Part 2.
TEXAS EDUCATION AGENCY
Chapter 89.
ADAPTATIONS FOR SPECIAL POPULATIONS
Subchapter AA. COMMISSIONER'S RULES CONCERNING SPECIAL EDUCATION SERVICES
2.
CLARIFICATION OF PROVISIONS IN FEDERAL REGULATIONS AND STATE LAW
The Texas Education Agency (TEA) adopts amendments to §§89.1053,
89.1055, 89.1076, and 89.1096, and the repeal of §89.1095, concerning
special education services for students with disabilities. The sections clarify
federal regulations and state statutes pertaining to delivering special education
services to students with disabilities. The amendments to §89.1053 and §89.1055
are adopted with changes to the proposed text as published in the February
20, 2004, issue of the
Texas Register
(29
TexReg 1564). The amendments to §89.1076 and §89.1096 and the repeal
of §89.1095 are adopted without changes to the proposed text as published
in the February 20, 2004, issue and will not be republished. The adopted changes
reflect revised rules and a repeal resulting from revisions to the Texas Education
Code (TEC) and expiration of a rule.
During the 78th Texas Legislative Session, 2003, several sections of law
impacting special education were amended. As a result of the changes to the
state law, 19 TAC Chapter 89, Subchapter AA, must be amended to incorporate
these changes to ensure school district compliance with new procedural requirements.
The adopted amendments address the legislative requirements by providing clarification
to 19 TAC §§89.1053, 89.1055 and 89.1076. Additionally, this adopted
rule action repeals 19 TAC §89.1095, which expired on June 30, 2001,
and amends 19 TAC §89.1096.
The adopted amendments and repeal related to 19 TAC Chapter 89, Subchapter
AA, include the following.
Section 89.1053, Procedures for Use of Restraint and Time-Out, is amended
to reflect changes made in TEC, §37.0021, related to the definitions
of restraint and time-out and the applicability of the law and rules to certain
individuals and entities. During the legislative session in 2003, TEC, §37.0021,
was amended to revise language related to the procedures for use of confinement,
restraint, seclusion, and time-out. The definitions for restraint and time-out
were revised, and language was added to indicate that the law, and any rules
or procedures adopted under the law, do not apply to peace officers while
performing law enforcement duties; juvenile probation, detention, or corrections
personnel; or an educational services provider with whom a student is placed
by a judicial authority, unless the services are provided in an educational
program of a school district. In response to public comment received subsequent
to filing the proposal, the rule is further amended to clarify issues surrounding
the revised definition of restraint and to clarify that, while specific references
to the Public Education Information Management System (PEIMS) will not be
included in rule language related to data reporting for restraint, the information
will be reported to the Texas Education Agency in an electronic format in
accordance with reporting standards specified by the Agency. The removal of
specific reference to PEIMS complies with agency practice to not include specific
names of agency organizational units or programs in rule text to avoid the
need to update rules solely because of future name changes.
Section 89.1055, Content of the Individualized Education Program (IEP),
is amended to reflect legislative intent related to transition and to add
language related to the new transition requirements as reflected in TEC, §29.011.
The amended law no longer requires a memorandum of understanding (MOU) on
transition planning for students with disabilities, but requires the ARD committee
to consider, and, if appropriate, address in the IEP nine issues related to
needed transition services for students with disabilities. In response to
public comment received subsequent to filing the proposal, the rule is further
amended to clarify age requirements related to certain transition planning
activities based on an additional review of information from the Office of
Special Education Programs (OSEP), U.S. Department of Education.
Section 89.1076, Interventions and Sanctions, is amended to reflect language
changes made in TEC, §39.131. The amended law revises language related
to the appointment of a conservator, as opposed to a master, to oversee the
operations of a district, and the adopted amendment to 19 TAC §89.1076
reflects this revised reference consistent with the statute. Language also
is adopted to reflect that, in building a new monitoring system for educational
programs, the focus has expanded beyond compliance-based issues to encompass
student performance, including program effectiveness.
Section 89.1095, Provision of Services for Students Placed by their Parents
in Private Schools, which expired on June 30, 2001, is repealed since it is
no longer in effect.
Section 89.1096, Provision of Services for Students Placed by their Parents
in Private Schools or Facilities, is amended to remove its expiration date
of June 30, 2004, and reference to 19 TAC §89.1095. These changes reflect
both the repeal of §89.1095 and the commissioner's intent to extend the
current timeline in regard to the availability of dual enrollment for eligible
students with disabilities ages 3 and 4. The extension of this requirement
will allow students with disabilities ages 3 and 4 to continue to be dually
enrolled in both public and private schools and to receive the services and
protections available under an individualized education plan. The adopted
amendment also clarifies that the protections afforded to 3- and 4-year-old
children under this section are intended to impact those students not yet
eligible to attend kindergarten in a public school district.
A two-day stakeholder meeting of parents, advocates, school districts,
education service centers, institutions of higher education, support personnel
organizations, teacher organizations, administrator organizations, and the
school board association was convened in December 2003 to discuss major issues
surrounding the development of rules related to restraint/time-out and transition.
Statewide public hearings were held on March 1, 2004, and March 8, 2004. In
addition, the public was given the opportunity to submit written/electronic
comments.
Advocates generally are supportive of rule changes that align commissioner's
rule with state law, continue the practice of dual enrollment for young students
with disabilities enrolled by their parents in private schools, and expand
the focus of agency monitoring systems to include student performance and
program effectiveness. However, advocates generally requested removal of rule
language related to the use of restraint to calm students and clarification
of rule language related to the collection of data on the use of restraint.
Advocates also requested changes to rule language related to the age at which
certain transition planning activities will begin. School personnel and organizations
that represent them generally support the revisions to rule language to reflect
statutory definition changes related to restraint and time-out but requested
certain changes to provide school personnel more latitude related to the use
of restraint. Certain school personnel and an educational organization also
requested additional guidance and/or information related to the transition
process for students with disabilities. Certain educational organizations
also requested that dual enrollment provisions for young students with disabilities
enrolled by their parents in private schools be allowed to expire. The commissioner's
rules attempt to balance these interests along with legislative intent and
mandate. Following is a summary of public comments received and corresponding
agency responses regarding the proposed amendments and repeal related to 19
TAC Chapter 89, Subchapter AA.
Comment. The executive director for the Texas Youth Commission (TYC) expressed
appreciation for the opportunity to review the rule proposals and indicated
that TYC staff feels the rules are fine as drafted.
Agency response. The agency, in general, agrees with this comment. However,
modifications have been made to the rules as a result of public comment.
Comment. A parent requested that training be provided to parents on their
participation in the admission, review, and dismissal (ARD) committee meeting
process. The parent stated that training would make parents better able to
advocate for the needs of their children in cases in which districts are not
providing full support to students and when lack of training and support to
teachers impacts student progress.
Agency response. The agency agrees that parents' knowledge and understanding
of the ARD process contributes to collaborative decision-making and positive
planning for students with disabilities. The agency is committed to continuing
efforts to provide parents with information and training related to the special
education process.
§89.1053. Procedures for Use of Restraint and Time-Out.
Comment. An assistant superintendent indicated no recommendations for change
to the rule section.
Agency response. The agency, in general, agrees with this comment. However,
modifications have been made to the rules as a result of other public comments.
Comment. A children's policy specialist at the University of Texas noted
that the changes in subsections (a), (b)(2), (b)(3)(B), (f), (f)(2), and (f)(3)
appear to accurately reflect the language in legislation and expressed appreciation
that the agency did not attempt to expand the language beyond legislative
intent. The specialist further noted that continuing questions related to
interpretation should be addressed through ongoing training.
Agency response. The agency, in general, agrees with this comment. However,
modifications have been made to the rules as a result of other public comments.
Comment. An elementary principal indicated agreement with changes made
to subsections (a), (b)(2), (b)(3)(B), (f), (f)(2), (f)(3), (g)(2), (k), and
(l).
Agency response. The agency, in general, agrees with this comment. However,
modifications have been made to the rules as a result of other public comments.
Comment. A representative of Advocacy, Inc., and a representative of The
ARC of Texas indicated that the changes to subsections (a)-(e) accurately
reflect changes made by the Texas Legislature.
Agency response. The agency agrees.
Comment. A representative of the Texas Classroom Teachers Association (TCTA)
commented, in reference to §89.1053(b)(1)(A), that the word "serious"
be deleted from the phrase "imminent, serious physical harm" so that educators
could use professional judgment and protect the student or other students
from any harm and suggested that the current rule language would require an
action to meet the level of an aggravated assault under the Penal Code before
restraint could be used.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, as was noted in the response to a previous
comment from the organization, the agency disagrees because it believes that
the threat of physical harm should be serious before the use of potentially
risky physical force is implemented in the form of restraint. Additionally,
school staff members are not held to the definition of serious bodily harm
as indicated in the Penal Code when making professional determinations under
the current rule language.
Comment. A special education director indicated concerns about the wording
order in subsection (b)(3)(B).
Agency response. The agency notes that the wording in this subsection is
drawn directly from Texas Education Code (TEC), §37.0021(b)(3)(B).
Comment. An executive director of support services for a school district
noted that the language in (b)(3)(B) provides good clarification.
Agency response. The agency notes that the wording in this subsection is
drawn directly from Texas Education Code (TEC), §37.0021(b)(3)(B).
Comment. A representative of the TCTA commented, in reference to (c), that
limiting restraint to emergencies is a laudable goal, but unrealistic and
undesirable because it takes the decision out of the hands of the ARD committee
and precludes a teacher from using any kind of physical force to remove a
disruptive child from the classroom if they refuse to leave on their own.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, as was noted in the response to a previous
comment from the organization, the agency disagrees because it believes it
is appropriate and in alignment with the intent of TEC, §37.0021, to
limit the use of restraint to emergency situations. The agency also believes
that the rule is consistent with professionally accepted practices and standards.
The agency further notes that the definition of restraint has been revised
to apply to significant restrictions to the free movement of all or a portion
of a student's body. Interventions which do not meet this definition are not
considered restraint under the TEC.
Comment. A representative of the TCTA requested, in reference to (c)(1),
that language be added to clarify that it is the educator, in his or her professional
judgment, who determines when use of reasonable force is necessary.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. Additionally, the agency believes that this clarification
is unnecessary and inappropriate since the subsection in question applies
not only to educators, but to school volunteers and independent contractors.
Comment. A representative of the TCTA requested, in reference to (c)(4),
that the term "basic human necessities" be defined.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, the agency believes that this phrase effectively
communicates rule intent and that further definition is unnecessary.
Comment. A representative of the TCTA requested, in reference to (d), that
the rule make clear that it is the district's responsibility to train school
employees, volunteers, and independent contractors.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, the agency disagrees that this additional
language is necessary in rule.
Comment. A representative of the TCTA requested, in reference to (e), that
the rule make clear who is responsible for documentation related to use of
restraint and that the rule should make clear that teachers are not required
to complete more paperwork than already is required under TEC, Chapter 37.
It was further requested that, if this was not done, the rule should include
a provision that requires automatic review of the support services available
to the teachers under 19 TAC §89.63(c)(1) each time they must file documentation
related to restraint.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, the agency feels that documentation of restraint
episodes is necessary and that the current rule language is appropriate. Issues
related to responsibility for documentation are subject to local decision
making.
Comment. A representative of the TCTA requested, in reference to subsection
(e)(5)(H), that the word "any" should be added before the phrases "efforts
made" and "alternatives" to reflect that these actions aren't required when
there isn't time to perform them.
Agency response. The comment addresses issues outside the scope of the
current rule proposal. However, the agency disagrees because it wishes to
encourage the consideration of efforts made to de-escalate students and alternatives
to the use of restraint prior to the implementation of restraint. However,
notification and documentation related to the use of restraint could note
and justify circumstances in which the nature of the emergency precluded these
efforts.
Comment. A special education director commented that the changes in subsection
(f) helped clarify that the use of adaptive equipment as okay.
Agency response. The agency appreciates the comment but believes the previous
rule language already clarified situations related to the appropriate use
of adaptive equipment.
Comment. A director of special education agreed with the clarification
in subsection (f) related to the use of restraint and time-out.
Agency response. The agency, in general, agrees with this comment. However,
modifications have been made to the rules as a result of public comment.
Comment. A representative of the Texas Association of School Boards (TASB)
asserted that subsection (f) is vague and that it is not clear whether the
items in paragraphs (1)-(4) are inclusive or exclusive of all the items that
are not considered restraint or significant restriction.
Agency response. The agency disagrees and believes that the language added
to subsection (f) provides guidance in alignment with the intent of TEC, §37.0021.
Comment. A representative of the Texas Council of Administrators of Special
Education (TCASE) commented that the inclusion of items in subsection (f)(1)-(4)
will be confusing if it is not made clear that the examples are illustrative
only and suggested that qualifiers such as "including, but not limited to,"
or "for example" be added to subsection (f).
Agency response. The agency disagrees and believes that the language added
to subsection (f) provides guidance in alignment with the intent of TEC, §37.0021,
and that additional qualifying phrases are unnecessary in the context of the
information included in this subsection.
Comment. A representative of the TASB commented that the changes in subsection
(f)(2) are appreciated as they provide much-needed latitude and common sense
to the rule.
Agency response. The agency, in general, agrees with this comment. However,
slight modifications have been made to subsection (f)(2) as a result of public
comment.
Comment. A representative of the TCTA commented that the changes in subsection
(f)(2) referencing redirection and guidance to a location are appreciated.
Agency response. The agency appreciates the comment.
Comment. A representative of Advocacy, Inc., and a representative of The
ARC of Texas commented that the language in subsection (f)(2) exceeds changes
made by the Legislature in that the addition of the word "calm" could inadvertently
increase the inappropriate use of physical restraint. The commenter asserted
that the word "comfort" is adequate to cover those situations in which an
adult may need to affectionately hold a distraught child and requested that
the word "calm" be removed.
Agency response. The agency agrees that the word "comfort" is adequate
and has removed the word "calm" from subsection (f)(2).
Comment. A parent and a representative of the Texas Council for Developmental
Disabilities (TCDD) commented that the word "calm" could be interpreted to
mean and/or result in physical restraint rather than comfort. The representative
of the TCDD specifically requested that the word "calm" be deleted from subsection
(f)(2).
Agency response. The agency agrees that the word "comfort" is adequate
and has removed the word "calm" from subsection (f)(2).
Comment. A director of special education commented that the new statements
in subsection (f)(2) were needed and that they make clear when restraint does
not apply.
Agency response. The agency, in general, agrees with this comment. However,
slight modifications have been made to subsection (f)(2) as a result of public
comment.
Comment. A counselor for a school district expressed appreciation for the
public opportunities provided for people to express their deeply held opinions
related to the use of restraint. The commenter noted that, comparatively speaking,
the initial physical and psychological trauma experienced by a child rarely
comes at the hands of a teacher or teacher assistant in a school setting,
and that, far more often, the outside world subjects children to such damaging
initial experiences. In these cases, the commenter noted, educators have the
task of trying to undo these effects. The commenter stated that oftentimes
the cornerstone for reconnecting with a child is the use of therapeutic physical
contact by trained, caring and loving adults. The commenter advocated for
continued interpretations of the word "significant" in the definition of restraint,
especially as it relates to subsection (f)(2) and for increased training requirements
for those who might be in a position to use physical contact to help a child.
Agency response. The agency agrees that limited physical contact to provide
comfort can be supportive of children and has specifically noted in rule that
this is not considered to be restraint. However, restraint is defined in TEC, §37.0021,
and physical contact which meets the statutory definition of restraint is
regulated through the procedures and rules reflected in this section. The
agency has made adjustments to the language proposed in subsection (f)(2)
in response to other commenters but continues to reference the ability to
provide comfort to students.
Comment. A representative of the TCDD suggested that the language in subsection
(f)(3) be revised to say "with the expectation that instruction will be based
on a functional behavioral assessment and the resulting behavior intervention
plan and will be reflected in the individualized education program (IEP) to
reduce and/or prevent the need for ongoing intervention."
Agency response. The agency, in general, disagrees with the comment and
doesn't believe the additional references to functional behavioral assessments
and behavior intervention plans are necessary to ensure that instructional
issues are addressed as appropriate. However, modifications to subsection
(f)(3) have been made as a result of public comment.
Comment. A representative of the TCTA requested that language be added
to subsection (f)(3) to allow the removal of a disruptive child, as follows,
"limited physical contact with a disruptive student to remove him/her from
the classroom. Such removal shall be performed by individuals who have been
trained and designated to do so." It was suggested that further language be
added to state, "Nothing in these rules shall abrogate or modify a school
employee's rights pursuant to Texas Penal Code section 9.62."
Agency response. The agency disagrees. Clarifications regarding appropriate
use of restraint already are included in subsection (f). Additionally, Penal
Code, §9.62, stands on its own merits, and it is not necessary to reference
it in these rules.
Comment. A representative of the TASB commented that the additional language
proposed for subsection (f)(3) is unclear and exceeds legislative intent and
authority and requested removal of the phrase. It was suggested that, if the
phrase were kept, the language should be revised to indicate a recommendation,
rather than a requirement, to reflect instruction in the IEP.
Agency response. The agency, in general, disagrees. The agency believes
the proposed language was clear, but has added additional statutory references
to align the rule requirements to the requirements contained in federal regulations.
Comment. A representative of the TCASE commented that subsection (f)(3)
is vague, ambiguous, and unnecessary and exceeds legislative intent and authority.
Agency response. The agency, in general, disagrees. The agency believes
the proposed language was clear, but has added additional statutory references
to align the rule requirements to the requirements contained in federal regulations
and to clarify that the foundation of the rule authority is found in federal
regulations.
Comment. A director of special education commented that the additions to
(f)(3) were excellent as it will force staff to address the problem and not
just apply physical contact and/or use adaptive equipment.
Agency response. The agency agrees.
Comment. A children's policy specialist at the University of Texas expressed
concern about removal of the reference to the Public Education Information
Management System (PEIMS) from proposed subsection (k), if the removal of
the reference means that information regarding the use of restraint will not
be readily available to the public, expressing a belief that data reporting
should be accurate and easily accessible.
Agency response. The agency agrees that data regarding the use of restraint
should be accurate and easily accessible. The removal of the specific reference
to PEIMS was proposed as part of a consolidated agency effort to remove from
Texas Administrative Code specific methodology references regarding how data
will be reported and collected. This effort is in alignment with an upcoming
broad-based review of the PEIMS system, and it will allow flexibility as the
agency examines, revises, and updates data reporting and collection systems
over the next several years. The removal of specific reference to PEIMS complies
with agency practice to not include specific names of agency organizational
units or programs in rule text to avoid the need to update rules solely because
of future name changes. However, in response to the expressed concerns, the
rule language has been revised to reflect the agency's commitment to collect
and make available data on the use of restraint in an electronic format in
accordance with reporting standards specified by the agency.
Comment. A representative of Advocacy, Inc., and a representative of The
ARC of Texas expressed concern about removal of the reference to PEIMS from
proposed subsection (k), stating that the intent of the PEIMS requirement
was to ensure that the data would be reported through the data system currently
used by the agency and requesting that the proposed rule be amended to read,
"...must be reported through the Agency's data management system."
Agency response. The agency agrees in part and disagrees in part. The agency
agrees that data regarding the use of restraint should be accurate and easily
accessible. The removal of the specific reference to PEIMS was proposed as
part of a consolidated agency effort to remove from Texas Administrative Code
specific methodology references regarding how data will be reported and collected.
This effort is in alignment with an upcoming broad-based review of the PEIMS
system, and it will allow flexibility as the agency examines, revises, and
updates data reporting and collection systems over the next several years.
The removal of specific reference to PEIMS complies with agency practice to
not include specific names of agency organizational units or programs in rule
text to avoid the need to update rules solely because of future name changes.
The rule language proposed in the comment was not adopted. However, in response
to the expressed concerns, the rule language has been revised to reflect the
agency's commitment to collect and make available data on the use of restraint
in an electronic format in accordance with reporting standards specified by
the agency.
Comment. A representative of the Mental Health Association in Texas expressed
concern about removal of the reference to PEIMS from proposed subsection (k)
without specifying a reporting system to be used. The commenter requested
that the original language be retained or that reference to "the TEA information
management system" be added. A concern was expressed about the authority of
the agency to collect the data in a standardized way under the proposed rule
language, noting that standardized data would be necessary for comparisons
to be made among districts.
Agency response. The agency agrees in part and disagrees in part. The agency
agrees that data regarding the use of restraint should be reported and collected
in a standardized format. The removal of the specific reference to PEIMS was
proposed as part of a consolidated agency effort to remove from Texas Administrative
Code specific methodology references regarding how data will be reported and
collected. This effort is in alignment with an upcoming broad-based review
of the PEIMS system, and it will allow flexibility as the agency examines,
revises, and updates data reporting and collection systems over the next several
years. The removal of specific reference to PEIMS complies with agency practice
to not include specific names of agency organizational units or programs in
rule text to avoid the need to update rules solely because of future name
changes. The rule language proposed in the comment was not adopted. However,
in response to the expressed concerns, the rule language has been revised
to reflect the agency's commitment to collect and make available data on the
use of restraint in an electronic format in accordance with reporting standards
specified by the agency.
Comment. An executive director of support services at a school district
expressed concern about removal of the reference to PEIMS from proposed subsection
(k), questioning if not PEIMS, then what system would be used.
Agency response. The agency agrees that data regarding the use of restraint
should be reported and collected in a standardized format. The removal of
the specific reference to PEIMS was proposed as part of a consolidated agency
effort to remove from Texas Administrative Code specific methodology references
regarding how data will be reported and collected. This effort is in alignment
with an upcoming broad-based review of the PEIMS system, and it will allow
flexibility as the agency examines, revises, and updates data reporting and
collection systems over the next several years. The removal of specific reference
to PEIMS complies with agency practice to not include specific names of agency
organizational units or programs in rule text to avoid the need to update
rules solely because of future name changes. However, in response to expressed
concerns, the rule language has been revised to reflect the agency's commitment
to collect and make available data on the use of restraint in an electronic
format in accordance with reporting standards specified by the agency.
Comment. A consultant at an education service center expressed concern
about removal of the reference to PEIMS from proposed subsection (k), noting
that people already had been trained on the use of PEIMS to report the data
and that districts are familiar with the system already in place. The consultant
expressed interest in seeing the documentation available from the PEIMS submissions.
Agency response. The agency agrees in part and disagrees in part. The agency
agrees that data regarding the use of restraint should be reported and collected
in a standardized format. However, the removal of the specific reference to
PEIMS was proposed as part of a consolidated agency effort to remove from
Texas Administrative Code specific methodology references regarding how data
will be reported and collected. This effort is in alignment with an upcoming
broad-based review of the PEIMS system, and it will allow flexibility as the
agency examines, revises, and updates data reporting and collection systems
over the next several years. The removal of specific reference to PEIMS complies
with agency practice to not include specific names of agency organizational
units or programs in rule text to avoid the need to update rules solely because
of future name changes. In response to the expressed concerns regarding access
to documentation, the rule language has been revised to reflect the agency's
commitment to collect and make available data on the use of restraint in an
electronic format in accordance with reporting standards specified by the
agency.
Comment. A parent expressed concern about removal of the reference to PEIMS
from proposed subsection (k), questioning if not PEIMS, then what system would
be used. The commenter noted that the rule should reference specifically the
system to be used to collect data.
Agency response. The agency agrees that data regarding the use of restraint
should be reported and collected in a standardized format. The removal of
the specific reference to PEIMS was proposed as part of a consolidated agency
effort to remove from Texas Administrative Code specific methodology references
regarding how data will be reported and collected. This effort is in alignment
with an upcoming broad-based review of the PEIMS system, and it will allow
flexibility as the agency examines, revises, and updates data reporting and
collection systems over the next several years. The removal of specific reference
to PEIMS complies with agency practice to not include specific names of agency
organizational units or programs in rule text to avoid the need to update
rules solely because of future name changes. However, in response to expressed
concerns, the rule language has been revised to reflect the agency's commitment
to collect and make available data on the use of restraint in an electronic
format in accordance with reporting standards specified by the agency. However,
specific reference to the PEIMS system has been removed from the adopted rules.
Comment. A representative of the TCDD expressed concern about removal of
the reference to PEIMS from proposed subsection (k), noting that the data
must be reported in a way that is easily available and accessible to the public.
The commenter stated that the proposed language did not make it clear that
the data would be as available as other data collected in the current system.
Agency response. The agency agrees that data related to the use of restraint
must be reported in a way that is easily available and accessible to the public.
The removal of the specific reference to PEIMS was proposed as part of a consolidated
agency effort to remove from Texas Administrative Code specific methodology
references regarding how data will be reported and collected. This effort
is in alignment with an upcoming broad-based review of the PEIMS system, and
it will allow flexibility as the agency examines, revises, and updates data
reporting and collection systems over the next several years. The removal
of specific reference to PEIMS complies with agency practice to not include
specific names of agency organizational units or programs in rule text to
avoid the need to update rules solely because of future name changes. However,
in response to expressed concerns, the rule language has been revised to reflect
the agency's commitment to collect and make available data on the use of restraint
in an electronic format in accordance with reporting standards specified by
the agency.
Comment. A director of special education indicated complete agreement with
the addition of subsection (l) related to the exemption of peace officers
performing law enforcement duties on campus.
Agency response. The language in subsection (l) reflects the statutory
requirements found in TEC, §37.0021(g).
Comment. An executive director of support services at a school district
indicated that the addition of subsection (l) was needed, stating that, as
a district, some resistance has been met from peace officers not wanting to
use other methods not part of law enforcement.
Agency response. The language in subsection (l) reflects the statutory
requirements found in TEC, §37.0021(g).
Comment. A parent advocate expressed her strong belief that the exemption
for peace officers in subsection (l) should be removed from the proposed rule,
noting her concern that peace officers are trained for the use of restraint
for criminal adults, and that additional training should be required to address
issues of children with developmental disabilities or other neurological disabilities
such as autism in hopes of avoiding circumstances such as the handcuffing
of students with autism. The parent advocate also requested that requirements
be established to investigate any district that has more than one restraint
in a calendar year of children under the age of seven.
Agency response. The language in subsection (l) reflects the statutory
requirements found in TEC, §37.0021(g), related to the exemption of peace
officers performing law enforcement duties from procedures adopted under this
rule. Therefore, the rule has been revised to reflect the limitations on agency
authority in this area. The agency appreciates the comment related to the
use of restraint data to promote investigations of districts and will use
the data, once available, to make decisions related to district interventions.
Comment. An attorney for Advocacy, Inc. expressed appreciation that the
agency has taken the opportunity to make changes to the rule that accurately
reflect the changes made by the legislature and only those changes consistent
with legislative action. The commenter expressed the belief that it is important
that the rules related to restraint and time-out continue to be strong so
that the use of restraint is restricted to emergency situations as opposed
to use as a routine behavior intervention.
Agency response. The agency agrees.
§89.1055. Content of the Individualized Education Program (IEP).
Comment. A consultant at an education service center noted that there has
been a history of confusion regarding the age at which certain transition
planning activities must begin and that the proposed rule language in subsection
(g) remains confusing and is not aligned with previous interpretations. The
commenter requested clarification and interpretation from the agency related
to the requirements as they relate to the rule and the Individuals with Disabilities
Education Act, Part B.
Agency response. The agency agrees that additional clarification and interpretation
is necessary and has revised the adopted rule language to clarify that "beginning
at age 14" means prior to a student's fourteenth birthday. This revision is
based on a review of additional information contained in documents disseminated
by the Office of Special Education Programs (OSEP), U.S. Department of Education.
Comment. A consultant at an education service center noted that Texas Education
Code (TEC), §29.011, charges the commissioner to adopt procedures for
compliance with federal requirements relating to transition services for students
enrolled in special education programs and requires that the procedures must
specify the manner in which a student's admission, review, and dismissal (ARD)
committee must consider, and, if appropriate, address the nine items listed
in the statute. The commenter asserted that the proposed rule does not provide
any guidance as to the manner in which an ARD committee must consider the
items, nor does it provide procedures, and requested that more specific guidance
be provided. The commenter also requested that there be some recognition that
some of the nine listed areas are duplicative of transition areas addressed
in federal statute. The commenter further stated that the proposed language
regarding the age at which certain transition planning activities must begin
would create misalignment with federal requirements.
Agency response. The agency agrees in part and disagrees in part. The agency
agrees that additional clarification and interpretation is necessary as it
relates to the age at which certain transition planning activities must begin
and has revised the adopted rule language to clarify that "beginning at age
14" means prior to a student's fourteenth birthday. This revision is based
on a review of additional information contained in documents disseminated
by the OSEP, U.S. Department of Education. However, the agency believes the
references in the rule to federal requirements recognize the relationship
of the adopted rules to federal requirements already in place, and the agency
has included an additional federal reference in the adopted rule based on
other public comment. The agency disagrees that additional guidance regarding
procedures and the manner by which ARD committees are to address transition
services is necessary in rule. The adopted rule indicates that the ARD committee
will consider the nine items and address appropriate items by including them
in the content of the individualized educational program (IEP) of the student.
Additional technical assistance, support, and training on the items and issues
will be developed and provided subsequent to the rule adoption.
Comment. A director of special education requested that the agency retain
the language in 34 Code of Federal Regulations (CFR) §300.29(a) instead
of listing the nine items in subsection (g) related to what ARD committees
must consider and retain the language of 34 CFR §300.347(b) instead of
requiring a full transition plan at age 14. In regard to subsection (g)(4),
the commenter also expressed concern that the ARD committee would be responsible
for ensuring the availability of and paying for postsecondary education options.
The commenter also stated that, in regard to subsection (g)(7), ARD committees
should not be forced to consider options which may not exist in the community.
Additionally, in regard to subsection (g)(9), the commenter asked what defines
appropriate circumstances.
Agency response. The agency, in general, disagrees. The adopted language
in subsection (g) reflects the statutory requirements found in TEC, §29.011.
Therefore, both the state law and federal requirements must be implemented
by districts. The statutory requirements, as well as the requirements adopted
in rule, state that the ARD committee, if appropriate, must consider the nine
items listed in law and rule and, if appropriate, integrate the items into
the IEP. The agency believes that this language provides the flexibility to
address individual student circumstances in developing the IEP and planning
for the transition of the student. The agency expects that ARD committees
will be able to make thoughtful, informed decisions related to the transition
of students with disabilities based on the use of student and community data
and in accordance with federal and state requirements.
Comment. A representative of Advocacy, Inc. and a representative of The
ARC of Texas noted that the items in subsection (g)(1)-(9) accurately reflect
changes made by the Legislature but expressed concerns that the introductory
language in subsection (g) was not clear in regard to when transition begins.
The commenters suggested that the language needed to be rewritten to be clear
that the planning process must occur in advance of the student's fourteenth
birthday. The representative of The ARC of Texas cited Appendix A to the federal
regulations in making this suggestion.
Agency response. The agency agrees and has revised the language in subsection
(g) to reflect these and other comments.
Comment. An executive director of support services for a district indicated
that the changes in subsection (g) make it very clear that the responsibility
for transition services belongs to districts.
Agency response. The agency agrees that the adopted rule, in addition to
other federal and state requirements, outlines the responsibility of districts
for transition planning and services. However, transition planning is enhanced
when all stakeholders in the process participate in coordinated planning and
implementation.
Comment. A special education director questioned why the parenthetical
statement was added to subsection (g) regarding "prior to date on which a
student turns 15 years of age," noting that all of age 14 is prior to the
student turning 15 years of age. The commenter also asked why items (1)-(9)
of subsection (g) were added when the CFR doesn't specifically require all
of these items and requested that only the language found in federal regulations
be used.
Agency response. The agency has added the language found in subsection
(g) based on the requirements of TEC, §29.011. The parenthetical language
in the introduction of subsection (g) has been revised to reflect federal
requirements. However, the agency believes the structure of the parenthetical
statement provides clarification of the requirements and has adopted the parenthetical
language, as revised to reflect 14 rather than 15 years of age, into rule.
Comment. A consultant at an education service center stated that, in addition
to references to 34 CFR §300.29 and §300.347, a reference to 34
CFR §300.344 should be included in the rule language in subsection (g).
Agency response. The agency agrees and has added the additional reference.
Comment. A consultant at an education service center commented that, in
the past, transition procedures were spelled out in a memorandum of understanding
(MOU), and that, with the elimination of the MOU, there has been no state
guidance regarding how transition will be addressed in the IEP and requested
a better delineation of procedures that say how and where in the IEP transition
planning will be addressed.
Agency response. The agency disagrees that additional procedural language
regarding transition planning is necessary in the adopted rules. The adopted
rule indicates that the ARD committee will consider the nine items and address
appropriate items by including them in the content of the IEP of the student.
Additional technical assistance, support, and training on the items and issues
related to transition planning will be developed and provided subsequent to
the rule adoption.
Comment. A parent noted that the transition process is frightening to all
parents and that the elimination of the MOU has a dramatic effect on everyone.
The parent expressed concerns about the availability of adequate resources
to parents and adequate funding for schools to provide the necessary support
to parents. The parent expressed a plea for the IEP to be a useful document
that will lead an adult student to be a productive member of the community.
Agency response. The agency agrees that the purpose of transition planning
is to promote meaningful, post- school results for students with disabilities
and further agrees that the IEP is intended to be a useful document in meeting
the needs of students and their families. The agency is committed to improving
opportunities for parents to participate in the educational process for their
children and is dedicated to technical support for parents and professionals
involved in the transition planning process.
Comment. An elementary principal noted that all of the items in subsection
(g) are good.
Agency response. The agency has adopted the items in rule based on the
requirements of TEC, §29.011, but has made certain changes based on other
rule comments. The agency agrees that meaningful implementation of the items
can promote positive, post-school results for students with disabilities.
Comment. An assistant superintendent had no recommendations for changes
to this subsection.
Agency response. The agency, in general, agrees but has made certain changes
based on other rule comments.
Comment. A parent commented that transition planning should begin at age
14 and service should begin by age 15 and requested that the rule language
in subsection (g) be reworded to ensure that services actually begin at age
14.
Agency response. The agency agrees that additional clarification and interpretation
is necessary as it relates to the age at which certain transition planning
activities must begin and has revised the adopted rule language to clarify
that "beginning at age 14" means prior to a student's fourteenth birthday.
This revision is based on a review of additional information contained in
documents disseminated by the OSEP, U.S. Department of Education. The age
requirements related to transition planning activities and transition services
are reflected in federal regulations and reinforced in the adopted rule.
Comment. A representative of the Texas Council for Developmental Disabilities
urged that the language in subsection (g)(9) be revised to direct the ARD
committee to make a referral as appropriate. The representative further stated
a concern related to the reference in subsection (g)(9) to governmental agencies,
noting that the language could be restrictive and questioning why other service
entities such as Goodwill or Ticket to Work would also not be appropriate
referral agencies.
Agency response. The agency agrees in part and disagrees in part. The language
in subsection (g)(9) is reflective of the language in TEC, §29.011(9).
Therefore, the language will not be revised in the adopted rule. However,
the requirements of the law and this subsection do not preclude appropriate
referrals to other entities by ARD committees or others.
Comment. The executive director of the Texas Council of Administrators
of Special Education noted that the proposed rule is essentially a restatement
of the legislative change eliminating the separate practice of conducting
a separate meeting for transition planning and developing a transition plan
separate from the IEP. The commenter expressed that it would be helpful if
the rule restated that compliance with the statute or rule does not require
a separate meeting or a separate plan. In addition, the commenter stated that
the development of "best practice" professional development materials would
be appreciated given the brevity of the rule to ensure general understanding
of the federal requirements noted in the introductory language of subsection
(g). The commenter further urged that the rule or professional development
materials note that the rule provisions are not meant to exceed any federal
requirement under the federal law.
Agency response. The agency agrees in part and disagrees in part. The agency
does not believe it is necessary to restate that the requirement to conduct
a separate transition meeting and complete a separate transition planning
document has been eliminated. Additionally, the agency disagrees with the
request to add a note to rule or professional development materials stating
that rule provisions are not meant to exceed federal requirements. While the
nine items listed in state statute and the adopted rule are complementary
to federal requirements and in alignment with the intent of federal regulations
related to transition planning, there is language included in the statute
and rule that is not directly noted in federal regulations. The agency agrees
that additional professional development materials will be beneficial, and
additional technical assistance, support, and training will be developed and
provided subsequent to the rule adoption.
§89.1076. Interventions and Sanctions.
Comment. An assistant superintendent had no recommendations for changes
to this subsection.
Agency response. The agency agrees and will adopt the section without further
modification.
Comment. A director of special education commented that the wording changes
are fine.
Agency response. The agency agrees and will adopt the section without further
modification.
Comment. A representative of Advocacy, Inc. and a representative of The
ARC of Texas supported the addition of the word "program" to rule language
and commended the agency for taking a step toward looking at the performance
of students with disabilities.
Agency response. The agency appreciates the comment and will adopt the
section without further modification.
Comment. A representative of the Texas Council for Developmental Disabilities
expressed appreciation of the agency's initiative in establishing new monitoring
systems to include program effectiveness, the foundation for student performance.
Agency response. The agency appreciates the comment and will adopt the
section without further modification.
§89.1095. Provision of Services for Students Placed by their Parents
in Private Schools.
Comment. An assistant superintendent noted the deletion of the entire section.
Agency response. This section, which expired on June 30, 2001, is repealed
since it is no longer in effect.
Comment. An elementary principal noted that the repeal of this section
is good.
Agency response. This section, which expired on June 30, 2001, is repealed
since it is no longer in effect.
Comment. A special education director indicated concern with the repeal
of this section based on the observation that students who leave public schools
to attend private schools and then return to public schools display signs
of being further behind than they were when they left public schools. The
commenter requested the return of dual enrollment on a case-by-case basis
based on discussion at the admission, review, and dismissal committee meeting.
Agency response. This comment goes beyond the scope of the proposed action
on this section. This rule section, which expired on June 30, 2001, is repealed
since it has not been in effect for several years. However, a district can
implement a local policy that reflects a higher standard than the requirements
currently in federal regulations and agency rule related to the provision
of services to students with disabilities enrolled by their parents in a private
school.
§89.1096. Provision of Services for Students Placed by their Parents
in Private Schools or Facilities.
Comment. An assistant superintendent made no recommendations for change
to this section.
Agency response. The agency appreciates the comment and has made no modifications
to the rule language as proposed.
Comment. An elementary principal noted that all changes to this section
are good.
Agency response. The agency appreciates the comment and has made no modifications
to the rule language as proposed.
Comment. A special education director expressed confusion over the language
contained in current subsection (d) related to the use of federal funds for
the provision of special transportation and questioned the clarity of the
current rule language.
Agency response. The comment goes beyond the scope of the current rule
proposal. However, additional clarification can be obtained as necessary through
a request for technical assistance from a regional education service center.
Comment. A consultant at an education service center requested that dual
enrollment be denied to students with disabilities ages 3 and 4 who have available
to them public school programs through early education or pre- kindergarten,
noting that public school staff have intensive training based on the requirements
of the No Child Left Behind Act.
Agency response. The agency disagrees. The adopted rules reflect the agency's
intent to extend the current timeline in regard to the availability of dual
enrollment for eligible students with disabilities ages 3 and 4. The agency
continues to work to improve the scope of educational options available through
public schools to students with disabilities ages 3 and 4. At this time, the
agency chooses to extend the dual enrollment requirement for these students
to allow additional options for parents of students with disabilities in this
age range.
Comment. A director of special education strongly agrees with the provision
that no eligible student placed by a parent in a private school has an individual
right to receive some or all of the special education that students who are
enrolled in a public school receive, except as provided by 34 Code of Federal
Regulations (CFR) §§300.450- 300.462.
Agency response. The agency, in general, agrees. However, this section
carves out a specific exception to the general federal standard and provides
additional options and opportunities for dual enrollment to students with
disabilities ages 3 and 4.
Comment. A special programs specialist and a teacher of students in a preschool
program for children with disabilities (PPCD) noted that extending dual enrollment
for 3- and 4-year-old students is problematic in that students may attend
only sporadically under dual enrollment, and it is difficult to create continuity
for the child and in the classroom. The commenters expressed the belief that
dual enrollment should expire for this population.
Agency response. The agency, in general, disagrees. While the agency acknowledges
that continuity of instruction supports learning for all students, the adopted
rules reflect the agency's intent to extend the current timeline in regard
to the availability of dual enrollment for eligible students with disabilities
ages 3 or 4. The agency continues to work to improve the scope of educational
options available through public schools to students with disabilities ages
3 and 4. At this time, the agency chooses to extend the dual enrollment provision
for these students to allow additional options for parents of students with
disabilities in this age range. However, under dual enrollment, admission,
review, and dismissal committees can make individualized decisions for students
that limit, to the extent possible, fragmentation to instructional programs.
Comment. A teacher of students in a PPCD indicated personal witness of
the harmful effects dual enrollment can cause for children 3 and 4 years of
age noting that the transition to school for children this age can be traumatic
and that needed structure for the students is lost when children attend public
school only one to three days each week.
Agency response. The agency, in general, disagrees. While the agency acknowledges
that appropriate instructional structure supports learning for all students,
the adopted rules reflect the agency's intent to extend the current timeline
in regard to the availability of dual enrollment for eligible students with
disabilities ages 3 or 4. The agency continues to work to improve the scope
of educational options available through public schools to students with disabilities
ages 3 and 4. At this time, the agency chooses to extend the dual enrollment
provision for these students to allow additional options for parents of students
with disabilities in this age range. However, under dual enrollment, admission,
review, and dismissal committees can make individualized decisions for students
that limit, to the extent possible, fragmentation to instructional programs.
Comment. A parent noted that she was against eliminating dual enrollment,
stating that, in her personal experience, the public school provided a classroom
for students with disabilities that allowed only limited interaction with
pre-kindergarten students without disabilities. She expressed further concerns
about the staff to student ratio at the public school, noting that, at the
private school in which her daughter is enrolled, the teacher student ratio
is lower and each classroom contains a significant number of students without
disabilities. She further noted that the private school program is a full-day
program, while the public school offered only a half-day program. The parent
requested the continuation of dual enrollment and expressed concerns about
the ability to fund private therapy should dual enrollment be eliminated.
Agency response. The agency agrees in part and disagrees in part. The adopted
rules reflect the agency's intent to extend the current timeline in regard
to the availability of dual enrollment for eligible students with disabilities
ages 3 or 4. The agency continues to work to improve the scope of educational
options available through public schools to students with disabilities ages
3 and 4. At this time, the agency chooses to extend the dual enrollment provision
for these students to allow additional options for parents of students with
disabilities in this age range. However, the rule proposal was not intended
to change policy related to dual enrollment for older students with disabilities,
and, at this time, the agency does not propose to extend dual enrollment opportunities
to students beyond this age range.
Comment. A director of special education noted that the proposed rule would
continue dual enrollment availability for 3 and 4 year olds and noted that
the addition of wording about kindergarten eligibility was good. The director
further requested that, in regard to subsection (c)(3), the words "special
education" be added before the words "personnel" and "instructional materials."
Agency response. The agency appreciates the comment related to the addition
of language related to kindergarten eligibility. However, the additional language
suggestions are beyond the scope of the current rule proposal and are not
considered necessary at this time.
Comment. Two teachers of students who are deaf and hard of hearing and
a speech therapist expressed strong support for serving students who are 3
or 4 years of age and who are enrolled in private schools or facilities by
their parents, noting that, without this provision, students who are deaf
or hard of hearing could lose access to very necessary speech and language
therapy, auditory training, and the stimulation of their hearing peers.
Agency response. The agency agrees and has made no modifications to the
rule language as proposed.
Comment. A representative of Advocacy, Inc., and a representative of The
ARC of Texas expressed their support for the removal of the expiration date
related to the provision of dual enrollment as an option for 3 and 4 year
olds and commended the agency for recognizing the continued need to address
least restrictive environment options for students with disabilities in this
age range. The commenters noted that parents still need the dual enrollment
option.
Agency response. The agency, in general, agrees. The adopted rules reflect
the agency's intent to extend the current timeline in regard to the availability
of dual enrollment for eligible students with disabilities ages 3 or 4. The
agency continues to work to improve the scope of educational options available
through public schools to students with disabilities ages 3 and 4. At this
time, the agency chooses to extend the dual enrollment provision for these
students to allow additional options for parents of students with disabilities
in this age range.
Comment. A representative of the Texas Council for Developmental Disabilities
commented in support of subsection (c), which allows 3 and 4 year old students
to receive special education services from a public school while also being
enrolled in private preschool programs and commended the agency for taking
this step to ensure that the least restrictive environment is available for
this age group.
Agency response. The agency agrees and has made no modifications to the
rule language as proposed.
Comment. A director of special education requested clarification related
to subsection (c), stating that the added language relating to kindergarten
eligibility is in conflict with current agency guidance materials produced
on the topic of students enrolled by their parents in private schools and
could cause confusion.
Agency response. Agency guidance materials will be revised to reflect official
changes to agency policy as adopted in rule.
Comment. The executive director of the Texas Council of Administrators
of Special Education (TCASE) and a representative of the Texas Association
of School Boards (TASB) expressed concern with the extension of the timeline
related to dual enrollment of students with disabilities ages 3 and 4. The
TCASE representative noted that the continuation of the availability of dual
enrollment exceeds the scope of federal law and does not serve the public
since scarce resources are drained from public education. The TASB representative
noted their support of the expiration date on this section and stated that
a decision to extend this section is inconsistent with federal clarifications.
In addition, both commenters stated that the scope of services to be provided
under the dual enrollment provision remains unclear and/or ambiguous. The
representatives of both organizations urged the agency to allow expiration
of the dual enrollment provision for young students, but, in the alternative,
suggested that language be added to subsection (c) to read, "or until the
student is eligible to attend a district's public school pre- kindergarten
or kindergarten program, whichever comes first..."
Agency response. The agency disagrees. The adopted rules reflect the agency's
intent to extend the current timeline in regard to the availability of dual
enrollment for eligible students with disabilities ages 3 or 4. The agency
continues to work to improve the scope of educational options available through
public schools to students with disabilities ages 3 and 4. At this time, the
agency chooses to extend the dual enrollment provision for these students
to allow additional options for parents of students with disabilities in this
age range.