Agency Response: The agency agrees that in situations where parental consent for the initial evaluation is provided less than 35 school days before the last day of instruction for the school year, the evaluation is due 45 school days after consent is obtained, which means the evaluation will be due the next school year. The agency notes, however, that the language setting forth the timelines established by §89.1011(c)(1) comes directly from TEC, §29.004(a)(1).

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1011(c)(1) reflect the legislative intent that an extension of the initial evaluation timeline for a student who is absent for three or more school days is optional.

Agency Response: The agency disagrees. The language in §89.1011(c)(1) mirrors the language in TEC, §29.004(a)(1), which states that if a student is absent for three or more days during the evaluation period, the timeline "must be extended" by the equivalent number of days.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that proposed §89.1011(c)(2) relieves an LEA of its child find obligations when it is aware of a child with a suspected disability.

Agency Response: The agency disagrees. The language in §89.1011(c)(2) is consistent with TEC, §29.004(a)(2), which establishes that the timeline for the written report of a full individual and initial evaluation begins the first school day after the date that an LEA receives the signed written consent from the student's parent.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1011(d) include references to §§89.1040, 89.1050, and 89.1055, which respectively relate to eligibility criteria; the admission, review, and dismissal (ARD) committee; and the content of the individualized education program (IEP).

Agency Response: The agency disagrees that references to the other rules are needed to understand when an ARD committee must meet to make a student's initial eligibility determination.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments stated that proposed §89.1011(d) runs contrary to IDEA because IDEA does not provide for LEAs to take summer breaks. The individual expressed concern because the proposed rule extends the 30-day period in which the ARD committee must make final decisions about a student's initial eligibility, IEP, and placement, as appropriate, when the 30th day falls during the summer recess. The commenter additionally contended that the proposed rule treats students at year-round schools differently from other students because students at year-round schools "will not be subjected to the same fragmented and lengthy evaluation process."

Agency Response: The agency disagrees. The requirements in §89.1011(d) are not new; the requirements are transferred from what was in §89.1050(d). IDEA regulation 34 CFR, §300.301(c)(1)(ii), provides that states may establish their own timelines for evaluations, and 34 CFR, §300.323(a), mandates that IEPs be in effect at the beginning of the school year. In addition, the rule contains an exception for students whose evaluations show that they require extended school year services that summer.

Comment: The Arc, DRTx, and TCDD recommended that proposed §89.1011(e) clarify that, in instances where an LEA received written consent for an evaluation at least 35 but less than 45 school days before the last instructional day of the school year, the ARD committee meeting to consider evaluations for students may be held beginning the first day of the new school year, but no later than the 15th school day of the new school year. The commenters also asked that the proposed rule address extended school year services for students whose evaluations fall within the above time frame but indicate a need for services during the summer.

Agency Response: The agency disagrees with the recommendation to add language stating that the ARD committee may meet on the first day of the new school year, but agrees with the recommendation to add language to address extended school year services. Section 89.1011(e) mirrors the language in TEC, §29.004(a-1), which states that the ARD committee must meet "no later than the 15th school day of the following year." The agency has determined that the language in the rule is sufficiently clear that the meeting may be held before the 15th school day. While TEC, §29.004, does not address situations where the initial evaluation recommends extended school year services, the agency agrees that a student whose full individual and initial evaluation indicates that the student will need extended school year services during that summer should be treated similarly to a student who falls under §89.1011(d). Therefore, the agency has added language to §89.1011(e) at adoption that reads, "If an initial evaluation completed not later than June 30 indicates that the student will need extended school year services during that summer, the ARD committee must meet as expeditiously as possible."

Comment: The Arc, DRTx, and TCDD commented that proposed §89.1011(f) does not clearly explain the circumstances under which certain timelines apply for students transferring between districts.

Agency Response: The agency disagrees. The language in §89.1011(f) is derived from 34 CFR, §300.301(d)(2), and is sufficiently clear.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments recommended that §89.1011(h) not define what is meant by the term "absent."

Agency Response: The agency disagrees and has determined that it is important to explain what constitutes an absence from school to avoid confusion for parents and school personnel and to establish a compliance standard for the agency.

§89.1015, Time Line for All Notices.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that, by repealing §89.1015, the rules no longer provide a definition for what constitutes reasonable time for providing written notice.

Agency Response: The agency disagrees. Adopted new §89.1050(d) addresses the timeline for providing parents with notices of ARD committee meetings under 34 CFR, §300.322, and adopted new §89.1050(g) addresses the timeline for providing parents with prior written notice under 34 CFR, §300.503.

§89.1040, Eligibility Criteria.

Comment: The Texas Council of Administrators of Special Education (TCASE) and a special education director supported the use of the term "intellectual disability" in proposed §89.1040.

Agency Response: The agency agrees.

Comment: TCASE and a special education director commented that they agree with the agency's fiscal impact comments regarding proposed §89.1040(c)(12).

Agency Response: The agency agrees.

Comment: A professor emerita recommended that proposed §89.1040(c)(12) require a learning media assessment upon a student's eligibility determination for special education services.

Agency Response: The agency clarifies that the learning media assessment is part of the eligibility evaluation process.

Comment: A professor emerita commented that, in proposed §89.1040(c)(12), the use of the phrase "visual loss" should be replaced with "visual impairment or low vision" as a more appropriate term.

Agency Response: The agency disagrees. In §89.1040(c)(12), "visual loss" refers to the degree of visual impairment.

Comment: A representative from Region 14 Education Service Center (ESC) recommended that the agency change language relating to suspected visual impairment in proposed §89.1040(c)(12) to language that refers to a documented vision loss before an orientation and mobility (O&M) evaluation is administered, in order to reduce the number of O&M evaluations that otherwise might be required.

Agency Response: The agency disagrees. The rule is consistent with the requirements of TEC, §30.002(c-1).

Comment: A representative from Region 14 ESC, a coordinator of a program for teachers of students with visual impairments, a superintendent, a professor emerita, and the Alliance of and for Visually Impaired Texans (AVIT) commented that, in proposed §89.1040(c)(12)(A)(ii)(I), the requirement that a functional vision evaluation determine the need for an O&M evaluation should be deleted because an O&M evaluation is now required for all students with visual impairments.

Agency Response: The agency agrees and has changed §89.1040(c)(12)(A)(ii)(I) at adoption to remove the clause "and an orientation and mobility evaluation."

Comment: A coordinator of a program for teachers of students with visual impairments, a superintendent, and AVIT recommended that the terms "professional certified in the education of students with visual impairments" and "certified orientation and mobility instructor" in proposed §89.1040(c)(12)(A)(ii)(I) be changed to reflect "teacher of students with visual impairments" and "mobility specialist" respectively.

Agency Response: The agency agrees and has changed §89.1040(c)(12)(A)(ii)(I) at adoption to read in part, "a functional vision evaluation by a certified teacher of students with visual impairments or a certified orientation and mobility specialist." This is consistent with §89.1131(b) and (e).

Comment: A professor emerita recommended that, for proposed §89.1040(c)(12)(A)(ii)(I), the words "or a certified orientation and mobility instructor" be omitted.

Agency Response: The agency disagrees. The language is appropriate as proposed because there are situations when it is appropriate for a certified orientation and mobility instructor to perform a functional vision evaluation. In response to other comments, however, §89.1040(c)(12)(A)(ii)(I) was modified at adoption to change "certified orientation and mobility instructor" to "certified orientation and mobility specialist."

Comment: A professor emerita recommended that proposed §89.1040(c)(12)(A)(ii)(I) require a clinical low vision evaluation.

Agency Response: The agency disagrees. For some students, a clinical low vision evaluation is not appropriate. However, a student's ARD committee could request a clinical low vision evaluation, and an evaluator conducting a functional vision evaluation should recommend a clinical low vision evaluation if appropriate for a student.

Comment: AVIT and a coordinator of a program for teachers of students with visual impairments commented that the term "braille" in proposed §89.1040(c)(12)(B) should not be capitalized.

Agency Response: The agency agrees and has made the recommended change to §89.1040(c)(12)(B) at adoption.

§89.1045, Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments stated that the repeal of current §89.1045(b) will diminish parents' rights to an ARD committee meeting and meaningful participation in a student's educational program. The commenter also stated that the proposed changes will reduce access to mediation.

Agency Response: The agency disagrees. The substance of §89.1045(b) may now be found in adopted new §89.1050(e). Additionally, a parent or LEA may request mediation through the agency at any time.

§89.1050, The Admission, Review, and Dismissal Committee.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that changing "full and individual initial evaluation" to "full individual and initial evaluation" in proposed §89.1050(a) inappropriately expands TEC, §29.004, to include both initial evaluations and reevaluations.

Agency Response: The agency disagrees. The placement of "and" was moved to conform to the terminology in TEC, §29.004, and §89.1011.

Comment: An advocate commented on proposed §89.1050(c)(1)(B), asking whether a student's general education teacher must be the general education representative at a student's ARD committee meeting or if someone else who knows a student could participate in that role instead.

Agency Response: The agency clarifies that IDEA regulation 34 CFR, §300.321, and §89.1050 require that a general education teacher "of the student" attend the ARD committee meeting if a student is or may be participating in the regular education environment.

Comment: TSTA recommended clarification of language in §89.1050(c)(1)(J), specifically recommending the participation of the bilingual/ESL teacher as the language proficiency assessment committee (LPAC) representative at ARD committee meetings.

Agency Response: The agency disagrees. The agency has determined that other members of the LPAC may be equally or better equipped to serve on the ARD committee and LEAs are in the best position to determine the most appropriate professional staff member from the LPAC to participate in ARD committee meetings.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments stated that the reference to 34 CFR, §300.321(a)(3), should not be removed from proposed §89.1050(c)(2) because doing so reduces clarity.

Agency Response: The agency disagrees. IDEA regulation 34 CFR, §300.321 (relating to IEP Team), is cited in §89.1050(a), and additional reference to the citation in §89.1050(c)(2) was unnecessary. The agency has determined that it is sufficiently clear from the language in rule that a special education teacher or special education provider is a required member of the ARD committee under both the federal and state requirements.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments and the Arc, DRTx, TCDD, Texas Classroom Teachers Association (TCTA), TCASE, a special education director, and TSTA recommended that the current §89.1050(c)(2), providing that the general education teacher serving on a student's ARD committee should be a general education teacher who implements a portion of a student's IEP, be retained and incorporated into the proposed rule.

Agency Response: The agency disagrees. IDEA regulation 34 CFR, §300.321(a)(2), and §89.1050(c)(1)(B) require that a general education teacher of the student attend the ARD committee meeting if the student is or may be participating in the regular education environment. The referenced language was removed to avoid redundancy.

Comment: The Arc, DRTx, and TCDD recommended that §89.1050(d) state that parents who receive a notice of the transfer of rights required by §89.1049 also be informed in writing of their right to participate in the adult student's ARD committee meeting at the invitation of a student or an LEA under §89.1050(c)(1)(F). The commenters also recommended including references to 34 CFR, §300.328, regarding alternative means of meeting participation, and to 34 CFR, §300.503, regarding prior written notice.

Agency Response: The agency agrees with the comment that it would be useful to clarify that school districts must allow parents who cannot attend the meeting to participate through other methods such as through telephone calls or video conferencing. Therefore, the agency has added language to §89.1050(d) at adoption that reads, "Additionally, a school district must allow parents who cannot attend an ARD committee meeting to participate in the meeting through other methods such as through telephone calls or video conferencing." The agency disagrees with the comment that language be added regarding participation by parents of adult students. The agency has determined that the rights of parents of adult students are sufficiently described in 34 CFR, §300.520 (relating to Transfer of Parental Rights at Age of Majority), and that it is not necessary to restate those requirements in this rule. Finally, the agency disagrees with the recommendation to add a reference to 34 CFR, §300.503, because it relates to prior written notice, which differs from notice of an ARD committee meeting.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that proposed §89.1050(d) does not contain the same requirements as current §89.1045 because the proposed language does not indicate that a parent may request an ARD committee meeting at any time and because the proposed language does not include the word "date."

Agency Response: The agency disagrees. The rule does not prevent a parent from requesting an ARD committee meeting at any time. Additionally, new §89.1050(d) provides greater clarity to parents and educators with regard to requesting and convening an ARD committee meeting and provides a greater degree of safeguards for students eligible for special education services.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented that the agency did not provide a basis for amendments to current §89.1050(d)-(g).

Agency Response: The agency disagrees. Many of the subsections were updated and moved to other parts of §89.1050 to provide clarification. Additionally, many of the revisions were made in response to TEC, §29.004.

Comment: A parent commented that proposed new §89.1050(e) will deny parents the right to be full participants of the ARD committee and will allow an LEA to circumvent due process requirements because an LEA may refuse to hold an ARD committee meeting.

Agency Response: The agency disagrees. Although an LEA may refuse to convene an ARD committee meeting, under the conditions addressed in new §89.1050(e), an LEA is required to provide the parent with a written notice within five school days of the meeting request explaining the reasons for its refusal.

Comment: An individual who provided a list of names of individuals and organizations that purportedly support her comments commented with regard to proposed §89.1050(e) that a parent should not be required to request an ARD committee meeting in writing.

Agency Response: The agency disagrees. The rule will provide greater clarity to parents and educators with regard to requesting and convening ARD committee meetings and a greater degree of safeguards for students eligible for special education services.