The Texas Education Agency (TEA) adopts amendments to §§89.1005, 89.1035, 89.1040, 89.1050, 89.1070, 89.1121, and 89.1131, concerning special education services. Section 89.1040 and §89.1050 are adopted with changes to the proposed text as published in the June 4, 2021 issue of the Texas Register (46 TexReg 3490) and will be republished. Sections 89.1005, 89.1035, 89.1070, 89.1121, and 89.1131 are adopted without changes to the proposed text as published in the June 4, 2021 issue of the Texas Register (46 TexReg 3490) and will not be republished. The adopted amendments make updates related to eligibility determination for specific learning disabilities and provisions for students who are eligible for special education and related services who enroll in local educational agencies (LEAs) during the summer. The adopted amendments also make conforming edits related to funding for special education; update terminology to implement Senate Bill (SB) 281, 86th Texas Legislature, 2019; and update cross references.

REASONED JUSTIFICATION: The rules in Chapter 89, Subchapter AA, address provisions for special education services, including general provisions, clarification of federal regulations and state law, and dispute resolution. Legislation from the 86th Texas Legislature, 2019, requires that some of the rules in the subchapter be revised. Other rules require revision to provide clarification and to clearly express the state requirements aligned with federal regulations. Specifically, the adopted amendments update the rules as follows.

Division 1, General Provisions

Section 89.1005, Instructional Arrangements and Settings, is amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to Texas Government Code (TGC), §392.002, by SB 281, 86th Texas Legislature, 2019.

Division 2, Clarification of Provisions in Federal Regulations and State Law

Section 89.1035, Age Ranges for Student Eligibility, is amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281.

Section 89.1040, Eligibility Criteria, is amended to more clearly express the state requirements for identifying students with specific learning disabilities (SLD) that are aligned with federal requirements. The changes revise wording and clarify the psychological process practices used in identifying an SLD as allowed for under federal regulation. Section 89.1040 is also amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281. The following changes to §89.1040 were made at adoption.

In §89.1040(c)(3), a conforming edit was made to change the phrase "hearing impairment" to "students who are deaf or hard of hearing."

In response to public comment, §89.1040(c)(9)(C) was modified to remove the words "prior to and" to clarify that certain considerations must be made as part of the evaluation, not prior to the evaluation.

Section 89.1050, The Admission, Review, and Dismissal Committee, is amended to clarify how LEAs should provide services to students who are eligible for special education and related services when they enroll in an LEA during the summer. The changes specify that students with disabilities are to receive all IEP services starting the first day of school if they enrolled in an LEA during the summer. Additionally, references to "auditory impairment" are updated to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281. In §89.1050(c)(3)(B), a conforming edit was made at adoption to change the phrase "a student with a suspected or documented auditory impairment" to "a student who is suspected to be deaf or hard of hearing."

Section 89.1070, Graduation Requirements, is amended to update cross references in subsections (g) and (h).

Division 4, Special Education Funding

Section 89.1121, Distribution of State Funds, is amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281. The adopted amendment also makes conforming changes to the formula for funding special education to align with Texas Education Code (TEC), §48.102.

Division 5, Special Education and Related Service Personnel

Section 89.1131, Qualifications of Special Education, Related Service, and Paraprofessional Personnel, is amended to change references from "auditory impairment" to "deaf or hard of hearing" based on statutory changes made to TGC, §392.002, by SB 281.

SUMMARY OF COMMENTS AND AGENCY RESPONSES: The public comment period on the proposal began June 4, 2021, and ended July 5, 2021. Public hearings were held on June 15 and 17, 2021, via video conferencing. Following is a summary of the public comments received and corresponding responses.

Comment: An education professional commented that the agency should keep balance in mind when revising §89.1040. The individual acknowledged that language in the rule did need to be updated but also requested the consideration of additional perspectives. The individual asked for a balance in the process to consider not only the requests from parents but also the requests from educators to help meet the needs of students.

Response: The agency agrees that the rulemaking process benefits from input from all stakeholders.

Comment: A parent thanked the agency for adding the full definition of SLD in rule and commented that dyslexia is recognized in the Individuals with Disabilities Education Act (IDEA) as one of the specific learning disabilities. The parent stated that addressing this topic in rule will be helpful in providing clarity to school districts regarding SLD eligibility.

Response: The agency agrees.

Comment: An 11-year-old student with multiple disabilities commented that §89.1040 should be amended. The student described the pain and frustration of not being identified as a student with dyslexia by the school district and provided a personal account of learning to read and achieve great things despite obstacles. The student expressed the desire to see this for other students as well, noting that students with disabilities are "a galaxy of possibilities."

Response: The agency agrees that the rule change will be beneficial to all students. The agency is pleased to see youth involved in the process of rule revision and encourages students to advocate for themselves and others sharing similar experiences.

Comment: Disability Rights Texas (DRTx), the Texas Dyslexia Coalition, and a parent noted that, under TEC, disorders related to dyslexia are also recognized. DRTx requested inserting the phrase "and related disorders" after the term "dyslexia" in §89.1040(c)(9)(A).

Response: The agency disagrees. The language in §89.1040(c)(9)(A) is consistent with IDEA.

Comment: DRTx commented that the revision to §89.1040 incorporates the federal requirement of considerations to ensure that a student's SLD is not due to other variables such as certain disabilities. DRTx recommended further clarification to ensure that a student who has a co-occurring disability is not otherwise prevented from being identified as having an SLD and requested the insertion of a new clause under §89.1040(c)(9)(B) to read, "(v) subject to clause (iv), may have another disability."

Response: The agency disagrees that further clarification is required. The use of the word "primarily" in §89.1040(c)(9)(B)(iv) allows for consideration of other variables such as certain co-occurring disabilities. The agency provides guidance regarding conducting comprehensive evaluations on the TEA website at https://tea.texas.gov/sites/default/files/FINAL%20Child%20Find%20and%20Evaluation%20_11.5.19_accessible-locked_r.pdf.

Comment: The Texas Dyslexia Coalition expressed concern about the use of accommodations and multiple attempts at examinations for students to achieve passing grades in the evaluation process, which the Texas Dyslexia Coalition contends dilutes or impacts assessment results for discovering the presence of an SLD and determining eligibility for special education services. The Texas Dyslexia Coalition recommended inserting the words "initial attempts on TEKS-based" before the words "in-class tests" in §89.1040(c)(9)(B)(ii). Two parents made similar comments and requested that the agency add "initial" or "initial attempts on" before "in-class" in §89.1040(c)(9)(B)(ii). The commenters also expressed concerns about allowing students to retest or redo assignments for higher grades because doing so could skew the data used to determine if a student requires special education and related services.

Response: The agency disagrees that the recommended changes should be made because they would not provide additional clarity. Evaluations are comprehensive, and grades are only one data point used in the evaluation process. The commenters' suggestion to not allow a student to retest or redo assignments for higher grades would limit flexibility for LEAs to implement TEC, §28.0216, which allows retesting for a higher grade. Additionally, a student's grades are only one data point in the evaluation process, and a student's evaluation team and admission, review, and dismissal (ARD) committee must consider the conditions under which the student is achieving passing grades. Finally, passing grades alone would not make a student ineligible for special education and related services. An LEA's child find obligation extends to students who are advancing from grade to grade as noted in 34 Code of Federal Regulations (CFR), §300.111.

Comment: Regarding language in §89.1040(c)(9)(B)(ii), a parent commented that grades are subjective and are not a reliable indication of performance or an accurate measure of a student's acquisition of the areas in question for mathematics and reading when it comes to students who have an SLD.

Response: The agency disagrees. A student's grades are only one data point in the evaluation process, and a student's evaluation team and ARD committee must consider the conditions under which the student is achieving passing grades. Finally, passing grades alone would not make a student ineligible for special education and related services. An LEA's child find obligation extends to students who are advancing from grade to grade as noted in 34 CFR, §300.111.

Comment: A parent expressed concern that the wording of §89.1040(c)(9)(B)(ii) will be used to deny services to students with the SLD designation. The parent suggested either striking §89.1040(c)(9)(B)(ii) or adding language that clarifies that performance measures are not limited to the examples listed, allows national assessments to be used, and allows for examples of work products and data to be provided by parents. The parent also suggested adding language in §89.1040(c)(9)(C)(ii) to address the use of accommodated examinations during the evaluation for determining eligibility of a student for special education services. The parent provided a personal example of a child being denied special education services after being allowed multiple test retakes and commented that retesting and/or using accommodations can inflate grades and create data that does not accurately reflect the student's performance.

Response: The agency disagrees that the commenter's recommended changes should be made because they would not provide additional clarity. Evaluations are comprehensive, and grades are only one data point used in the evaluation process. The commenter's suggestion to not allow a student to retest or redo assignments for higher grades would limit flexibility for LEAs to implement TEC, §28.0216, which allows retesting for a higher grade. Additionally, a student's grades are only one data point in the evaluation process, and a student's evaluation team and ARD committee must consider the conditions under which the student is achieving passing grades. Finally, passing grades alone would not make a student ineligible for special education and related services. An LEA's child find obligation extends to students who are advancing from grade to grade as noted in 34 CFR, §300.111.

Comment: A parent questioned the appropriateness of instruction as it relates to the student's age and grade level when all students in self-contained classes are combined into one class for six grade levels with one teacher providing instruction to all grade levels. The parent commented that it is very infrequent that teachers give separate lessons to the students identified with an SLD when in a self-contained class and further added that this approach is not instruction that is appropriate for age and grade level.

Response: The agency disagrees that revision is required based on the comment. Instructional practices fall within the purview of LEAs. However, if a student is not receiving modified instruction as required by his or her individualized education program (IEP), the issue can be addressed with the campus or school district administration as well as through a special education complaint, mediation, or due process hearing.

Comment: A parent asked whether §89.1040(c)(9)(B)(iii) must include that a student's failure in response to intervention (RtI) or a student's exhibiting a pattern of strengths and weaknesses are absolutely required in order for a student to be found to have an SLD.

Response: The agency disagrees that additional language is necessary. Section 89.1040(c)(9)(B)(ii)(I) and (II) align with IDEA regarding requirements for determining eligibility.

Comment: A parent commented that §89.1040(c)(9)(B)(iv), regarding eligibility, fails to clearly define that a child who is deaf, blind, or DeafBlind can have dyslexia. The parent stated that the proposed amendment has left the qualification ambiguous by using the wording "primarily not caused by hearing or vision loss." The parent expressed concerned that students will not be identified has having dyslexia because of their existing hearing and vision loss.

Response: The agency disagrees. The language in §89.1040(c)(9)(B)(iv) aligns with IDEA. It is the role of the student's ARD committee to determine the student's special education eligibility and design an IEP that meets the student's needs. The process is collaborative. If there is disagreement within the ARD committee, there are avenues available to the participants to assist with reaching an agreement. Additionally, the use of the word "primarily" in the rule allows for consideration of other variables such as certain co-occurring disabilities. The agency provides guidance regarding conducting comprehensive evaluations on the TEA website at https://tea.texas.gov/sites/default/files/FINAL%20Child%20Find%20and%20Evaluation%20_11.5.19_accessible-locked_r.pdf.

Comment: DRTx noted that the revision of rule language regarding the criteria a student must meet in exhibiting intellectual development will be beneficial, including reducing the reliance on a model dependent on a severe discrepancy between intellectual ability and achievement for determining whether a student has an SLD.

Response: The agency agrees.

Comment: The Texas Dyslexia Coalition and three parents commented that the use of accommodations during the evaluation process when determining eligibility for special education services can impact the results of the assessment(s). The Texas Dyslexia Coalition recommended adding language to read, "If accommodations are utilized on any measure, the impact of the accommodations on the student's performance must be considered to ensure an accurate representation of the presence of a disability."

Response: The agency disagrees that revision is required based on the comment. 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 require that the evaluation team consider certain factors. Additionally, DRTx explained that since these considerations only occur upon the commencement of the evaluation, the mention of prior considerations is inappropriate and recommended striking "prior to and" at the beginning of §89.1040(c)(9)(C). The Texas Dyslexia Coalition and two parents also made the same comment.

Response: The agency agrees. At adoption, the phrase "prior to and " was removed from §89.1040(c)(9)(C).

Comment: DRTx recommended amending §89.1040(c)(9)(C)(ii), relating to the requirement that schools share with parents the data-based documentation of repeated assessments of their student, to specify that the documentation must be provided in a timely manner.

Response: The agency disagrees. The language in §89.1040(c)(9)(C)(ii) aligns with IDEA.

Comment: A parent requested that RtI be limited to six weeks.

Response: The agency disagrees because limiting interventions does not take into account the individual needs of students.

Comment: DRTx commented that amendment to §89.1040 incorporates the federal requirement of considerations to ensure that a student's underachievement is not due to the lack of appropriate instruction in reading or mathematics. DRTx suggested that additional clarification would ensure that repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, are not skewed by mitigating measures employed by the school in an attempt to boost the student's achievement and progress. DRTx also commented that this clarification inserted into the proposed rule amendment would be consistent with other federal disability law intended to protect individuals with disabilities from discrimination. DRTx recommended inserting a sentence at the end of §89.1040(c)(9)(C)(ii) to read, "Consideration of data-based documentation shall be made without regard to the ameliorative effects of mitigating measures such as reasonable accommodations or auxiliary aids or services."