by the agency's State Performance Plan and believes it is unnecessary to exceed these federal requirements as described in 20 USC §1418.
Comment: Two educational diagnosticians and a licensed specialist in school psychology recommended continuing the option of using an intellectual ability (IQ)/achievement discrepancy to identify a learning disability and adding the option that a cognitive processing disorder also be present in determining learning disability eligibility.
Agency Response: The agency agrees. The use of a discrepancy between IQ and achievement in determining learning disability eligibility continues as an option in rule under the "pattern of strengths and weaknesses" provision in subparagraph (B)(ii)(II). Learning disability eligibility under a "pattern of strengths and weaknesses" provision may also include a cognitive processing disorder. In response to public comment, the agency has added clarifying language in subsection (c)(9)(B) regarding this provision. Following rule adoption, the agency will provide additional guidance for evaluators regarding these issues in order to encourage the accurate eligibility determination of learning disabilities. Such guidance will enable evaluators to make informed decisions regarding learning disability eligibility determination.
Comment: A school psychology director, three licensed specialists in school psychology, two psychologists, three educational diagnosticians, two special education directors, an individual, and a parent/licensed specialists in school psychology recommended requiring evaluation information contained in both subparagraph (B)(ii)(I) and (II) by changing "or" to "and."
Agency Response: The agency disagrees. Federal regulation in 34 CFR §300.307(a)(1) prohibits the state from requiring the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a learning disability. However, the agency has determined that a significant number of LEAs across the state are not adequately prepared for the full implementation of an RtI process. Therefore, the rationale for choosing "or" over "and" is to make both methods of determining learning disability eligibility available while the state scales up to fully implement RtI.
Comment: Two executive directors, eight superintendents, two special education teachers, 30 special education directors, five licensed specialists in school psychology, five ARD facilitators, five special education coordinators, four education specialists, an instructional coordinator, three individuals, five attorneys, two assistant special education directors, a parent, a speech-language pathologist, a professor, a special education supervisor and thirteen educational diagnosticians recommended clarification/guidance regarding learning disability eligibility.
Agency Response: The agency agrees. In response to public comment, the agency has added language to subsection (c)(9)(B) clarifying requirements for learning disability eligibility. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage the accurate eligibility determination of learning disabilities.
Comment: An educational diagnostician and a special education coordinator recommended guidance regarding learning disability reevaluations.
Agency Response: Following rule adoption, the agency will provide additional guidance regarding learning disability reevaluation in order to ensure the accurate eligibility determination of learning disabilities.
Comment: A special education director expressed support of the change in rule regarding "intervals" for evaluating learning disability eligibility.
Agency Response: The agency agrees.
Comment: A licensed specialist in school psychology, a special education director, a speech-language pathologist, and four educational diagnosticians expressed opposition to the proposed change in rule due to concerns that the number of students identified as having a learning disability will increase.
Agency Response: The agency disagrees. Federal regulation in 34 CFR §300.307(a)(1) prohibits the state from requiring the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a learning disability. However, the agency has determined that a significant number of local education agencies across the state are not adequately prepared for the full implementation of an RtI process. Therefore, the agency will allow for the use of either RtI or the discrepancy model when determining learning disability eligibility. Following rule adoption, the agency will provide guidance regarding these issues in order to encourage the accurate determination of learning disabilities. Such guidance should enable districts and evaluators to make informed decisions regarding learning disability eligibility determination. In order to address potential over-identification of students with disabilities, schools will need to carefully monitor identification and eligibility determination for all disabilities.
Comment: A licensed specialist in school psychology expressed concern regarding the ability of evaluators to ensure the correct implementation of pre-referral activities required under federal regulations that are included in the proposed rule change.
Agency Response: The agency disagrees. The rule is sufficiently clear and will not result in incorrect implementation of pre-referral activities. Following rule adoption, the agency will provide guidance regarding learning disability eligibility, including guidance regarding pre-referral activities such as RtI, in order to encourage the accurate determination of learning disabilities.
Comment: An assistant special education director and a parent/licensed specialist in school psychology recommended that the proposed rule specify that a comprehensive evaluation is required for the determination of learning disability eligibility.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §§300.301-300.304 and 300.307-300.311 require a full and individual evaluation, using multiple measures assessing the child in all areas of suspected disability. The agency believes it is unnecessary to repeat these federal requirements.
Comment: One licensed specialist in school psychology, two ARD facilitators, one special education coordinator, and one special education director recommended elimination of subparagraph (B)(ii)(II) regarding a "pattern of strengths and weaknesses."
Agency Response: The agency disagrees. The agency has determined that a significant number of local education agencies across the state are not adequately prepared for the full implementation of an RtI process. Therefore, the agency is making both methods of determining learning disability eligibility available while the state scales up to fully implement RtI. Following rule adoption, the agency will provide guidance to districts and evaluators regarding these issues in order to encourage the accurate determination of learning disabilities.
Comment: Six superintendents, four special education directors, three executive directors, an educational diagnostician, and an individual questioned whether the proposed rule serves a justifiable purpose.
Agency Response: The agency disagrees. The purpose of the rule is to address federal requirements that states develop criteria for learning disability eligibility determination.
Comment: Two educational diagnosticians and an individual recommended that reading fluency be removed from possible criteria for learning disability eligibility.
Agency Response: The agency disagrees. Reading fluency skills are specifically listed in federal regulations at 34 CFR §300.309 addressing learning disability eligibility and are therefore included in rule.
Comment: An education specialist recommended that the rule establish a time frame for phasing out use of IQ/achievement discrepancy and phasing in use of RtI in determining learning disability eligibility.
Agency Response: The agency disagrees. While the agency intends to use policy guidance to encourage the use of RtI in learning disability eligibility determination, the agency has determined that a significant number of local education agencies across the state have yet to adequately prepare for the full implementation of an RtI process. Therefore, the agency is making both methods of determining learning disability eligibility available while the state scales up to fully implement RtI. Following rule adoption, the agency will provide guidance to districts and evaluators regarding these issues in order to encourage the accurate determination of learning disabilities.
Comment: An assistant director of special education recommended that proposed rules require schools to document that students are provided research-based instruction by qualified personnel and repeated assessments.
Agency Response: The agency agrees. The rule includes requirements that schools consider data that demonstrates the child was provided appropriate instruction in reading and/or mathematics within general education settings delivered by qualified personnel and data-based documentation of repeated assessments of achievement at reasonable intervals. In response to public comment, the agency has added additional language to subsection (c)(9)(A)(ii) to clarify the meaning of "repeated assessments." In addition, the rule requires schools to use research-based instruction when implementing an RtI process.
Comment: A licensed specialist in school psychology recommended prohibiting the use of IQ/achievement discrepancy in determining learning disability eligibility.
Agency Response: The agency disagrees. While the agency intends to use policy guidance to encourage the use of an RtI process in lieu of an IQ/Achievement discrepancy in determining learning disability eligibility, the agency has determined that a significant number of local education agencies across the state have yet to adequately prepare for the full implementation of an RtI process. Therefore, the agency has included both the use of a "pattern of strengths and weaknesses," which may include IQ/achievement discrepancy and RtI in rule.
Comment: A special education director recommended adding "to the extent practicable" to subparagraph (B)(ii)(I).
Agency Response: The agency disagrees. Adding "to the extent practicable" to the rule would cause unnecessary confusion because RtI is an option rather than a requirement for learning disability eligibility determination.
Comment: A special education director, an ARD facilitator, an instructional specialist, a consultant, seven educational diagnosticians, two psychologists, a professor, and a special education coordinator recommended adding the requirement that a cognitive processing disorder also be present in order to meet learning disability eligibility requirements.
Agency Response: The agency disagrees. Such a requirement would result in unnecessary evaluation. Learning disability eligibility under the "pattern of strengths and weaknesses" provision in rule may also include a cognitive processing disorder. Following rule adoption, the agency will provide additional guidance regarding this issue in order to encourage the accurate determination of learning disabilities.
Comment: An educational diagnostician and a consultant recommended allowing a transition period before requiring that a learning disability eligibility determination include a response to intervention process.
Agency Response: The agency disagrees. The rule makes an RtI process an option rather than a requirement for learning disability eligibility determination. It is therefore unnecessary to allow a transition period before requiring that learning disability eligibility determination include a response to intervention process.
Comment: An educational diagnostician recommended changing the term learning disability to specific learning disability in order to be consistent with federal regulations.
Agency Response: The agency disagrees. The current term "learning disability" has been in use in commissioner's rules for an extended period and is sufficiently clear. Federal regulations in 34 CFR §300.8(c)(10) is referenced in rule to link the commissioner's rules with the regulation.
Comment: An educational diagnostician recommended adding the federal definition of learning disability to the proposed rules.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.8(c)(10) as referenced in rule, define learning disability. As local education agencies are required to follow federal regulations, the agency believes it is unnecessary to repeat these federal regulations in this case.
Comment: An assistant special education director recommended a waiting period prior to the implementation of proposed rules related to learning disability eligibility.
Agency Response: The agency disagrees. Federal regulations at 34 CFR §300.309 regarding learning disability determination, which local education agencies must follow, require states to develop criteria regarding learning disability eligibility determination. The agency sees no benefit in delaying implementation of state rule regarding learning disability eligibility determination.
Comment: A superintendent recommended retaining in §89.1040 only the definition of learning disability as written in federal regulations.
Agency Response: The agency disagrees. Federal regulations at 34 CFR §300.309 regarding learning disability determination, which local education agencies must follow, require states to develop criteria regarding learning disability eligibility determination.
Comment: An educational diagnostician recommended adding the use of "confidence intervals" to learning disability determination.
Agency Response: The agency disagrees. In exercising professional judgment, evaluators often choose to make use of confidence intervals when making a determination regarding learning disability eligibility. Rather than include the option in rule, the agency believes the decision should be left to the discretion of each evaluator.
Comment: The director of professional development of the Texas Classroom Teachers Association recommended that the proposed requirement in subsection (c)(9)(A) to "ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading and mathematics" be changed to "ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading and lack of instruction in mathematics."
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.309(b) clearly state that in order to ensure underachievement in a child suspected of having a learning disability is not due to lack of appropriate instruction in reading or mathematics, a school must consider data that demonstrates the child was provided appropriate instruction in reading and/or mathematics within general education settings.
Comment: Two special education coordinators, three educational diagnosticians, two psychologists, and a professor recommended adding specific language to proposed rule clarifying requirements related to learning disability eligibility.
Agency Response: The agency agrees. In response to public comment, the agency has added language to subsection (c)(9) clarifying requirements for learning disability eligibility. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage the accurate determination of learning disabilities. Such guidance should enable evaluators to make informed decisions regarding eligibility determination.
Comment: A licensed specialist in school psychology recommended adding a definition of "sufficient progress" and clarifying "a pattern of strengths and weaknesses."
Agency Response: The agency disagrees with adding a definition for sufficient progress. The determination of sufficient progress will depend on multiple factors unique to the child and the specific interventions. The agency agrees with adding clarifying language about RtI and "patterns of strengths and weaknesses." In response to public comment, the agency has added language to subsection (c)(9) clarifying requirements for learning disability eligibility. Following rule adoption, the agency will provide additional guidance regarding these issues in order to encourage the accurate determination of learning disabilities. Such guidance should enable evaluators to make informed decisions regarding learning disability eligibility determination.
§89.1040(c)(13)
Comment: Two executive directors recommended allowing students of any age to be found eligible for special education services under a non-specified disability.
Agency Response: The agency disagrees. The eligibility determination of "Noncategorical" should be limited to children between the ages of 3-5 due to the potential difficulty of determining eligibility in very young children.
Comment: One licensed specialist in school psychology, two ARD facilitators, one special education coordinator, and one special education director recommended that the age range for "Noncategorical" extend to age 9 to be consistent with federal regulations.
Agency Response: The agency disagrees. The eligibility determination of "Noncategorical" should be limited to children between the ages of 3-5 due to the potential difficulty of determining eligibility in very young children.
§89.1045(a), Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings
Comment: An individual recommended adding language to the rule indicating that adult students have the same rights at ARD committee meetings as parents did prior to students reaching the age of majority.
Agency Response: The agency disagrees. The agency believes it is unnecessary to restate 19 TAC §89.1049(a), which outlines the rights of adult students.
§89.1047, Procedures for Surrogate and Foster Parents
§89.1047(a)(1)(D)
Comment: Six special education directors and an executive director questioned requiring transition services to be addressed at age 14 rather than the federal requirement of age 16 because ARD committees have the option of addressing transition at any age.
Agency Response: The agency agrees. In response to public comment, subsection (a)(1)(D) is modified to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b).
§89.1047(a)(3)
Comment: A special education director supported the adoption of the change in §89.1047(a)(3) because it provides flexibility for parents and districts by requiring surrogate parents to complete the surrogate parent training program only one time.
Agency Response: The agency agrees.
Comment: A regional coordinator, two parents, and an attorney recommended that the surrogate parent training program not be limited as to who can provide training but include any person, entity, private provider, or Internet company in order to offer the training at a variety of locations and times.
Agency Response: The agency disagrees. The agency is unable to ensure that surrogate parent training provided by entities other than those listed is consistent with federal and state laws.
§89.1047(b)
Comment: Two executive directors recommended the proposed rule clarify that a surrogate parent must be appointed for a child who is a ward of the state and who is enrolled in school prior to the expiration of the first 60 days of placement with a foster parent.
Agency Response: The agency disagrees. The rule references the TEC, §29.015(b), which specifies that the foster parent may act as a parent of the child with a disability only after the child has been placed with the foster parent for at least 60 days. The agency does not believe it is necessary to restate this requirement in rule.
§89.1047(d)
Comment: A special education coordinator, a licensed specialist in school psychology, two ARD facilitators, and a special education director requested clarification on the district process when foster parents refuse training.
Agency Response: The agency disagrees. A foster parent is required to complete a surrogate parent training program in order to act as the parent of a child with a disability or be appointed surrogate parent for the child. Section 89.1047 describes procedures to be used when a school district denies a foster parent the right to serve as a surrogate parent or parent. The agency believes additional clarification is unnecessary in this case.
§89.1050, The Admission, Review, and Dismissal (ARD) Committee
§89.1050(a)
Comment: One parent requested clarification regarding why Texas does not use the term "Individual Education Plan."
Agency Response: The agency disagrees. The agency has long used language consistent with federal regulations, which specifies an "Individualized Education Program (IEP)." The state has also long used the term "admission, review, and dismissal (ARD) committee" in lieu of the term "Individualized Education Program (IEP) team" used in federal regulations.
§89.1050(a)(1)
Comment: One individual suggested that §89.1050(a)(1) include the full text of 34 CFR §300.323(a) in order to provide further clarification.
Agency Response: The agency disagrees. It is unnecessary to restate federal regulations in this case. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1050(c)
Comment: One special education director questioned the necessity of §89.1050(c).
Agency Response: The agency disagrees. The subsection provides clarification as to required ARD committee membership.
Comment: One speech-language pathologist, three educational diagnosticians, two special education directors, five ARD facilitators, one instructional specialist, one teacher, one special education coordinator, and one licensed specialist in school psychology requested guidance regarding ARD committee membership.
Agency Response: Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1050(c)(1)
Comment: One parent commented that §89.1050(a) should be written to include the full text of 34 CFR §300.321(a)(1) in order to provide clarification.
Agency Response: The agency disagrees. The agency believes it is unnecessary to restate the federal regulations in this case.
Comment: One executive director noted that the proposed rule does not require the presence of the student or the student's Part C service provider/representative if the ARD meeting is an initial ARD meeting for a student previously served under Part C.
Agency Response: The agency disagrees. The student's participation in his/her ARD committee meeting is addressed in §89.1050(c)(1)(G). The attendance of a student's Part C service provider or representative is addressed in federal regulations 34 CFR §300.321(f).
§89.1050(c)(1)(B)
Comment: One special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director agreed with language in §89.1050(c)(1)(B).
Agency Response: The agency agrees.
§89.1050(c)(1)(C)
Comment: One executive director commented that the special education teacher attending a student's ARD committee meeting should have expertise in the student's respective disability.
Agency Response: The agency disagrees. Teachers of students with disabilities are required to meet highly qualified standards as described in 34 CFR §300.18 and the agency believes no additional requirement is necessary regarding teacher qualifications.
Comment: Seven special education directors, one director of shared services, one individual, eight superintendents, three attorneys, two educational diagnosticians, and one education specialist indicated that §89.1050(c) should include the required members from 19 TAC §75.1023(d)(1), the career and technical education representative, and 19 TAC §101.1009(b), the language proficiency assessment committee representative.
Agency Response: The agency disagrees. It is unnecessary in this rule to cross reference 19 TAC §75.1023(d)(1) and 19 TAC §101.1009(b), which require career and technical education and language proficiency assessment committee representatives to attend ARD committee meetings under unique circumstances.
Comment: One educational diagnostician, one special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director agreed with language in §89.1050(c)(1)(C).
Agency Response: The agency agrees.
Comment: One licensed specialist in school psychology and one individual recommended that §89.1050(c)(1) include adult students as members of the ARD committee.
Agency Response: The agency disagrees. It is unnecessary to address this issue in this subsection because the rights of adult students are addressed comprehensively in §89.1049.
§89.1050(c)(1)(D)(iii)
Comment: One educational diagnostician, a special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director agreed with §89.1050(c)(1)(D)(iii).
Agency Response: The agency agrees.
§89.1050(c)(1)(E)
Comment: One commenter recommended that §89.1050(c)(1)(E) indicate that ARD committees include persons licensed or certified to administer and interpret assessments.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.321 require a person who can interpret the instructional implications of evaluations, not a person who is certified to administer evaluations.
Comment: One speech-language pathologist, two ARD facilitators, and one teacher questioned whether §89.1050(c)(1)(E) requires that an individual who could interpret assessment data be present at every ARD committee meeting.
Agency Response: The agency disagrees. 19 TAC §89.1050(c)(1)(E) is consistent with federal regulations in 34 CFR §300.321(a)(5), which requires the attendance of an individual who can interpret the instructional results unless the condition of either 34 CFR §300.321(e)(1), regarding attendance, or 34 CFR §300.321(e)(2), regarding excused, has been met.
§89.1050(c)(1)(G)
Comment: One individual recommended that §89.1050(c)(1)(G) include language to indicate students must be invited to ARD committee meetings where transition services are discussed.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.321(b) addresses the participation of students in ARD committee meetings concerning transition services. The agency believes it is unnecessary to repeat federal regulations in this case.
§89.1050(c)(2)
Comment: Nine special education directors, seven superintendents, two attorneys, one education specialist, one assistant director, and two educational diagnosticians recommended that §89.1050(c)(2) be deleted due to the possible confusion resulting from the language and the lack of need for further clarification regarding the issue.
Agency Response: The agency disagrees. The rule changes in this subsection are intended to provide clarification about the participation of regular education teachers in ARD committee meetings.
Comment: One educational specialist indicated agreement with proposed language in §89.1050(c)(2)and(3).
Agency Response: The agency agrees.
Comment: One individual recommended that §89.1050(c)(2) retain current wording as "student" in subsection (c)(1)(G).
Agency Response: The agency disagrees. The term "student" and "child" have long been used interchangeably in commissioner's rule.
Comment: One individual commented that §89.1050(c)(2) should be worded to read as a requirement rather than as a recommendation.
Agency Response: The agency disagrees.
Comment: One director of professional development agreed with the language in §89.1050(c)(2) due to general education teachers who are not teachers of a student being required to attend ARD committee meetings.
Agency Response: The agency agrees.
§89.1050(c)(3)
Comment: One education specialist indicated agreement with §89.1050(c)(3).
Agency Response: The agency agrees.
§89.1050(c)(4)(C)
Comment: Seven teachers, 10 parents, one grandparent, one research assistant, one associate professor, the chair of the Alliance of and for Visually Impaired Texans, one deaf-blind specialist, two individuals, one project manager, one assistant director of special education, three education specialists, one orientation mobility specialist, one past president of the Texas Association for Education and Rehabilitation of the Blind and Visually Impaired, one secretary, one director of an outreach program for students with sensory impairments, and one educational diagnostician requested that §89.1050(c)(4)(C) read, "visual impairments and auditory impairments" as opposed to the current "visual impairments or auditory impairments."
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (c)(4)(C) to indicate the ARD committee shall include a teacher who is certified in the education of students with visual impairments and a teacher who is certified in the education of students with auditory impairments for a student with suspected or documented deaf-blindness.
§89.1050(c)(5)
Comment: One executive director, one director of family support, and one director of professional development recommended that §89.1050 include language to indicate that the parents and the school must agree to a member being excused from an ARD committee meeting prior to the date of the meeting and that a member may not be routinely or unilaterally excused from ARD committee meetings.
Agency Response: The agency disagrees. It is unnecessary to restate the federal regulations in 34 CFR §300.321 regarding this issue.
Comment: One special education director and two executive directors indicated approval that all members of an ARD committee may be excused from attending the ARD committee meeting.
Agency Response: The agency agrees. The excusal provision in this subsection is consistent with federal regulations in 34 CFR §300.321(e)(2).
Comment: Seven teachers, 10 parents, two education specialists, one research assistant, one associate professor, the Chair of the Alliance of and for Visually Impaired Texans, one commenter, one past president of the Texas Association for Education and Rehabilitation of the Blind and Visually Impaired, one project manager, one secretary, one director of an outreach program for students with sensory impairments, and one educational diagnostician requested that §89.1050(c)(5) be re-written to ensure that teachers for the visually impaired are present at every ARD committee meeting for children who are visually impaired.
Agency Response: The agency disagrees. Such a change would be inconsistent with 34 CFR §300.321(e)(1) and (2), which allows parents to agree to nonattendance or excusal of ARD committee members from ARD committee meetings.
§89.1050(e)
Comment: Two executive directors commented that §89.1050(e) should indicate that meetings may be recorded by either the parent or the district only at the discretion of the district and that secret recordings of meetings should be prohibited.
Agency Response: The agency disagrees. Policies regarding recording of ARD committee meetings should be determined at a local level.
§89.1050(f)
Comment: One regional coordinator, two parents, and one attorney recommended that §89.1050(f) include a provision that would prevent a district's attorney from attending an ARD committee meeting unless required by an agreement resulting from a resolution session, mediation, or due process decision or by agreement of the parties.
Agency Response: The agency disagrees. Determinations regarding specific local education agency representative attendance at ARD committee meetings should be determined by local policy.
§89.1050(f)(1)
Comment: One executive director requested that language be added to subsection (f)(1) that would require the new/receiving school district to complete the evaluation "as soon as possible, but not more than 60 calendar days."
Agency Response: The agency agrees. In response to public comment, the agency has added language to subsection (f)(1) clarifying the evaluation timeline for students transferring from one school district to another.
Comment: One special education coordinator, one licensed specialist in school psychology, three ARD facilitators, four special education directors, two executive directors, two diagnosticians, and one instructional specialist agreed with §89.1050(f).
Agency Response: The agency agrees. However, in response to public comment, the agency has added language to subsection (f)(1) clarifying the evaluation timeline for students transferring from one school district to another.
Comment: One educational diagnostician requested clarification of §89.1050(f)(1), specifically concerning when the 60-calendar-day timeline begins.
Agency Response: The agency agrees. In response to public comment, the agency has added language to subsection (f)(1) clarifying the evaluation timeline for students transferring from one school district to another.
Comment: One individual recommended that §89.1050(f)(1) and (f)(2) should only read "school" as opposed to "school district" because the proposed language would exclude students transferring into the new district from a private school.
Agency Response: The agency disagrees. The receiving school district should be in contact with the school district that is responsible for the student's evaluation, in addition to representatives of the private school.
Comment: One individual commented that the 60-calendar-day timeline for completion of an initial evaluation that begins once a district receives signed, written consent from a parent should not restart if the student transfers into a new school district before the evaluation is complete.
Agency Response: The agency disagrees. 34 CFR §300.301(d)(2) indicates that the 60-calendar-day timeline running from the date of consent in the sending school district does not apply to the receiving school district.
Comment: One special education director recommended that §89.1050(f)(1)(2) should read in part, "verified in writing by the sending school district."
Agency Response: The agency disagrees. School districts should initially be able to verify previous special education services in writing or by telephone as determined by local policy.
Comment: One licensed specialist in school psychology commented that §89.1050(f)(1) is of concern.
Agency Response: Commissioner's rule in §89.1050(f)(1) provides clarification for requirements found in the federal regulations in 34 CFR §300.304.
§89.1050(f)(2)
Comment: One executive director recommended adding language to specifically state the requirements that a free appropriate public education (FAPE) be provided to the child, "including services comparable to those described in the IEP from the previous school."
Agency Response: The agency disagrees. It is unnecessary to restate federal regulations in 34 CFR §300.323 in this case.
Comment: One assistant director of special education recommended that §89.1050(f)(2) read in part, "comparable special education services."
Agency Response: The agency disagrees. It is unnecessary to restate federal regulations in 34 CFR §300.323 in this case.
Comment: One individual indicated that §89.1050(f)(2) does not take into account those students who transfer after completing a school year. The commenter recommended that §89.1050(f)(2) reference 34 CFR §300.323(a), which requires a district to have an individualized education program in place for each student at the beginning of each school year.
Agency Response: The agency agrees. In response to public comment, the agency has made changes to both §89.1050(f)(2) and (3) clarifying requirements for students transferring from one school district to another.
Comment: One individual indicated concern that in §89.1050(f)(2) the 30 school day timeline conflicts with federal regulations in CFR §300.323(e), which "does not allow for delays."
Agency Response: The agency disagrees. The federal regulations in34 CFR §300.323 require the receiving school district to provide the student with a FAPE when the student transfers into the school district.
Comment: One individual commented that §89.1050(f)(2) should include language to recognize parents and adult students as having the same rights.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
Comment: Three special education directors and one assistant director indicated agreement with §89.1050(f)(2)(3).
Agency Response: The agency agrees.
§89.1050(f)(3)
Comment: Three special education directors and one assistant director indicated agreement with §89.1050(f)(2)(3).
Agency Response: The agency agrees.
§89.1050(g)
Comment: One educational diagnostician, one special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director requested guidance regarding "who determines appropriate?"
Agency Response: The agency disagrees. The comment has no relation to this subsection.
Comment: Two executive directors recommended that §89.1050(g) indicate that the phrase, "disciplinary actions pertaining to the removal from instruction regarding students with disabilities shall be determined in accordance with," specify federal and state guidelines due to "many disciplinary actions which are not subject to federal or state law but are governed by district policy."
Agency Response: The agency disagrees. Local policies, including those regarding discipline, must be in alignment with federal and state law.
§89.1050(h)(7)
Comment: One individual recommended that §89.1050(h)(7) include language to recognize parents and adult students as having the same rights.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
§89.1052(b), Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP)
Comment: An executive director agreed with requiring continued involvement of the Juvenile Justice Alternative Education Program (JJAEP) in ARD committee meetings related to placement of students with disabilities in JJAEPs.
Agency Response: The agency agrees.
Comment: Two parents, a regional coordinator, and an attorney recommended that along with a JJAEP official, the parent or designee, surrogate parent, relevant county or district attorney, and child's attorney be required to be given notice if an ARD committee meeting is being convened to consider expulsion.
Agency Response: The agency agrees that the student's parent or surrogate parent must receive notice of an ARD committee meeting, and the notice must comply with all applicable federal and state requirements concerning notice, and those provisions are addressed in the rule. The agency disagrees that the school district should be required to provide notice of the ARD committee meeting to the county or district attorney and the child's attorney because such notice, without parental consent, would violate 34 CFR §300.622(a).
§89.1053, Procedures for Use of Restraint and Time-Out
§89.1053(a)
Comment: The director of family support at the Arc of Texas and an executive director supported leaving this subsection intact, except for technical edits.
Agency Response: The agency agrees.
§89.1053(c)
Comment: An appraisal staff leader/educational diagnostician, a licensed specialist in school psychology, and a special education director expressed concern that students expelled for inappropriate behaviors as outlined in the TEC, §37.007(b), should not be considered for a change of placement out of JJAEP because as laws get more restrictive there are fewer alternative placement options for these students.
Agency Response: The agency disagrees. The ARD committee must reconsider the JJAEP placement of a student whose educational or behavioral needs cannot be met in the JJAEP.
§89.1053(h)
Comment: Two parents, an attorney, and a regional coordinator recommended that school resource officers and/or police officials who regularly work in schools be required to participate in training on use of time-out.
Agency Response: The agency disagrees. Training requirements of school resource officers and/or police officials are best determined by their licensing agency. Additionally, the TEC, §37.0021(g), specifically exempts peace officers from this rule.
§89.1053(h)(2)
Comment: Two parents and a regional coordinator recommended training in the use of time-out for school personnel before a staff member is assigned responsibility for implementing time-out.
Agency Response: The agency disagrees. Subsection (h)(2) adequately addresses the timing of training for personnel who implement time-out.
§89.1053(h)(4)
Comment: Two parents and a regional coordinator recommended the rule should specify that training in the use of time-out is research-based and includes best practices.
Agency Response: The agency disagrees. It is unnecessary to include these terms in this rule. The phrase in rule, "current professionally accepted practices and standards," includes research-based and best practices.
§89.1055, Content of the Individualized Education Program (IEP)
§89.1055(b)
Comment: Nine superintendents, two executive directors, and two special education directors stated that there is no way to provide a district-wide assessment of student performance to measure "academic and functional" performance of a child and that this is not required in federal law.
Agency Response: The agency disagrees. The proposed rule is aligned with the requirements in 34 CFR §300.320(a)(6) and therefore, consistent with federal regulations. However, in response to public comment, the agency has added language in subsection (b) clarifying that district-wide assessments as described in this section of rule are optional.
Comment: A special education director stated the proposed rule is unclear and unnecessary and recommended to keep the current rule.
Agency Response: The agency disagrees. The rule is aligned with the requirements in 34 CFR §300.320(a)(6) and therefore, consistent with federal regulations.
Comment: A special education director recommended leaving out "appropriate" as substituted for "allowable" since it is confusing.
Agency Response: The agency disagrees. This rule is aligned with the requirements in 34 CFR §300.320(a)(6) and therefore, consistent with federal regulations.
Comment: An educational diagnostician, two special education directors, a licensed school specialist in psychology, a special education coordinator, and two ARD facilitators requested clarification as to whether to do functional assessments for all special education students or just the students not taking the TAKS test. The commenters also requested clarification on the definition of alternate assessment.
Agency Response: The agency disagrees. This rule is aligned with the requirements in 34 CFR §300.320(a)(6) and therefore, consistent with federal regulations. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1055(c)
Comment: An educational diagnostician, a special education director, a special education coordinator, a licensed school specialist in psychology, and two ARD facilitators indicated support for this subsection.
Agency Response: The agency agrees.
Comment: An educational diagnostician stated that this subsection of proposed rule goes beyond what is required in federal regulations.
Agency Response: The agency disagrees. The rule is aligned with the requirements in 34 CFR §300.106 and 34 CFR §300.320(a)(2) and therefore, consistent with federal regulations.
Comment: A parent recommended that summer programs include a member of the student's core team and that summer teachers be identified no later than six weeks prior to the end of the school year in order for the teachers to be familiar with the student and the student's program when extended school year begins.
Agency Response: The agency disagrees. Decisions regarding personnel are best left to local school policy.
§89.1055(e)
Comment: Many commenters stated that there would be a significant fiscal impact if the proposed rule is adopted resulting in an increase in the length of ARD committee meetings, amount of paperwork, and litigation. The commenters included: 14 special education directors, a director, 10 individuals, four educational diagnosticians, an instructional specialist, an ARD facilitator, two parents, two school psychologists, four attorneys, nine superintendents, a senator, an educational specialist, an assistant director of special education, a representative of psychological and speech services, and an individual.
Agency Response: The agency agrees. In response to public comment, the agency has revised the subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis when needed. Additional revisions clarify that strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns.
Comment: A superintendent and a special education director requested that "may" replace "shall" and "when needed, addressed in the IEP" be added to rule language.
Agency Response: The agency agrees in part and disagrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis when needed. Additional revisions at adoption clarify that strategies discussed in the 11 items are provided as examples and not requirements. The use of the word "shall" is consistent with current rule and ensures consideration of the 11 items but does not require their inclusion in the IEP unless the ARD committee determines they are needed by the student.
Comment: A social worker, a parent, and a nurse stated that education is exponentially less expensive than the cost to provide a lifetime of care.
Agency Response: The agency agrees. One of the goals of education is to support students' preparation for postsecondary education and work.
Comment: An individual and a parent trainer expressed concerns regarding a lack of funding for training and the amount of lawyer fees impacting school districts.
Agency Response: The agency disagrees that there is a lack of funding for training. Each of the regional education service centers and school districts in the state uses federal and state funds to make training available regarding the education of students with autism. Recent revisions to federal regulations create additional opportunities to resolve disputes and minimize legal expenses.
Comment: Two parents expressed concerns regarding tolerance in schools for students with Autism Spectrum Disorders (ASD) in order to provide an appropriate and positive environment.
Agency Response: The agency agrees. The rule supports the education of students with autism.
Comment: A parent solicited feedback from parents, educators, public staff, and administrators about the need for better programs and services for the ASD population as input for the Autism Council's 2006 State Plan. The parent supported the adoption of the rules.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to provide clarification.
Comment: One state senator, 126 parents, a parent and seven family members, a parent and two family members, eight grandparents, a special education coordinator, a school psychologist, a special education director, two ARD facilitators, four teachers, a psychologist, a nursery coordinator, a social worker, a professor, an associate professor who is a physician, a behavior analyst, a nurse, an executive director, a vice-president, board members of different advocacy organizations, and 15 individuals stated their support of the new commissioner's rules and urged the agency to adopt these rules and implement them as soon as possible.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) at adoption to clarify that the 11 items in subsection (e) are to be addressed on an individual basis when needed and that strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
Comment: Three directors, a director and 10 individuals, two attorneys, one educational diagnostician, and eight superintendents expressed concern that, as a result of the proposed rule, a particular category of students have a greater entitlement to specific strategies and that many of the strategies are already required to be in a child's IEP. The commenters stated that this subsection goes beyond what is explicitly required in the federal regulations and the statement "based on peer-reviewed and/or research-based educational programming practices" is unnecessary since it is covered in federal statute. The commenters stated that proposed language in subsection (e)(1) is unclear and makes no sense, subsection (e)(2) through (e)(5) is unnecessary, subsection (e)(6) is unnecessarily burdensome, subsection (e)(7) through (e)(10) is unnecessary, and subsection (e)(11) is inconsistent with existing case law. The commenters stated that litigation regarding the proposed rules will have a fiscal impact. The commenters recommended keeping the existing rule with no changes.
Agency Response: The agency disagrees. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns.
Comment: A chief of developmental pediatrics, a regional coordinator, and a parent quoted proposed rule and stated the need for clarification.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to provide clarification.
Comment: A parent quoted the proposed rule and stated that this subsection should include all disabilities.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs.
Comment: One individual and one parent support the proposed rules regarding autism and requested that reading comprehension be included.
Agency Response: The agency disagrees in part. In response to public comment, the agency has revised subsection (e) to provide clarification; however, it is unnecessary to include consideration of specific academic areas such as reading comprehension in this subsection.
Comment: Eleven special education directors, an assistant special education director, six educational diagnosticians, an education specialist, a parent, a speech pathologist, a teacher, an attorney, and three individuals stated that the existing rule is sufficient, that there is no need to expand the current wording, and that this rule needs to align with federal law.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis when needed. Additional revisions clarify that strategies discussed in the 11 items are provided as examples and not requirements.
Comment: Ten special education directors, an educational diagnostician, instructional coordinator, and a parent recommended deleting this subsection entirely because it exceeds federal requirements and gives entitlement to one disability.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis when needed. Additional revisions clarify that strategies discussed in the 11 items are provided as examples and not requirements.
Comment: A special education director expressed concern that proposed rules give students with ASD a greater entitlement relative to students with other disabilities. The commenter stated that this section of proposed rule increases demands on ARD committees and duplicates IEP requirements. The commenter stated that the proposed rule incorporates 11 additional rules that are not required by federal law and burdens schools with unnecessary paperwork. The commenter questioned methodology in the proposed rule and concluded that the proposed rule is unnecessary.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns.
Comment: Three attorneys, eight special education directors, an executive director, and an individual stated that the proposed rule expands the Autism Supplement and violates federal regulations.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. This subsection supplements, but is not in conflict with federal law.
Comment: A special education director and a parent requested that autism be aligned with the federal wording and that rule be consistent with federal law.
Agency Response: The agency disagrees. This subsection supplements, but is not in conflict with federal law.
Comment: A teacher, two special education directors, three educational diagnosticians, a school psychologist, an ARD facilitator, an instructional specialist, and an individual stated that the proposed new language is excessive and too encompassing and requested that the agency not adopt this rule.
Agency Response: The agency disagrees. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
Comment: An individual supported the proposed rule changes regarding ASD/IEPs.
Agency Response: The agency agrees in part and disagrees in part. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
Comment: Three special education directors, two school psychologists, an attorney, a regional coordinator, three parents, and an individual objected to the language "based on peer-reviewed and/or research-based educational programming practices."
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to clarify that peer-reviewed, research-based educational programming practices are to be used to the extent practicable.
Comment: A parent recommended deleting "and/or" in the phrase "peer-reviewed and/or research-based practices" and replacing it with a comma.
Agency Response: The agency agrees. In response to public comment, the agency has made the recommended change to subsection (e).
§89.1055(e)(1)
Comment: Three special education directors stated that this subsection is unclear and will result in more litigation.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A school psychologist, an educational specialist, a special education director, and an assistant director stated that this subsection is unnecessary, has already been addressed, and should be deleted. A parent stated that entitlement was being given to one disability.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A parent asked for clarification of the type of assessment required by the proposed new language and requested that "high probability of progress" be added to this subsection.
Agency Response: The agency disagrees. It is not necessary to prescribe the type of assessment or to add "high probability of progress" to this item. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: An educational diagnostician, a special education coordinator, a school psychologist, a special education director, and two ARD facilitators stated that this subsection should be in commentary, not rule.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A parent stated that extended educational programming is vital for students with autism.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis and are not requirements unless the ARD committee determines they are needed by the student.
§89.1055(e)(2)
Comment: A school psychologist, an assistant director, an educational specialist, a special education supervisor, and four special education directors stated that this subsection is unclear, unnecessary, and should be deleted.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comments, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A parent stated that this subsection regarding daily schedules is vital for students with autism.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis and are not requirements unless the ARD committee determines they are needed by the student.
§89.1055(e)(3)
Comment: Three special education directors, two school psychologists, an assistant director, a special programs coordinator, and a special education coordinator commented that this section is reportedly unnecessary, vague and unclear, all-encompassing, and will result in more litigation.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) at adoption to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: An education specialist, a special education director, and two parents stated that "viable alternatives" should be deleted because it is redundant and is being used as an escape clause by school districts not to provide services.
Agency Response: The agency disagrees. The "viable alternatives" language is necessary to provide districts with flexibility to address needs on an individualized basis.
Comment: A minister requested that vocational skills be available to all students to this section.
Agency Response: The agency disagrees. Vocational skills, when needed, would be considered under subsection (e)(5).
Comment: A special education director stated that this subsection is already required and that there is no need for expansion.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A parent stated that in-home trainers need to have knowledge of the instruction for and experience with students with ASD. Another parent stated that this was a vital service for students with ASD.
Agency Response: The agency agrees. Existing federal and state law requires personnel to be certified and qualified to work with students with disabilities including autism. In response to public comment, the agency has revised subsection (e) to clarify that the 11 items in subsection (e) are to be addressed on an individual basis and are not requirements unless the ARD committee determines they are needed by the student.
Comment: A speech-language pathologist, a teacher, and two ARD facilitators inquired whether community-based instruction is for all ages of students with ASD.
Agency Response: The agency disagrees. The ARD committee is responsible for determining appropriate services for an individual child. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: A parent requested that the following language be added to this subsection: "acquisition and generalization of skills, to include language, self-help, social, behavioral, academic, reading, math, etc., to the home setting."
Agency Response: The agency disagrees. Subsection (e)(3) sufficiently addresses in-home and community-based training. It is unnecessary to expand the examples because the items listed by the commenter are addressed in the other items contained in subsection (e) and in other components of an IEP.
§89.1055(e)(4)
Comment: Two school psychologists, six special education directors, an assistant director, a special education supervisor, and an education specialist stated that this subsection is already required, is unnecessary, and should be deleted. An individual stated that this subsection makes a school district responsible for implementing the behavior intervention plan of a student with autism in school, the home, and community, which is not possible, and should, therefore, be deleted.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Two special education directors requested that "such as" and subparagraphs (A) and (B) which follow be deleted because it gives the appearance of specifying methodology.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
§89.1055(e)(4)(A)
Comment: A parent recommended that data be taken at frequent, scheduled times; communicated to ARD committee team members, including the parents; and used in the decision-making process.
Agency Response: The agency disagrees. This additional language is not necessary because these issues are addressed in federal regulations concerning the content and implementation of the IEP.
§89.1055(e)(5)
Comment: Seven special education directors, an assistant director, an educational specialist, and a parent stated that this subsection is unnecessary and duplicative and needs to be deleted.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
Comment: Two special education directors, a school psychologist, and two educational diagnosticians requested definition and guidance regarding the following: futures planning, minimum age, and "beginning at any age."
Agency Response: The agency disagrees. The rule is sufficiently clear regarding futures planning, minimum age, and "beginning at any age." Following rule adoption, the agency plans to provide additional clarification and guidance regarding these issues.
§89.1055(e)(6)
Comment: Seven special education directors, two school psychologists, four educational diagnosticians, an instructional specialist, an ARD facilitator, an educational specialist, an assistant director, and an individual commented that this subsection is vague, unnecessary, confusing with federal law, and too encompassing and that the entire section needs to be deleted.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency also will provide guidance pertaining to this subsection of rule.
§89.1055(e)(6)(B)
Comment: Three special education directors, an educational diagnostician, a parent, and two individuals stated that more definition needs to be in rule and that verbiage regarding parent initiative and the child's presence during training should be included.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (2) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
§89.1055(e)(6)(C)
Comment: A special education director and a nurse recommended keeping subparagraph (C) of this paragraph.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised this item to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
§89.1055(e)(7)
Comment: Five special education directors, a special education supervisor, and a school psychologist stated that this subsection is redundant, burdensome, and unnecessary as written.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: One school psychologist and two special education directors stated that proposed rule raises questions regarding Family Educational Rights and Privacy Act (FERPA) and student-to-staff ratios are a decision of the administrator and the teacher.
Agency Response: The agency disagrees. This item does not raise FERPA issues. Student-to-staff ratios are a consideration/decision of the ARD committee as is specified in this subsection.
Comment: Two parents, a special education director, and an anonymous individual stated that "staff" should be replaced by "Teacher;" ratios be related to all IEP goals, not just social/behavioral; and more definition be included in rule.
Agency Response: The agency disagrees. Consideration of student-to-staff ratios should be limited to teachers. The emphasis in this item on social/behavioral progress is consistent with 34 CFR §300.324(a)(2)(i).
§89.1055(e)(7)(C)
Comment: A nurse stated that student-to-staff ratios are important for students with ASD to achieve results.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) to clarify that this item is to be addressed on an individual basis and is not a requirement unless the ARD committee determines they are needed by the student.
§89.1055(e)(8)
Comment: Seven special education directors, a special education supervisor, and a school psychologist stated that this subsection is unnecessary, duplicative, and goes beyond what is required in IDEA.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Two special education directors and an executive director requested that "such as" and the examples of strategies listed be deleted because it gives the appearance of specifying methodology.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) at adoption to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A parent and a nurse commented that it is a benefit to society when students with ASD communicate.
Agency Response: The agency agrees.
§89.1055(e)(9)
Comment: Seven special education directors, a special education supervisor, an educational specialist, and a school psychologist stated that this subsection is unnecessary, duplicative, and may result in more litigation.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Three special education directors and an executive director requested that "such as" and the examples of strategies listed be deleted because it gives the appearance of specifying methodology.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Two parents and an individual commented concerning peer facilitators and social skills, stating that children cannot be forced to be peer facilitators, in-depth training for peer facilitators and social skills is necessary, and social skills assessment needs definition.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) at adoption to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A nurse commented that all students can benefit from a social skills curriculum.
Agency Response: The agency agrees. Social skills supports and strategies for students with autism are sufficiently addressed in this item.
§89.1055(e)(10)
Comment: Three special education directors, a special education supervisor, an assistant director, an educational specialist, and a school psychologist stated that this section of proposed rule is unnecessary, redundant, and already required in federal regulations.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: A school psychologist requested that "such as" and the examples of strategies listed be deleted because it gives the appearance of specifying methodology.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Three parents and a nurse stated that it is extremely important to have trained personnel and that the students and the school system will benefit from having informed and prepared staff.
Agency Response: The agency agrees. Professional educator/staff support is sufficiently addressed in rule.
§89.1055(e)(11)
Comment: Three special education directors, a special education supervisor, and a school psychologist stated that this subsection is inconsistent with case law and will result in more litigation.
Agency Response: The agency disagrees. This specific subsection is in part the product of a committee required by the TEC, §29.0051, to study the current rule pertaining to students with autism and their needs. However, in response to public comment, the agency has revised subsection (e) to clarify that: (1) peer-reviewed, research-based educational programming practices are to be used to the extent practicable; (2) the 11 items in subsection (e) are to be addressed on an individual basis when needed; and (3) the strategies discussed in the 11 items are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The agency believes these revisions should mitigate some of the commenters' concerns. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Three special education directors, two educational diagnosticians, an assistant director, and an individual requested that "such as" and the examples of strategies listed be deleted because it gives the appearance of specifying methodology.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. Following rule adoption, the agency will provide guidance pertaining to this subsection of rule.
Comment: Three music therapists, an individual, and two parents requested that music therapy, sensory integration therapy, and strategies additional to applied behavior analysis be included in the list of this proposed rule.
Agency Response: The agency disagrees in part. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student. The list of strategies in this item is not an exhaustive list of strategies available for consideration by the ARD committee.
Comment: One parent stated that this subsection aligns with IDEA and NCLB.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (e) to clarify that the strategies discussed in this item are provided as examples and are not requirements unless the ARD committee determines they are needed by the student.
§89.1055(g)
Comment: A chief of developmental pediatrics quoted proposed rule.
Agency Response: The agency has no response as the comment simply quotes proposed rule.
Comment: A state senator, a transition specialist, the executive director of the Arc of Texas, and three parents recommended keeping transition at age 14.
Agency Response: The agency disagrees. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified to incorporate this alignment.
Comment: Two assistant directors, 15 special education directors, six superintendents, two educational diagnosticians, two executive directors, an education specialist, a director of shared services, and a school district attorney commented that keeping the age of transition at 14 violates the state statute requiring the agency to develop rules to comply with federal law regarding transition services to students, and recommended age 16 as the age of transition.
Agency Response: The agency agrees. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified at adoption to incorporate this alignment.
Comment: An individual recommended removing nine transition issues and replacing them with two critical provisions: (1) parent friendly information about the transition process, and (2) an age-appropriate transition assessment upon which the goals must be written to actually be done and considered in the development of post-school goals.
Agency Response: The agency disagrees. The nine requirements for transition planning are found in the TEC, §29.011, and therefore, cannot be removed from this subsection. The agency believes this subsection is sufficiently clear.
Comment: One special education director requested a rationale for a higher standard than is required by federal regulations.
Agency Response: The agency agrees. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified to incorporate this alignment.
Comment: An individual noted that the proposed §89.1055(g) needs clarification "of which requirements come at which age and clarity that our 'age 14' rule does not negate the CFR 'age 16' rule."
Agency Response: The agency disagrees. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified to incorporate this alignment.
Comment: An educational diagnostician commented that the proposed §89.1055(g) violates federal law in the change of the transition age of 16 to age 14, and stated that the federal regulations also discourage requiring ARD committees to include additional information in a child's IEP under 34 CFR §300.320 (d)(1).
Agency Response: The agency agrees in part. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified to incorporate this alignment.
Comment: A transition specialist supported the proposed transition rule for the age of 14 or younger and requests the inclusion of 34 CFR§300.320(b)-(c).
Agency Response: The agency disagrees. The agency has determined that it is necessary to align state requirements with federal law. The age for transition planning in Texas will be 16 as established in 34 CFR §300.320(b). Subsection (g) is modified to incorporate this alignment.
§89.1055(g)(4)
Comment: An executive director with an advocacy organization recommended that language be added to the proposed rule to require appropriate, measurable post-secondary goals in the IEP.
Agency Response: The agency disagrees. It is unnecessary to restate the federal regulations at 34 CFR §300.320(b).
§89.1055(g)(9)
Comment: One special education director expressed difficulties working with other agencies regarding post-secondary goals.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.324(c) state, "If the participating agency, other than the public agency, fails to provide the transition services described in the IEP in accordance with §300.320(b), the public agency must reconvene the IEP Team to identify alternative strategies to meet the transition objectives for the child set out in the IEP."
§89.1056(b)(2), Transfer of Assistive Technology Devices
Comment: An individual asked for language clarification to ensure that parents and adult students are recognized as having the same rights rather than leaving it open for interpretation.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
§89.1065, Extended School Year Services (ESY Services)
§89.1065(1)(A)
Comment: One educational diagnostician, one special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director commented that §89.1065(1)(a) contradicts the autism section.
Agency Response: The agency disagrees. Section 89.1065(1) indicates that ESY services for a student must be determined on an individual basis. Section 89.1055 indicates that ESY services for students with autism shall be considered in developing the IEP.
§89.1065(2)
Comment: The executive director of the ARC of Texas and one individual recommended that regression no longer be used as a standard for determining ESY services.
Agency Response: The agency disagrees. Regression serves as a specific, quantitative and/or qualitative measurement that ARD committees use in order to determine the necessity of ESY services.
Comment: The executive director of the ARC of Texas commented that if regression remains a standard for determining ESY services, the section should include language to indicate that services cannot be denied due to absence of data regarding regression.
Agency Response: The agency disagrees that this clarification is necessary. All ARD committee decisions regarding IEP development should be based on quantitative and/or qualitative data, which districts collect and maintain in order to determine the progression or regression of a student toward his/her annual IEP goals.
Comment: One individual commented that §89.1065(2) should include language to ensure that parents and adult students are recognized as having the same rights.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
§89.1065(3)
Comment: One parent commented that the eight-week recoupment standard for ESY service determination is too long.
Agency Response: The agency disagrees. This is a reasonable period of time for recoupment of acquired critical skills.
Comment: One regional coordinator, two parents, and one attorney recommended that emotional harm also be a consideration in determining ESY services.
Agency Response: The agency disagrees. In developing an IEP, it is the responsibility of the ARD committee to determine the impact of a student's IEP upon the student. It is unnecessary to include additional language in this case.
§89.1065(6)
Comment: One parent commented that §89.1065(6) regarding ESY services allows for a student to not receive services.
Agency Response: The agency disagrees. It is the responsibility of the student's ARD committee to review and revise the student's IEP on an individual basis in order to determine appropriate services, including ESY services.
§89.1070, Graduation Requirements
§89.1070(a)
Comment: The executive director of the Arc of Texas, the Texas Council of Administrators of Special Education, and a special education director commented that §89.1070 should be revised in light of Senate Bill (SB) 673, affecting the participation of students with disabilities in graduation ceremonies.
Agency Response: The agency disagrees. It is not within the scope of this rule-making process to make changes in relation to SB 673. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: One individual commented that the agency should clarify language related to dismissal of services under IDEA versus dismissal of services under TEC/TAC upon receipt of a high school diploma.
Agency Response: The agency disagrees. The rule language is sufficiently clear.
Comment: One individual, one educational diagnostician, one special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and two special education directors commented that the agency should clarify the regulatory section with regard to changes in the state assessment system.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (b)(2) at adoption to remove the word "alternate" and to add language to address high school graduation requirements.
§89.1070(b)
Comment: One individual commented that the agency should clarify "same" curriculum and state assessment issues (which assessments related to which options). The same commenter stated that the agency should clarify "graduation types" outlined in §89.1070(b).
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (b) to add language that addresses high school graduation programs.
§89.1070(c)
Comment: One individual questioned whether §89.1070(c) should include a requirement to pass an assessment. The commenter also requested that the subsection be renumbered to provide further clarity. Clarification was also requested regarding "graduation types." Finally, the commenter requested that the term "full-time" be removed due to the fact that it does not necessarily equate to 40 hours of work per week.
Agency Response: The agency disagrees. The rule language is sufficiently clear. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1070(c)(1)
Comment: One special education director requested that the word "and" be added to the end of §89.1070(c)(1) for further clarity.
Agency Response: The agency disagrees. The punctuation at the end of each paragraph within subsection (c) coupled with the "and" at the end of paragraph (3) provides ample clarity.
§89.1070(c)(4)
Comment: One individual requested that the rule provide clarification between modifications and accommodations.
Agency Response: The agency disagrees. The rule language is sufficiently clear. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1070(d)
Comment: One educational diagnostician, one special education coordinator, one licensed specialist in school psychology, two ARD facilitators, and one special education director commented that the agency should clarify whether §89.1070(d) is an FIE or a REED.
Agency Response: The agency disagrees. The rule language is sufficiently clear. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: One individual commented that §89.1070(d) requires clarification regarding whether the student graduating under this subsection would be required to have received credits/curriculum and whether the student would have been required to pass a state assessment.
Agency Response: The agency disagrees. Federal regulations in 34 CFR §300.101(a) clearly state that FAPE must be available to all children through age 21. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1070(e)
Comment: One attorney commented that, with regard to §89.1070(e), 34 CFR §300.305 does not require a summary of performance for students who graduate having fulfilled their IEP requirements. This commenter suggested that subsection (e) be rewritten to read, "all students graduating under §89.1070(b) or (d) shall be provided with a summary of academic achievement." The commenter further suggested that the final sentence of the proposed rule read, "An evaluation as required by 34 CFR §300.205(e)(1) shall be conducted for a student graduating under subsection (c) of this section."
Agency Response: The agency disagrees. The summary of educational performance required by 34 CFR §300.305(e)(3) and subsection (e) of this section is important to all students graduating from high school or leaving school due to age eligibility requirements as they plan for post-secondary activities. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: One special education director commented that the last sentence in §89.1070(e) should be removed because 34 CFR §300.305(e)(2) is "more appropriate" due to the fact that ARD committees are determining a change in eligibility status, not in disability status.
Agency Response: The agency disagrees. An evaluation is required for students graduating under subsection (c) of this section in order to determine that the students have met the requirements of their IEP and are no longer in need of special education services. A summary of educational performance required by 34 CFR §300.305(e)(3) and subsection (e) of this section is important to all students graduating from high school or leaving school due to age eligibility requirements as they plan for post-secondary activities. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: The executive director of the Texas Council of Special Education Administrators of Special Education, seven special education directors, nine superintendents, and three educational diagnosticians commented that §89.1070(e) exceeds federal law by requiring the recommendation and views from adult service agencies and the student's parents be included in a student's summary of performance. The commenters indicated that this requirement would be difficult for a district to meet and requested guidance on how to meet said obligations.
Agency Response: The agency disagrees. The rule requires the views from the parents and adult services agencies "as appropriate." The ARD committee will need to determine when such input is meaningful and appropriate. If the input will facilitate planning for post-secondary activities, the ARD committee will likely rule that the input is appropriate. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1070(f)
Comment: One individual commented that §89.1070(f) should be revised in light of SB 673 to address students who have completed four years of high school but who have not completed their IEP requirements.
Agency Response: The agency disagrees. It is not within the scope of this rulemaking process to make changes in relation to SB 673.
Comment: One individual commented that §89.1070(f) should include language to clarify the rights of adult students and parents.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
§89.1075, General Program Requirements and Local District Procedures
§89.1075(a)
Comment: A regional coordinator for the PATH Project and two parents recommended adding the words "information, letters, notes from the parent given to the school concerning the child's education" to the subsection.
Agency Response: The agency disagrees. The language "must include, but need not be limited to," is inclusive and allows for many types of documentation to be included in the eligibility folder.
Comment: A parent expressed concern that public schools fail to provide the same level of services and accommodations found in the private school system or the home schooling environment.
Agency Response: The agency disagrees. The programs and services available in the public schools are in alignment with the federal regulations.
§89.1076(12), Interventions and Sanctions
Comment: One licensed specialist in school psychology and one educational diagnostician commented that there should be a system of checks and balances as opposed to free reign as defined in §89.1076(12).
Agency Response: The agency disagrees. The language in §89.1076 acknowledges that the list of interventions and sanctions included in paragraphs (1)-(11) is not exhaustive and that the commissioner may use other interventions and sanctions authorized under federal or state statutes and/or regulations. Previously adopted rule language also stated that the commissioner has available sanctions and interventions that included, but were not limited to, those listed in §89.1076(1)-(11). The new language adds clarity by specifically referencing that the commissioner has the authority to take actions granted by federal and state statutes and regulations that are not specifically listed in §89.1076.
§89.1085, Referral for the Texas School for the Blind and Visually Impaired (TSBVI) and the Texas School for the Deaf Services (TSD)
§89.1085(c)
Comment: Two superintendents, four teachers, a special education coordinator, a licensed specialist in school psychology, two ARD facilitators and a special education director expressed support of the proposed change in subsection (c)(1).
Agency Response: The agency agrees. The elimination of the requirement that schools list services the schools cannot appropriately provide these students in a local program will eliminate a potential barrier to ARD committees considering student placement at the TSD or the TSBVI.
Comment: One teacher for the visually impaired expressed opposition to the proposed change in subsection (c)(1) due to a concern that students will have less access to a least restrictive environment as a result of the change.
Agency Response: The agency disagrees. Federal regulations in CFR §§300.114-300.120 require ARD committees to consider least restrictive environment in determining any educational placement for an eligible student.
Comment: Two superintendents recommended eliminating subsection (c)(1) and (c)(2) as no longer necessary due to the proposed change.
Agency Response: The agency disagrees. Requiring ARD committees to list potential student special education services ensures collaboration between school representatives and representatives from the TSD or TSBVI. Schools should also continue to have the option of making an on-site visit to the TSD or TSBVI on an individual case-by-case basis.
Comment: Two assistant special education directors and two special education directors recommended deleting subsection (c)(3) as the requirement is addressed annually by the ARD committee.
Agency Response: The agency disagrees. Current rule requiring ARD committees to determine criteria and estimate timelines for a student's return to the resident school district ensures collaboration between school representatives and representatives from the TSD or TSBVI at the beginning of a student's placement. This requirement establishes a foundation for the successful transition of a student to the school of residence.
Comment: Two special education directors recommended deleting subsection (c)(2) as unnecessary.
Agency Response: The agency disagrees. Schools should continue to have the option of making an on-site visit to the TSD or TSBVI on an individual case-by-case basis.
§89.1096, Provision of Services for Students Placed by their Parents in Private Schools or Facilities
Comment: Sixteen directors of special education, eight superintendents, one educational specialist, two educational diagnosticians, and the executive director of the Texas Council of Special Education Administrators of Special Education commented that the dual-enrollment provision in §89.1096 exceeds the federal law and should be eliminated.
Agency Response: The agency disagrees. The dual-enrollment provision addresses the state's critical need of serving students with disabilities ages 3-4 in the least restrictive environment.
Comment: A special education director questioned the removal of the dual-enrollment provision.
Agency Response: The agency disagrees. The dual-enrollment provision has not been removed. The provision has been amended by language in subsection (c) to reflect IDEA 2004 statute and federal regulations.
§89.1096(a)
Comment: An educational diagnostician supported the proposed rule language in §89.1096(a)(1)-(2).
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (a) at adoption to ensure consistency with federal regulations concerning students with disabilities enrolled by the parents in private schools.
§89.1096(a)(1)
Comment: Eighteen directors of special education, nine superintendents, one assistant director, one school district attorney, two educational diagnosticians, and the executive director of the Texas Council of Special Education Administrators of Special Education commented that the inclusion of pre-school and day care facilities exceeds and conflicts with federal law.
Agency Response: The agency disagrees that the inclusion of pre-school and day care exceeds and conflicts with federal law. However, in response to public comment and to avoid confusion, the agency has revised subsection (a)(1) to remove the specific reference to day care in the rule. Following rule adoption, the agency will provide further guidance related to day care.
Comment: A special education director supported the proposed rule language.
Agency Response: The agency agrees. In response to public comment, the agency has revised subsection (a) at adoption to ensure consistency with federal regulations concerning students with disabilities enrolled by the parents in private schools.
Comment: A special education director commented that the inclusion of day cares and pre-schools will present a hardship for local education agencies to provide services to significantly more students.
Agency Response: The agency disagrees. In response to public comment and to avoid confusion, the agency has removed the specific reference to day care in the rule. Following rule adoption, the agency will provide further guidance related to day care. Only eligible students attending a preschool that meets the narrow definition of private school in this subsection, including the nonprofit requirement, will have the option to select a services plan under subsection (d) of this section.
Comment: A special education director commented on the absence of home schools in the definition of private school.
Agency Response: The agency disagrees. Home schools are addressed in subsection (a)(2).
Comment: A lead diagnostician, director of special education, ARD facilitator, instructional specialist, and diagnostician commented that day care should be removed from the list since day cares cannot be considered a school.
Agency Response: The agency disagrees. However, in response to public comment and to avoid confusion, the agency has removed the specific reference to day care in the rule. Following rule adoption, the agency will provide further guidance related to day care.
§89.1096(a)(1)(B)
Comment: A special education director requested additional clarification on interpreting §89.1096(a)(1)(B).
Agency Response: Following rule adoption, the agency will provide additional guidance on parentally-placed private school students with disabilities, including the implementation of §89.1096.
Comment: A special education director requested additional clarification on the term "elementary education" related to students ages 3-5.
Agency Response: Following rule adoption, the agency will provide additional guidance on parentally-placed private school students with disabilities, including the implementation of §89.1096.
§89.1096(a)(2)
Comment: Eighteen directors of special education, nine superintendents, two educational diagnosticians, one assistant director, and the executive director of the Texas Council of Special Education Administrators of Special Education commented that the exceptions made for home schools are not clear or supported in case law.
Agency Response: The agency disagrees. The United States Office of Special Education Programs (OSEP) Analysis of Comments and Changes concerning 34 CFR §300.133 published in 71 Federal Register 46594, indicates that the question of whether a home school is considered a private school is a matter left to state law. The agency has also confirmed with OSEP that a home school need not have nonprofit status in order to qualify as a private school.
§89.1096(b)
Comment: An education service center special education administrator commented that §89.1096(b) implies a requirement for an ARD committee meeting for every private school student upon referral to the local school district. The commenter stated that OSEP guidance states that the local education agency need not make FAPE available to the child.
Agency Response: The agency disagrees. The intent of §89.1096(b) is for local school districts to convene an ARD committee meeting to determine whether FAPE can be offered upon referral of the parentally-placed private school students with disabilities for dual enrollment. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1096(c)
Comment: A special education director supported the proposed rule language.
Agency Response: The agency agrees.
Comment: A parent requested clarification on dual enrollment.
Agency Response: The agency agrees. In response to public comment, the agency added clarification regarding a school district's responsibilities in providing special education and related services.
Comment: A lead diagnostician, director of special education, ARD facilitator, instructional specialist, and diagnostician commented that services need to be provided by one district, either where the family resides or where the private school is located.
Agency Response: The agency disagrees. The rule addresses two distinct instances in which a school district's responsibilities differ. In the instance where parents of an eligible student ages 3 or 4 "dual enroll" their child in both the public school and the private school, "The public school district where a student resides is responsible for providing special education and related services to a student whose parents choose dual enrollment" [§89.1096(c)]. In the instance where parents of an eligible student ages 3 or 4 decline dual enrollment for their student and request a services plan, "The public school district where the private school is located is responsible for the development of a services plan, if the student is designated to receive services under 34 CFR, §300.132" [§89.1096(d)].
§89.1096(d)
Comment: Sixteen directors of special education, nine superintendents, two educational diagnosticians, one educational specialist, and the executive director of the Texas Council of Special Education Administrators of Special Education commented that §89.1096(d) allows the students of parents who decline dual enrollment to be counted in proportionate share calculations, which conflicts with OSEP and previous TEA guidance.
Agency Response: The agency disagrees. This subsection is in alignment with changes in federal regulations. Following rule adoption, the agency will address this issue in guidance on the proportionate share calculation concerning parentally-placed private school students with disabilities.
Comment: The executive director of the Arc of Texas proposed amending rule language to read, "Parents of an eligible student ages 3 or 4 who decline dual enrollment for their student must be told of their right to request a services plan…."
Agency Response: The agency disagrees. The LEA's responsibility concerning the development of a services plan is clear in 34 CFR §300.132(a) and 300.137 through 300.139 [OSEP Guidance, November 2006]. Adding a verbal notification requirement exceeds federal requirements and would be problematic for the state to monitor. The parent will receive information about special education services through the LEA's Child Find responsibility reflected in 34 CFR §300.131.
Comment: Two special education directors supported the proposed rule language.
Agency Response: The agency agrees.
Comment: A special education director requested clarification on the responsibilities of the school in the student's attendance zone.
Agency Response: The agency agrees. The rule addresses two distinct instances in which a public school district's responsibilities differ. In the instance where parents of an eligible student ages 3 or 4 "dual enroll" their child in both the public school and the private school, "The public school district where a student resides is responsible for providing special education and related services to a student whose parents choose dual enrollment" [§89.1096(c)]. In the instance where parents of an eligible student ages 3 or 4 decline dual enrollment for their student and request a services plan, "The public school district where the private school is located is responsible for the development of a services plan, if the student is designated to receive services under 34 CFR, §300.132" [§89.1096(d)].
Comment: A special education director requested adding language from 34 CFR §300.132 to the proposed rule.
Agency Response: The agency disagrees. The reference to 34 CFR §300.132 is sufficient and consistent with CFR references throughout the rules.
§89.1096(f)
Comment: One individual commented that §89.1096(f) should include language to recognize parents and adult students as having the same rights.
Agency Response: The agency disagrees. It is unnecessary to restate §89.1049(a), which outlines the rights of adult students.
§89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel
§89.1131(b)(1)
Comment: Two speech-language pathologists and an interested stakeholder requested that the phrase "speech therapy instructional services" be changed to read "speech-language pathology services" in order to indicate a broader scope or services available to students.
Agency Response: The agency disagrees. The rule language is sufficiently clear regarding speech services. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue. It is unnecessary to revise rule in order to provide this clarification.
§89.1131(b)(3)
Comment: An educational diagnostician, a teacher, a special education coordinator, a licensed specialist in school psychology, two ARD facilitators, and a special education director asked whether teachers of students with visual impairments (VI) have to attend ARD committee meetings. The commenters implied that the proposed removal of language contradicts VI teacher standards. A teacher made a similar comment stating that VI teachers have specific training designed to meet the needs of students with visual impairments and should be required to attend ARD committee meetings.
Agency Response: The agency disagrees. Provisions addressing the attendance of these professionals at ARD committee meetings is found in §89.1050(c)(4)(A). Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
§89.1131(d)
Comment: A lead interpreter, two educational consultants in deaf education, a special education coordinator, a program coordinator, and another concerned stakeholder encouraged the agency to recognize the Educational Interpreter Performance Assessment (EIPA) as criteria for educational interpreter certification.
Agency Response: The agency agrees. Even though the entity that provides the EIPA does not provide certification or licensure for educational interpreters, the agency has revised subsection (d) in response to public Comment: The agency has added language in subsection (d) indicating the agency recognizes as Registry of Interpreters for the Deaf (RID) certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA. The RID certified member will be required to maintain certified member status in the RID in order to be eligible to provide interpreting services to students who are deaf or hard of hearing in Texas. Following rule adoption, the agency plans to provide additional clarification and guidance regarding this issue.
Comment: An educational consultant in deaf education encouraged recognition of the EIPA, noting that 14 states have recognized the EIPA and recommending that the proficiency score should be at least 3.0. A special education coordinator also recommended a score of 3.0 on the EIPA as an acceptable passing standard.
Agency Response: The agency disagrees. However, in response to public comment, the agency has revised subsection (d) indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA. The agency will recognize an interpreter who is certified by or a certified member of the RID based on EIPA performance as eligible to provide interpreting services to students who are deaf or hard of hearing in Texas as long as that interpreter maintains certified member status through the RID.
Comment: Two education consultants in deaf education stated that recognition of the EIPA would facilitate the hiring of out-of-state interpreters. One commenter also pointed out that the EIPA allows the interpreter to be assessed in American Sign Language (ASL) or Manually Coded English (MCE). The other commenter further proposed that since the EIPA is only a performance standard, reassessment every three to five years to ensure maintenance of proficiency levels should occur.
Agency Response: The agency agrees in part. In response to public comment, the agency has revised subsection (d) indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA. The agency anticipates that recognition of RID certified member status will facilitate hiring interpreters from other states. The agency agrees that the EIPA does not provide certification and that continuing education is an important part of remaining certified. The RID has a rigorous continuing education requirement and so recognition of a certified RID member based on EIPA skills will ensure that continuing education remains a priority. The agency recognizes the RID and the Texas Board for Evaluation of Interpreters (BEI) as the authorized entities to provide interpreter certification.
Comment: A special education director recommended adding the phrase "or other national educational interpreter certification" to the rule stating that finding qualified interpreters is difficult and this rule will make it even more difficult. A program coordinator encouraged recognition of the educational sign skill evaluation.
Agency Response: The agency disagrees. An interpreter must be a certified member of the RID or have a certificate issued by the BEI to provide interpreting services to students who are deaf or hard of hearing in Texas. The RID also recognizes the National Association of the Deaf (NAD) assessment. In response to public comment, the agency has revised subsection (d) indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA.
Comment: A special education coordinator, an interested stakeholder, and a program coordinator expressed concern that wait time for interpreter testing is a significant problem. The program coordinator also stated that limited interpreter testing sites are causing a real crisis. The special education coordinator expressed concern that the state is in danger of losing educational interpreters who are trying to pass the test.
Agency Response: The agency agrees and is aware of the critical timelines involved with certification of educational interpreters. The agency is gathering stakeholder input to address these concerns in the future.
Comment: The president of the Texas Association of the Deaf (TAD), a regional coordinator, two parents, and a former executive director of a center for the deaf and hard of hearing who is also a parent of a deaf daughter expressed supported for this rule change. The TAD commenter also encouraged the agency not to recognize other certification entities. One of the parents also mentioned that recognizing other assessments might lower the standard and lead to use of interpreters who are not qualified.
Agency Response: The agency agrees. An interpreter must be certified by or a certified member of the RID or have a certificate issued by the BEI to provide interpreting services to students who are deaf or hard of hearing in Texas. In response to public comment, the agency has revised subsection (d) at adoption indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA.
Comment: A special education director expressed concern that this rule eliminates emergency permits for interpreters and encouraged continuation of these permits as previously stated in rule, allowing districts to "home grow" interpreters.
Agency Response: The agency disagrees. Federal regulation in 34 CFR §300.156(a)(2)(ii) makes it clear that certification or licensure requirements may not be waived on an emergency, temporary, or provisional basis. In response to public comment, the agency has revised subsection (d) at adoption indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA.
Comment: A special education coordinator expressed concern that districts will have few options in providing appropriate services to students who are deaf or hard of hearing. The commenter stated, "We can not close our doors or NOT provide interpreting services!" An interested stakeholder also mentioned that the rule is restrictive and might result in students not having access to interpreters which could force them back into segregated, self-contained classes. Another concerned stakeholder stated that a decrease in interpreters in border and rural areas might force districts to place fewer students in general education classroom settings.
Agency Response: Federal regulation in 34 CFR §300.156(a)(2)(ii) makes it clear that interpreter certification or licensure requirements may not be waived on an emergency, temporary, or provisional basis. In response to public comment, the agency has revised subsection (d) indicating the agency recognizes as RID certified, any interpreter who is certified by or a certified member of the RID based on performance on the EIPA.
Comment: A special services provider encouraged using the State Board for Educator Certification (SBEC) to certify educational interpreters and not the BEI, because the Department of Assistive and Rehabilitative Services (DARS) has a role in assisting individuals to become productive members in the community. The commenter further suggested that if SBEC was involved in the certification of educational interpreters, more out-of-state interpreters would be available to students in Texas.
Agency Response: The agency disagrees. Recognizing interpreters who are certified members of the RID or the BEI is sufficient in ensuring that educational interpreters are available to students who are deaf or hard of hearing. The agency has determined that additional certification agencies are not required. In response to public comment, the agency has revised subsection (d) indicating the agency recognizes as RID certified any interpreter who is certified by or a certified member of the RID based on performance on the EIPA.
Comment: A certified interpreter commented that requiring interpreters to be certified is great but expressed concern regarding the lack of training opportunities, especially in the Rio Grande Valley where there are only a few certified interpreters. This commenter stated that funding for training and certification maintenance are the key issues. A BEI level one interpreter mentioned the shortage of interpreters in the Valley and across the state; encouraged the development of additional training programs; and mentioned support of the requirement for interpreters to be certified. A former executive director of a center for the deaf and hard of hearing who is also the parent of a deaf adult daughter expressed a need for additional interpreter training opportunities.
Agency Response: The agency agrees that interpreters must be certified and agrees that additional training opportunities throughout the state are important. The agency is proposing stakeholder activity to address training issues in the future.
Comment: Two concerned stakeholders expressed concern regarding BEI testing of interpreters.
Agency Response: The agency agrees. The agency is proposing stakeholder activity to address this issue in the future.
§89.1180, Pre-hearing Procedures
§89.1180(c)
Comment: Two executive directors commented that transcription is a positive addition to the rules.
Agency Response: The agency agrees that transcription of the pre-hearing conference is positive procedure to be added to the hearing process.
Comment: One individual and one educational diagnostician commented that subsection (c) should not be eliminated.
Agency Response: The agency agrees. Subsection (c) was not proposed for repeal.
Comment: Three special education directors and one assistant director commented that recording and transcribing the pre-hearing is positive.
Agency Response: The agency agrees.
Comment: One education specialist urged the agency to adopt the proposed rule.
Agency Response: The agency agrees.
§89.1180(g)
Comment: One regional coordinator, two parents, and one attorney proposed that the agency change the authority of the hearing officer to limit discovery from "shall" to "may" and permit the hearing officer to expand the scope of discovery beyond the limits of the APA.
Agency Response: The agency disagrees. The rule is consistent with rules governing discovery in other federal and state administrative hearings.
§89.1180(h)
Comment: Two executive directors and one superintendent commented that the rule should not be eliminated.
Agency Response: The agency agrees. As proposed, language related to dismissal or nonsuit after the Disclosure Deadline was to be deleted. In response to public comment, however, language is reinstated as new subsection (i).
Comment: One attorney, 15 special education directors, eight superintendents, one special education supervisor, and one special education diagnostician commented that the rule has been beneficial and that the agency should retain it as it is currently in the rules.
Agency Response: The Agency agrees. In response to public comment, language is reinstated as new subsection (i).
Comment: Two special education directors commented that the current rule keeps expenses down for districts and urged the agency not to delete the rule.
Agency Response: The agency agrees. In response to public comment, language is reinstated as new subsection (i).
Comment: One attorney and one special education director commented that the current rule prevents abuse of system and urged the agency to retain the rule.
Agency Response: The agency agrees. In response to public comment, language is restated as new subsection (i).
Comment: One special education director commented that the rule eliminated excessive expenses and legal hassles and urged the agency to reinstate the rule.
Agency Response: The agency agrees. In response to public comment, language is reinstated as new subsection (i).
Comment: One special education director commented that elimination of the rule would allow for re-filings of same issue and urged that the agency retain the rule.
Agency Response: The agency agrees. In response to public comment, language is reinstated as new subsection (i).
General Comments
Comment: A special education director, a special education coordinator, a licensed specialist in school psychology, and two ARD facilitators commented that an unidentified rule change hinders meeting timelines and is very time consuming.
Agency Response: The agency is unable to respond due to the lack of specificity in the comment.
Comment: An educational diagnostician expressed concern that the rules do not address accessibility of textbooks and supported materials referenced in federal regulations.
Agency Response: The agency disagrees. It is unnecessary to repeat federal requirements in commissioner's rules in this case.
Comment: A special education student commented on the importance of the IEP stating that the IEP is about respect and creativity. The student also commented that it is clear to everyone and talking together really helps.
Agency Response: The adopted rule actions implementing federal regulations will result in improved services for students with disabilities.
Comment: A parent commented on the experiences of her daughter in different schools in several states with early intervention. The parent expressed concern about available funding and wasteful spending on ineffective special education programs. The parent also commented that the best interests of children served through programs at the best price could make things happen for special education students.
Agency Response: The adopted rule actions implementing federal regulations will result in improved services for students with disabilities.
For additional information, email rules@tea.state.tx.us.