In a Nov. 17, 2016, letter to school districts, TEA addressed the issue of districts delaying or denying special education referrals in order to complete Response to Intervention strategies. TEA reiterated what the U.S. Department of Education’s Office of Special Education Programs (OSEP) warned in a January 2011 letter to states - that “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.”

In its November 2016 letter, TEA stated: “There have been reports that some school districts may be delaying or denying special education referrals in order to complete RTI strategies. As stated in the Parent’s Guide to the Admission, Review, and Dismissal Process, a child does not need to advance through each tier of the RTI system before a referral for special education is made. Furthermore, OSEP has advised that it would be inconsistent with the evaluation provisions of IDEA for a school district to reject a referral and delay an initial evaluation on the basis that a student has not participated in an RTI framework. Once it is apparent that general education interventions are not sufficient, school personnel should suspect that the child has a disability and should initiate a referral."

Many Texas teachers work in school districts implementing Response to Intervention for students who are struggling academically and behaviorally.

TEA’s letter additionally addresses the controversial monitoring indicator it uses to identify districts that are over-referring students for special education evaluation, which was brought to the attention of the public in a September 2016 article in the Houston Chronicle. The article detailed the TEA target of 8.5 percent for an indicator in its Performance-Based Monitoring Analysis System (PBMAS) 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. 

As a result of the article, several Texas legislators have vowed to file legislation prohibiting TEA from using such an indicator. In the meantime, Texas House Speaker Joe Straus issued a letter to TEA to “either make significant changes to the specific indicator in the monitoring system that is being cited as a reason schools are denying needed services to students, or to suspend use of this indicator." 

Additionally, the U.S. Department of Education became involved, directing TEA to eliminate the PBMAS special education enrollment target unless it could prove that it has not kept children with disabilities from getting services.

In response, TEA issued a press release, stating that “because of recent confusion regarding the PBMAS special education indicator, school districts and charters will be advised that it will not be used for current PBMAS staging purposes.”

This issue will likely be a topic of focus during the upcoming legislative session, as several legislators have already filed related bills, including one prohibiting TEA from evaluating the total number of enrolled students or the overall percentage of the total number of enrolled students of a school district or open-enrollment charter school who receive special education services.