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.