A recent article published by the Houston Chronicle detailed a TEA monitoring requirement that is alleged to have effectively lowered the number of students referred for special education across the state. The article examined the TEA target of 8.5 percent for an indicator in its Performance-Based Monitoring Analysis System related to the percentage of students identified to receive special education services. When districts report a higher percentage of students referred for special education, TEA may conduct an audit. Not coincidentally, the percentage of special education students receiving services across Texas was 8.5 percent in 2015. 

Of major interest in the article is a reference to the use of a strategy called Response to Intervention (RTI) to delay referral of a student for special education services. The article points to a January 2011 letter from the U.S. Department of Education’s Office of Special Education Programs that warned states that an RTI process cannot be used to delay or deny an evaluation for eligibility under the federal Individuals with Disabilities Education Act (IDEA). According to the letter, “It would be inconsistent with the evaluation provisions at 34 CFR §§300.301 through 300.111 for [a school district] to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework.”

Many Texas teachers work in school districts implementing Response to Intervention for students who are struggling academically and behaviorally. In fact, in response to the reauthorization of the federal IDEA in 2004, the U.S. Department of Education adopted regulations requiring states to adopt criteria for determining whether a child has a specific learning disability that in part, must permit the use of a process based on the child’s response to scientific, research-based intervention (for more information, click here). The USDE Office of Special Education Programs letter states that, “Although the regulations specifically address using the process based on the child’s response to scientific, research-based interventions (i.e., RTI) for determining if a child has an SLD, information obtained through RTI strategies may also be used as a component of evaluations for children suspected of having other disabilities, if appropriate.”  TEA’s Guidance on RTI provides that “Local educational agencies [school districts] may choose to use an RTI process as one of a variety of measures of evaluating learning disability eligibility.”

Although TEA’s Response to Intervention webpage provides that “states and [school districts] have an obligation and requirement under federal law to see that evaluations of children suspected of having a disability are not delayed or denied because of schools using an RTI strategy,” teachers have reported, as detailed in the Houston Chronicle article, that they have been instructed by their districts that RTI procedures must be fully implemented before referring students for special education services.

Accordingly, TCTA members who are experiencing this situation and who would like assistance can call the TCTA Legal Department at 888-879-8282.