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.