Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1050(e) include a reference to requesting mediation when a parent requests an ARD committee meeting. Additionally, the commenters recommended that the written notice of refusal to hold an ARD committee meeting be consistent with the prior written notice requirements of 34 CFR, §300.503. The commenters also suggested that a parent's request for an ARD committee meeting should trigger an LEA's duty to comply with proposed §89.1196(f) regarding notice of IEP facilitation.

Agency Response: The agency disagrees. Because §89.1193 makes it clear that mediation is available to parents or LEAs at any time, it is not necessary that §89.1050(e) refer to mediation. Additionally, prior written notice as contemplated under 34 CFR, §300.503, does not include an LEA's refusal to convene an ARD committee meeting; therefore, the requirements at 34 CFR, §300.503, do not apply to the notice required in §89.1050(e). Finally, the agency does not agree that it is necessary for a parent's request for an ARD committee meeting to require an LEA to provide information about IEP facilitation because LEAs are not required to offer IEP facilitation.

Comment: The Arc, TCTA, an advocate, the Continuing Advisory Committee (CAC), DRTx, TCDD, and an individual who provided a list of names of individuals and organizations that purportedly support her comments disagreed with the deletion of current §89.1050(e). The commenters expressed concern that teachers will no longer be able to indicate disagreement with the IEP, that being able to record the decisions of the ARD committee is important for the committee members and others to understand the IEP and the intent of the committee, and that ARD committee members' concerns will no longer be documented in the ARD committee report.

Agency Response: The agency disagrees. The deletion of current §89.1050(e) is required in order to align the rule with the requirements of TEC, §29.005 and §29.0051. TEC, §29.005(f), provides that a student's IEP may be required to include only information included in the model form developed by the agency under TEC, §29.0051. Because the requirements in the current §89.1050(e) such as documenting the decisions of the ARD committee and indicating each member's agreement or disagreement with the committee's decisions are not required by state or federal law, the agency cannot impose such requirements in rule. However, ARD committees may continue to include deliberations and other information that is not legally required in the IEP if they choose.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1050(f) clarify that all ARD committee members must have the opportunity to participate in ARD committee meetings and to share information and documentation with the other members of the committee. The commenters stated that such clarification will help parents know that they may share whatever reports they have with the rest of the ARD committee.

Agency Response: The agency disagrees. Because the rule provides that all members of the ARD committee have the opportunity to fully participate in ARD committee meetings, the agency has determined that no further clarification is required to explain that full participation includes the sharing of relevant documentation.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1050(f)(1) include a reference to proposed §89.1050(f)(4) to clarify that those members of the ARD committee who disagree with the IEP may write their own statement of disagreement.

Agency Response: The agency disagrees that additional clarification or that a reference is needed. Section 89.1050(f)(4) clearly explains that parents may write their own statement of disagreement and that the statement must be included in a student's IEP.

Comment: TCTA recommended that the agency retain current §89.1050(f)(1), requiring that, in the case of a student who is in the process of being evaluated for special education eligibility, the student's current LEA and former LEA must work together as necessary and as expeditiously as possible to ensure prompt completion of the evaluation.

Agency Response: The agency disagrees. Much of the language in current §89.1050(f)(1) was retained but moved to proposed §89.1011(f). The language is derived from 34 CFR, §300.301(d)(2) and (3), and from 34 CFR, §300.304(c)(5).

Comment: The Arc, DRTx, and TCDD commented that proposed §89.1050(f)(3) is insufficient without a reference to 34 CFR, §300.503, which requires an LEA to provide prior written notice to the parents of a student with a disability a reasonable time before an LEA proposes to initiate or change the identification, evaluation, or educational placement of a student or the provision of FAPE to a student or before an LEA refuses to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free appropriate public education (FAPE) to a student.

Agency Response: The agency disagrees. Prior written notice under 34 CFR, §300.503, is addressed in the subsequent subsection, new §89.1050(g). Therefore, it is not necessary to duplicate the information.

Comment: TCASE and a special education director expressed agreement with the changes in proposed §89.1050(f)(4) that clarify that the parent is the ARD committee member who must be given the opportunity to write a disagreement statement.

Agency Response: The agency agrees.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments expressed concerns that, because proposed §89.1050(f)(4) permits parents to write their own statements of disagreement, special education hearing officers may view the statements as evidence that the parents refused to collaborate in the IEP development process.

Agency Response: The agency disagrees. Permitting parents to write their own statements of disagreement with the IEP is not new. Section 89.1050(f)(4), which was previously §89.1050(h)(5), requires LEAs to offer parents the opportunity to write their own statements of disagreement. In addition, the agency has found that parents who disagree with the IEP welcome the opportunity to submit the written reasons why they disagree and has determined that requiring LEAs to provide that opportunity ensures that the parents' concerns are heard.

Comment: The Arc, DRTx, TCDD, TSTA, and TCTA recommended that proposed §89.1050(f)(4) not be limited to a parent's statement of disagreement with the IEP, but should also allow any member of the ARD committee who disagrees to submit a statement of disagreement so as to achieve full participation by all members. The Arc, DRTx, and TCDD additionally recommended that the proposed rule permit a parent's statement of disagreement to be attached to the IEP.

Agency Response: The agency disagrees. However, there is nothing in the rule that would prohibit the ARD committee from allowing members other than parents an opportunity to write a statement of disagreement if the ARD committee so chooses. The rule provides that a written statement of the basis for the disagreement must be included in the IEP, and the agency has found that ARD committees are in the best position to determine how to include a statement of disagreement in the IEP.

Comment: The Arc, DRTx, TCDD, and the Mexican American Legal Defense and Educational Fund (MALDEF) commented that proposed §89.1050(h) needs additional clarification with regard to providing a parent who is unable to speak English with a translated audio recording of a student's IEP and not a recording of a student's ARD committee meeting. MALDEF also recommended that proposed §89.1050(h) clarify that the audio recording must include all parts of a student's IEP required by 34 CFR, §300.320 and §300.324, and §89.1055.

Agency Response: The agency disagrees. The rule specifically addresses written copies and audio recordings of IEPs for parents who are unable to speak English and includes no discussion of ARD committee meetings. Therefore, the agency has determined that additional clarification is not needed. In addition, TEA has determined that references to the other rules and regulations are not necessary to clarify that the audio recording must include all parts of a student's IEP.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments expressed concern with the removal of current §89.1050(h)(7). The individual explained that the removal of current §89.1050(h)(7) results in parents not being provided with information related to the use of mediation.

Agency Response: The agency disagrees. Section 89.1050(h)(7) was removed because it is no longer necessary given that rules have been added explaining a parent's right to request mediation, file a complaint, or file a due process hearing.

Comment: TCTA expressed concern that proposed §89.1050(i)(3) makes the timeline within which a previous LEA must provide a student's education records to the new LEA contingent upon the new LEA requesting the records. According to TCTA, there have been instances in which the new LEA has been unaware that it needed to request special education records, which delayed receiving relevant portions of the student's IEP.

Agency Response: The agency disagrees. New §89.1050(i)(3) was amended to incorporate the timeline in TEC, §25.002, which requires that a student's previous LEA provide a student's records to the new LEA not later than the 10th working day after the date a request is received. Furthermore, the rule references 34 CFR, §300.323(g), which requires that the new LEA in which the student enrolls take reasonable steps to promptly obtain the student's IEP and other records and that the previous LEA take reasonable steps to promptly respond to the request from the new LEA.

§89.1053, Procedures for Use of Restraint and Time-Out.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(b) clarify that the purpose of the section is to prevent and reduce the use of restraint and to protect and ensure the safety of students and school personnel.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule, but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(b) define chemical restraint.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(b)(1) be amended so that the definition of "emergency" no longer includes the threat of imminent, serious property destruction.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(c) include language explicitly prohibiting the use of chemical restraint of students.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(c) include language explicitly restricting the use of restraint until after school personnel have attempted de-escalation strategies and alternatives to restraint.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(c)(4) be revised to explicitly prohibit restraints that interfere with a student's ability to breathe.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(d) be revised to require that school personnel demonstrate competence in the use of restraint. The commenters also suggested that the rule include specific training requirements.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

Comment: The Arc, DRTx, and TCDD recommended that §89.1053(e) be revised to require an ARD committee meeting within 10 school days of the use of restraint to consider whether a student requires a functional behavioral assessment, a reevaluation, or a new or revised behavioral intervention plan to address the behavior that resulted in the restraint.

Agency Response: The agency disagrees. The only substantive changes to §89.1053 are in subsections (l) and (m) and relate to the use of restraint by peace officers. The agency declines to make changes at this time to portions of the rule that were not addressed in the proposed rule but will consider the need for changes to other portions of §89.1053 and will seek public comment on any proposed changes.

§89.1055, Content of the Individualized Education Program.

Comment: A parent recommended that the word "if" be replaced with the word "when" in proposed §89.1055(g) to state that a student's behavior improvement plan or behavioral intervention plan must be provided to a student's teachers when the ARD committee determines that the student needs such a plan.

Agency Response: The agency disagrees. The wording of the new §89.1055(g) is consistent with the language in TEC, §29.005(g).

Comment: TCTA commented that proposed §89.1055(g) is consistent with legislation passed by the 83rd Texas Legislature, Regular Session, 2013.

Agency Response: The agency agrees.

Comment: The Arc, DRTx, and TCDD recommended that the agency add language to proposed §89.1055(g) requiring that a behavioral intervention plan be based on a functional behavioral assessment and requiring that a student's teachers and related service providers receive a copy of the behavioral intervention plan.

Agency Response: The agency disagrees. The rule is consistent with TEC, §29.005(g), which does not require that a student's behavioral intervention plan be based on a functional behavioral assessment. Additionally, other than the specific requirements related to discipline as outlined in 34 CFR, §300.530, IDEA does not require that a student's behavioral intervention plan be based on a functional behavioral assessment. The agency has determined that including a requirement related to functional behavioral assessments in the rule would go beyond the authority in TEC, §29.005(g), and IDEA. Additionally, the agency has determined that it is not necessary to include a requirement to provide the behavioral intervention plan to a student's related service providers. IDEA regulations at 34 CFR, §300.323(d), require that a student's IEP be accessible to a student's related services providers and require that the providers be informed about their specific responsibilities related to implementing a student's IEP and about the specific supports that must be provided for a student in accordance with his or her IEP.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1055(h) require that a student's IEP be updated annually with regard to transition programming. The commenters also recommended additional items that an ARD committee must consider when developing a student's transition program, including: age-appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills, including a functional vocational evaluation; appropriate measurable postsecondary goals based upon transition assessments; and the transition services needed to assist a student in achieving his or her postsecondary goals, including courses needed to receive a diploma under the Foundation High School Program and/or an endorsement under the Foundation High School program. Finally, the commenters recommended that the proposed rule mandate that a student's ARD committee ensure that a student's IEP meets the requirements of a student's personal graduation plan.

Agency Response: The agency clarifies that a student's IEP must be reviewed at least annually in accordance with 34 CFR, §300.324. This includes a review of a student's transition services. The agency disagrees with the recommendation to add language because it is largely a restatement of the federal transition requirements that are included in §89.1055(i). The Foundation High School Program, endorsements, and personal graduation plans are addressed in other rules.