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To Whom It May Concern:
The Texas Classroom Teachers Association, representing nearly 50,000 classroom teachers and instructional personnel in Texas, has the following comments regarding proposed amendments to 19 TAC Chapter 89, Adaptations for Special Populations, Subchapter AA, Commissioner's Rules Concerning Special Education Services.
Regarding proposed Section §89.1040 (c)(9), we believe the proposed language exceeds federal law and thus should be changed. Specifically, Section 89.1040(c)(9) states that lack of appropriate instruction in math must be examined in determining whether a child is a child with a learning disability. Federal law only requires that the “appropriateness” of instruction be considered with regard to reading, and not math. Section 614(b)(5) states that
(5) SPECIAL RULE FOR ELIGIBILITY DETERMINATION.—In making a determination of eligibility under paragraph (4)(A), a child shall not be determined to be a child with a disability if the determinant factor for such determination is--
(A) lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 1208(3) of the Elementary and Secondary Education Act of 1965);
(B) lack of instruction in math; or
(C) limited English proficiency.
Given the lack of definition and guidance regarding how to determine a lack of appropriate instruction in math, we do not think it is wise to go further than federal law by requiring educators to determine whether a student had a lack of appropriate instruction in math. It is clear from the way the federal law is written that Congress intentionally did not include the appropriateness of math instruction as a factor in making this eligibility determination, but rather, intended for the consideration to be whether there was NO instruction in math at all. Additionally, we note that federal law states that lack of appropriate instruction in reading or lack of instruction in math must be the determinant factor in determining eligibility as a child with a disability before such child is precluded from being labeled as such. However, the proposed rule does not require that a lack of appropriate instruction in reading or lack of instruction in math be the determinant factor. Finally, the rule limits the review of the lack of appropriate instruction in reading or lack of instruction in math to general education settings only. We do not understand why the review would be limited in this way. It seems more appropriate to examine these issues regardless of the setting and therefore, we would suggest that this limitation be eliminated. Based on these concerns, we would suggest that the proposed rule be changed as follows:
(9) Learning disability.
(A) Prior to and as part of the evaluation described in subparagraph (B) of this paragraph and 34 CFR, §§300.307-300.311, and in order to ensure that underachievement in a child suspected of having a specific learning disability is not predominantly due to lack of appropriate instruction in reading or a lack of instruction in mathematics, the following must be considered:
(i) data that demonstrates the child was provided appropriate instruction in reading (as described in 20 USC, §6368(3)), and/or a lack of instruction in mathematics within general education settings delivered by qualified personnel; and
(ii) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal evaluation of student progress during instruction. Intervals are considered reasonable if consistent with the assessment requirements of a student's specific instructional program.
Regarding proposed section 89.1050(c)(2), we appreciate this provision in that it clarifies which regular education teacher(s) must be members of the ARD committee. We strongly believe this language is needed given that we have heard from several of our regular education members that they are being asked to serve on ARD committees when they have absolutely no knowledge of the child or very little likelihood that they will be teaching the child. Additionally, this provision closely mirrors language in the applicable federal comments accompanying the federal regulations which states that "The regular education teacher who serves as a member of a child's IEP Team should be a teacher who is, or may be, responsible for implementing a portion of the IEP so that the teacher can participate in discussions about how best to instruct the child."
Regarding proposed section 89.1050(c)(5), we notice that the rules refer to attendance of an ARD committee member. Federal law and regulations provide that when an IEP Team member’s area is not being modified or discussed, that the member is not required to attend the ARD committee if the parent and LEA agree in writing that the member’s attendance is not necessary. While we appreciate Congress’s stated intent to lessen the number of meetings required for educators, particularly teachers who lose instructional time because of such meetings, we are concerned that there are no safeguards in place to protect against teachers being “excused from attending” involuntarily. There is no doubt that the teacher of the student is one of the most knowledgeable persons about the educational needs of the student and he/she plays a very important role as a member of the IEP Team. We understand that there may certainly be instances when the teacher does not need to attend the ARD Committee meeting, but we are also concerned about the use of this new provision to exclude teachers who may have a differing opinion from the administration regarding the education of the student.
We often have members contact us in frustration because they want to be an advocate for the student but are not officially recognized as such in law, except in the context of the ARD Committee meeting. One way to ensure that this kind of situation is not occurring is to require written notice to the “excused” member that their attendance at the meeting has determined not to be necessary. Additionally, this kind of requirement is consistent with federal regulation Section 300.321(e)(2) which allows members to be excused from the IEP Team meeting even if the member’s area of curriculum or related services is being modified or discussed in the meeting if the parent and district agree and the excused member submits in writing, input into the development of the IEP prior to the meeting they will not be attending. Notice to “excused” members of the ARD committee could be accomplished via providing the excused member with the written agreement that the parents and LEA already must execute that the member’s attendance is not necessary, thus not necessitating additional paperwork.
Accordingly, we would suggest that Section 89.1050(c) be changed as follows: (5) An ARD committee member, including a member described in subsection (c)(4) of this section, is not required to attend an ARD committee meeting if the conditions of either 34 CFR, §300.321(e)(1), regarding attendance, or 34 CFR, §300.321(e)(2), regarding excusal, have been met. Notice of a determination that his/her attendance is not necessary must be provided to the regular education teacher(s) and the special education teachers(s) who are members of the ARD committee.
Additionally, we would suggest that further language be added to the rule that mirrors language that was included in the federal comments accompanying the applicable federal regulations as follows: "An LEA may not routinely or unilaterally excuse IEP Team members from attending IEP Team meetings as parent agreement or consent is required in each instance. An LEA that routinely excuses IEP Team members from attending IEP Team meetings would not be in compliance with the requirements of the Act, and, therefore, would be subject to the State’s monitoring and enforcement provisions."
Thank you for this opportunity for input.
Holly Eaton
Director of Professional Development and Advocacy
Texas Classroom Teachers Association
