Comment. Concerning §89.1035, five individuals requested that language be added to the section clarifying/defining graduation for students with disabilities.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1035, two individuals requested that Texas issue certificates of completion/attendance instead of diplomas to certain students with disabilities.

Agency Response. The agency disagrees; however, for the purposes of student eligibility, the agency has clarified which graduation methods terminate a student's eligibility to receive services.

Comment. Concerning §89.1035, an individual stated that she believes that once a student receives a regular diploma, they should not be able to return and receive services.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1035, a local special education director proposed that §89.1035(a) define a regular high school diploma "as a diploma granted to each of those students who have satisfactorily completed the minimum academic credit requirements for graduation applicable to students in regular education including satisfactory performance on the exit level assessment skills."

Agency Response. The agency agrees and has made appropriate changes to address the public comments received by adding reference to §89.1070(b)(1)-(2).

Comment. Concerning §89.1040, a local special education director requested that the commissioner consider adding that a child with a disability must have an educational need which is not correctable without special education.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1040, a representative of an advocacy organization stated that they supported the alignment of the state eligibility definitions with the federal definitions.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, seventy-one individuals commented that eligibility determination for attention deficit disorder or attention deficit hyperactivity disorder (ADD/ADHD) should include medical professionals in addition to school evaluation professionals.

Agency Response. The agency agrees and has made appropriate changes to address the public comments received.

Comment. Concerning §89.1040, an individual stated that if the amended section is adopted, licensed specialists in school psychology (LSSP) and educational diagnosticians (ED) will need training from the education service centers.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, forty individuals stated that the rules should more clearly state which type of professionals should conduct which evaluations.

Agency Response. The agency agrees in part. However, the agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, thirty-nine individuals stated that the diagnosis of autism should be done by a LSSP with specific training in autism. In addition, the commenter offered that licensed speech language pathologist should also participate in making the autism diagnosis.

Agency Response. The agency agrees in part. However, the agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, fifty-two individuals stated that the diagnosis of emotional disturbance should be done by a LSSP and conform to Texas State Board of Examiners of Psychology (TSBEP) rules and best practices.

Agency Response. The agency agrees in part. However, the agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, an individual stated that the diagnosis of mental retardation should include a definition of the developmental nature of the eligibility criteria.

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, sixty individuals stated that the diagnosis of autism (AU), ED, and ADD/ADHD should be done by a LSSP and not by other professionals, such as educational diagnosticians.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, twelve individuals stated that trained and knowledgeable professionals, such as educational diagnosticians and LSSPs, should conduct the diagnosis of AU and ADD/ADHD.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, twelve individuals stated that the diagnosis of Traumatic Brain Injury should be done by a LSSP.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, an individual stated that the definition/eligibility criteria of learning disability should be updated to current best practice.

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, fourteen individuals stated that LSSPs need to participate in the evaluation process.

Agency Response. The agency wishes to allow local districts to make decisions based on qualifications and credentials of evaluation personnel conducting evaluations for the school district.

Comment. Concerning §89.1040, two individuals stated that they supported the rules as proposed.

Agency Response. The agency agrees in part. However, amendments were made to the proposed rules to reflect public comment where appropriate.

Comment. Concerning §89.1040, an individual requested that any clinician licensed by TSBEP be able to provide services in the school setting.

Agency Response. The agency disagrees because this would be a violation of state statute and TSBEP administrative rules.

Comment. Concerning §89.1040, an individual requested clarification of the term "belief" in subsection (c)(13)(B).

Agency Response. The agency has revised the rule to eliminate the wording in question.

Comment. Concerning §89.1040, an individual requested that the commissioner add developmental delay to the list of eligibility criteria.

Agency Response. The agency agrees in part; however, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency recognizes the need to convene a task force to study the current eligibility requirements for all eligibility areas, including developmental delay.

Comment. Concerning §89.1040, an individual requested state standards to prevent diagnosis by private psychologists as being the benchmarks instead of a multidisciplinary team decision.

Agency Response. The agency feels that the adopted rule adheres to federal law requirements that a knowledgeable group of professionals conduct the evaluation.

Comment. Concerning §89.1040, an individual identified two erroneous references in subsection (c)(2).

Agency Response. The agency agrees and the references have been corrected.

Comment. Concerning §89.1040, an individual and two representatives of an advocacy organization offered support for the proposed language relating to auditory impairment.

Agency Response. The agency agrees.

Comment. Concerning §89.1040, an individual requested that the changes made at subsection (c)(3), relating to auditory impairment, also be made in other sections of the subchapter to ensure that students with mild hearing impairments don't fall through the cracks.

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, an individual stated that a communication assessment must be completed; however, the individual could not find reference to the assessment in the rule.

Agency Response. The requirements for a communication evaluation are contained in federal regulations.

Comment. Concerning §89.1040, an individual recommended that the mental retardation definition should be changed to read, "of general ability and verbal ability or either performance or nonverbal ability." In addition, the individual recommended changing the eligibility standard from "two or more standard deviations" to "general intellectual functioning level is approximately 70-75 or below."

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, two individuals and five representatives from advocacy organizations requested that a reference to ADD/ADHD be added to the other health impairment (OHI) definition.

Agency Response. The agency agrees and adopted rules have been revised to reflect the suggested wording.

Comment. Concerning §89.1040, an individual recommended that "except as provided in subsection (b)(1) of this section" be deleted from subsection (c)(8).

Agency Response. The agency agrees and changes were made to reflect public comment.

Comment. Concerning §89.1040, a representative of a statewide Learning Disability organization supported rule language in subsection (c)(9)(B).

Agency Response. The agency agrees.

Comment. Concerning §89.1040, an individual recommended changing the category title from "speech impairment" to "speech/language impairment" as a helpful clarification for parents.

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. An individual recommended that a reference to the multidisciplinary team be added to subsection (c)(12). In addition, the individual recommended that the commissioner add language to subsection (c)(12)(A) to specify that the visual loss should be stated in exact measures of visual field and corrected visual acuity at a distance and at close range in each eye "in a report by a licensed ophthalmologist or optometrist."

Agency Response. The agency agrees in part and revisions to the proposed rule were made to incorporate language relating to the evaluation report.

Comment. Concerning §89.1040, nine individuals stated that they supported the expansion of the noncategorical early childhood (NCEC) age range, but requested clarification of the term "belief" in subsection (c)(13)(B).

Agency Response. The agency agrees in part, and wording in subsection (c)(13)(B) has been removed. However, NCEC age ranges have been restored to ages 3-5.

Comment. Concerning §89.1040, an individual stated that they supported rule language at subsection (c)(13)(B).

Agency Response. The agency has removed this language based on public comment.

Comment. Concerning §89.1040, twenty-five individuals requested that the commissioner limit NCEC to ages 3-5.

Agency Response. The agency agrees and has incorporated this revision into the adopted rule.

Comment. Concerning §89.1040, twenty-four individuals stated that the rule language in subsection (c)(13)(B) was too vague and should be eliminated.

Agency Response. The agency agrees. The agency has removed this language based on public comment.

Comment. Concerning §89.1040, nineteen individuals recommended that the commissioner change the word "belief" to "support."

Agency Response. The agency has removed this language based on public comment.

Comment: Concerning §89.1040, the CAC recommended that language conform to the federal language in relation to establishing eligibility for young children with disabilities and indicated concerns with use of the word "belief."

Agency Response. The agency agrees in part and has reworded the section. However, the agency will revert to a previous standard for determining students to be eligible under the NCEC category.

Comment. Concerning §89.1040, four individuals and three representatives from an advocacy organization support NCEC, but recommend that the commissioner use developmental delay.

Agency Response. The agency agrees in part. However, the purpose of these proposed rules was not to make significant changes in eligibility criteria. The agency does recognize the need to convene a task force to study the current eligibility requirements for all eligibility areas.

Comment. Concerning §89.1040, five individuals recommend that NCEC should not stand alone and continue to be optional.

Agency Response. The agency agrees in part and disagrees in part. Use of the category NCEC will continue to be optional; however, the agency believes inclusion of the NCEC category provides local flexibility for ARD committees in the assignment of disabling conditions to young children with disabilities.

Comment. Concerning §89.1040, an individual suggested that the commissioner eliminate NCEC.

Agency Response. The agency disagrees. The agency believes inclusion of the NCEC category provides local flexibility for ARD committees in the assignment of disabling conditions to young children with disabilities.

Comments. Concerning the repeal of §89.1045, an individual and the CAC requested that the rule language from the proposed repeal be reinstated.

Agency Response. The agency agrees. The current section title and rule language have been reinstated in the new §89.1045, with an updated federal citation.

Comment. Concerning new §89.1045, six individuals and seven representatives from advocacy organizations opposed the addition of "addressing and resolving the parent's concerns through an alternative process."

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, ten individuals requested that the commissioner establish a timeline definition for "reasonable time" when parents request an ARD committee meeting.

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, sixteen individuals recommended that the commissioner eliminate the proposed rule language and adopt the federal requirement.

Agency Response. The agency has addressed this concern by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning new §89.1045, ten individuals stated that they support the proposed rule.

Agency Response. The agency responded to public comment by replacing the proposed language with the current language that includes an updated federal citation.

Comment. Concerning §89.1047, a representative of the Texas State Foster Parent, Inc., requested that a timeline be placed on districts regarding when a district notifies the foster parent that the district is denying the foster parent the right to serve as the surrogate.

Agency Response. The agency does not believe that additional clarification is necessary since the adopted rule states that notice must be provided within seven calendar days to foster parents denied the opportunity to serve as a surrogate or parent.

Comment. Concerning §89.1047, three individuals and a local special education director requested clarification regarding when district employees may serve as foster parents.

Agency Response. The agency will provide additional clarification regarding surrogate parents through the education service centers.

Comment. Concerning §89.1047, an individual and three representatives of advocacy organizations suggested that the training required under this rule should be open to all parents in the district. In addition, they also recommended that the 90-day timeline for training be reduced to 30 days.

Agency Response. The agency agrees in part. Nothing in the rules will prevent a district from providing training to all parents. The agency disagrees with shortening the timeline for training.

Comment. Concerning §89.1047, the CAC recommended that the training be available to all parents. They commented that nothing in the rules will prevent a district from providing training to all parents.

Agency Response. The agency does not feel that this clarification is necessary.

Comments. Concerning §89.1047, an individual recommended that the 90-day time line for training be reduced to 60 days.

Agency Response. The agency disagrees with shortening the timeline for training.

Comment. Concerning §89.1047, two individuals commented that requirements from TEC, §29.015(b)(1)-(2), should be added to subsection (b).

Agency Response. The agency does not feel that this is a necessary clarification.

Comment. Concerning §89.1047, nine individuals request clarification regarding TEA's responsibility in developing training.

Agency Response. The agency does not feel that this is a necessary clarification. Content of the training is addressed in the rule.

Comment. Concerning §89.1047, six individuals questioned how the rule will be monitored and whether training in one district will be honored in another district.

Agency Response. The agency agrees and further guidance will be forthcoming through the education service centers.

Comment. Concerning §89.1047, eight individuals requested a grandfather clause exempting training participation for those who were trained prior to the effective date of the rule.

Agency Response. The agency disagrees. The rule and related statute specify particular training content and no assurance can be made that training provided prior to implementation of this rule covered all required content.