Response: The agency disagrees that revision is required based on the comments. Evaluations are comprehensive and are not dependent upon one data source. Additionally, the use of accommodations in the classroom, district-wide assessments, and state assessments can be used to determine if a student requires specialized instruction under IDEA. If a student is successful with the use of accommodations, specialized instruction may not be necessary. Finally, IDEA already requires that assessments and other evaluation material used to assess a student be administered in accordance with any instructions provided by the producer of the assessments.

Comment: DRTx commented that the federal regulations governing the evaluation of students suspected of having an SLD permit consideration of the student's RtI. DRTx suggested clarification that the utilization of RtI or a multi-tiered system of support is not necessary before the evaluation and identification of a student with an SLD.

Response: The agency disagrees that the additional language is necessary because 19 TAC §89.1011(a) addresses the commenter's concern.

Comment: The Texas Dyslexia Coalition and individual members of the Texas Dyslexia Coalition communicated concern that the use of accommodations and multiple attempts for passing a test was impacting the results of assessment(s) used to determine the student's eligibility for special education services. The Texas Dyslexia Coalition recommended amending §89.1040(c)(9)(C)(ii) by inserting "and the student's progress monitoring data (current rate of progress and movement towards closing achievement gaps)" after the clause "reflecting formal evaluation of student progress during instruction;" inserting "initial attempts on TEKS-based" before "in-class;" and inserting "not to exceed six weeks" at the end of the clause. The Texas Dyslexia Coalition recommended inserting four additional clauses after §89.1040(c)(9)(C)(ii), which would include considering the impact using accommodations had on the student's performance when conducting an evaluation for special education services, eliminating the requirement for struggling students to participate in support services prior to being referred for special education services, adding the consideration of an evaluation for special education specifically for SLD for any student when the student does not perform adequately on multiple measures, and not allowing intervention strategies to delay or deny an evaluation for special education as well as requiring school personnel to initiate a referral to special education when a student is suspected of having a disability.

Response: The agency disagrees that revision is required based on the comments. Evaluations are comprehensive and are not dependent upon one data source. Additionally, the use of accommodations in the classroom, district-wide assessments, and state assessments can be used to determine if a student requires specialized instruction under IDEA. If a student is successful with the use of accommodations, specialized instruction may not be necessary. IDEA already requires that assessments and other evaluation material used to assess a student be administered in accordance with any instructions provided by the producer of the assessments and requires that students be evaluated in all areas of suspected disability. Finally, the agency disagrees that the additional language is necessary because 19 TAC §89.1011(a) addresses the commenter's concerns regarding the use of intervention strategies.

Comment: DRTx commented that §89.1040(c)(9)(D) incorporates the federal requirement of an observation of the student but that additional clarification would be beneficial to ensure that there is no delay in other aspects of the evaluation. DRTx recommended inserting an additional sentence at the end of the subparagraph to read, "Conducting an observation shall not delay or deny the evaluation described in subparagraph (B) and 34 CFR, §§300.307-300.311."

Response: The agency disagrees that additional clarification is needed. The ARD committee can use observation data from before the referral for an initial evaluation or may use data gathered through observations taking place during the evaluation process.

Comment: A parent commented that an evaluation could be delayed when it is summer or if the school building is closed and recommended adding to §89.1040(c)(9)(D) the option for a virtual observation to prevent a delay in evaluation.

Response: The agency disagrees that additional clarification is needed. The timeline for completing an initial evaluation is based on school days. Therefore, a student not being present for observation at school during a holiday or school closure would not delay the initial evaluation process.

Comment: A parent commented that §89.1040(c)(9)(E) should be modified to specify that any participant in the committee must have passed the HB 3 Reading Academies or minimally know the science of reading in order to be able to serve in the committee when the student in question has an SLD related to reading.

Response: The agency disagrees. The recommended change would place limitations on who could attend a student's ARD committee meeting, which would violate 34 CFR, §300.321, related to ARD committee membership.

Comment: An education service center staff member questioned whether §89.1050(j)(4), relating to a student who enrolls in a new district before the start of a new school year, conflicts with, and therefore replaces, 34 CFR, §300.323(f). The commenter also requested information regarding practical application of the amendment, specifically related to summer enrollment and how to serve a student who enters an LEA over the summer.

Response: The agency clarifies that the changes to §89.1050(j) are not in conflict with federal law, as the transfer requirements set out in 34 CFR, §300.323(f), including requirements related to evaluations, only apply to students who transfer into the LEA during the school year. The amendment addresses the requirement of 34 CFR, §300.323(a), mandating that at the beginning of the school year, the LEA must have an IEP in effect for each student with a disability within its jurisdiction. Thus, the LEA must ensure that the IEP of a student who enrolls in the LEA over the summer, in accordance with state enrollment requirements, is implemented in full on the first day of school. The IEP can be the IEP in place from the student's previous school district or it can be one that is developed by an ARD committee convened by the LEA prior to the first day of school. If the ARD committee determines an evaluation is necessary, the IEP can be implemented during the evaluation process.

STATUTORY AUTHORITY. The amendments are adopted under Texas Education Code (TEC), §28.025, which establishes requirements related to high school graduation and academic achievement records; TEC, §29.001, which establishes general statutory authority for the state to develop, implement, and monitor a statewide plan for special education; TEC, §29.003, which establishes state-specific criteria related to eligibility requirements for special education; TEC, §48.102, which establishes formulas for funding special education programs; Texas Government Code, §392.002, as amended by Senate Bill 281, 86th Texas Legislature, 2019, which establishes requirements related to the use of person first respectful language; 34 Code of Federal Regulations (CFR), §300.8, which establishes definitions of eligibilities under special education; 34 CFR, §300.100, which establishes general authority for the statewide plan for special education; 34 CFR, §300.307, which establishes requirements related to criteria that states must adopt for determining eligibility for specific learning disabilities; 34 CFR, §300.308, which establishes requirements related to who determines whether a student has a specific learning disability; 34 CFR, §300.309, which establishes requirements related to eligibility criteria for specific learning disabilities; 34 CFR, §300.310, which establishes requirements related to the use of observations in the evaluation process for determining eligibility for specific learning disabilities; 34 CFR, §300.311, which establishes requirements related to the documentation of the determination of eligibility for specific learning disabilities; and 34 CFR, §300.323, which establishes requirements related to the implementation of students' individualized education programs and requirements related to transfer students.

CROSS REFERENCE TO STATUTE. The amendments implement Texas Education Code, §§28.025, 29.001, 29.003, and 48.102; Texas Government Code, §392.002, as amended by Senate Bill 281, 86th Texas Legislature, 2019; and 34 Code of Federal Regulations, §§300.8, 300.100, 300.307-300.311, and 300.323.