The U.S. Department of Education has ordered the Texas Education Agency to fix ongoing issues related to special education. In response to USDE and a Jan. 11, 2018, order from Gov. Greg Abbott to respond within seven days, TEA on Jan. 18 released a preliminary corrective action plan to address the issues identified by USDE. TEA will seek public comment on the draft beginning Jan. 23.

Pattern of practices

In a 14-page letter following its investigation of TEA’s former use of a special education monitoring indicator to identify/require corrective action for districts’ special education referral rate exceeding 8.5 percent, the USDE’s Office of Special Education Programs concluded that TEA’s use of the indicator resulted in a decline in the state’s overall special education identification rate from 11.6 percent in 2004 to 8.6 percent in 2016. OSEP additionally concluded that the indicator’s use contributed to a statewide pattern of practices that show that TEA did not ensure that all school districts properly identified/evaluated all children with disabilities who were in need of special education and related services (child find), thus failing to make a free and appropriate public education available to all eligible children.

Use of RTI to delay/deny timely evaluations highlighted

Regarding the ”statewide pattern of practices” to which OSEP referred, OSEP found that, although state law in Texas now prohibits the use of a special education representation indicator, there are still practices in use contributing to the decline of the number of children with disabilities eligible for special education and related services under the Individuals with Disabilities Education Act, including:

  • Using response to intervention (RTI) strategies to delay or deny a timely evaluation for children suspected of having a disability and needing special education and related services;
  • increased use of Section 504 related aids and services as a means of providing struggling learners with additional services and supports, without referring children for an evaluation under the IDEA when those children were suspected of needing special education and related services under the IDEA; and
  • failure to refer students with dyslexia who are suspected of needing special education and related services for an evaluation under the IDEA.

Investigation and initial corrections

OSEP began its investigation as a result of a September 2016 series in the Houston Chronicle exposing TEA’s use of the monitoring indicator and the corresponding statewide decrease in the number of students identified for special education services. OSEP interviewed teachers, school staff and parents in 12 school districts, as well as TEA staff, as part of its investigation.

The visibility brought to the issue by the Chronicle's reporting also prompted legislators to make legislation ending the practice a high priority during the 2017 session. Accordingly, SB 160 passed, prohibiting the use of a performance indicator based on the number or percentage of children who receive special education services.

However, as OSEP noted, the continued use statewide of practices such as RTI to delay/deny timely evaluation of children suspected of having a disability demonstrated that TEA has failed to ensure that school districts properly implemented the IDEA child find requirements. 

RTI issues

The problematic use of RTI has long been an issue, as evidenced by a January 2011 letter from OSEP that warned states that an RTI process cannot be used to delay or deny an evaluation for eligibility under the federal 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.”

However, as indicated in the Houston Chronicle series, teachers reported that they had been instructed by their districts that RTI procedures must be fully implemented before referring students for special education services. OSEP’s subsequent investigation confirmed this report, specifically finding that, in one example, district employees had been instructed to continue RTI for years prior to referring a student suspected of having a disability for an initial special education evaluation. Another parent described a situation in which the family moved to Texas from another state and provided former evaluation data, yet the referral for an initial evaluation in Texas was delayed for three and a half years so that the child could receive 10 minutes of RTI intervention each day. The same parent noted that once the child was evaluated for special education and related services under the IDEA, the child was found to be eligible.

OSEP also found from the information it collected “a general understanding among teachers and parents in Texas that completing all tiers of RTI was required prior to a referral for special education, particularly for children with SLD (specific learning disability), but this practice cannot be used to delay or deny a timely evaluation of a child who is suspected of having a disability and in need of special education and related services.” 

Lack of clarity

Regarding teacher referrals, interviews that OSEP conducted with school and district staff revealed that although the staff referral will be considered, the school may deny the initial evaluation if the child has not completed all tiers of the RTI process, even if there is reason to suspect the child has a disability. OSEP also identified instances in which staff members described suspecting that a child may have a disability and not making a referral for an evaluation under the IDEA, or delaying the referral, because the child was already receiving services through RTI.

OSEP found that across the 12 school districts it visited, teachers could not always define what level of progress would be sufficient for a child to stop receiving interventions provided through an elevated tier of RTI. In different schools within the same districts and across different school districts, staff expressed a lack of clarity as to which children enter tiers two or three, how long children are served in each tier, and when children move from one tier to the next within the RTI framework. OSEP concluded that “while ISD’s certainly have flexibility in implementing RTI, the lack of clarity in LEA (school district)- and school-level implementation contributed to the delay or denial in the identification and evaluation of children suspected of having disabilities and needing special education and related services.”

However, as noted by TCTA in an earlier publication on the issue, part of the confusion/lack of clarity may stem from USDE regulations and OSEP’s own guidance. Specifically, in response to the reauthorization of the federal IDEA in 2004, the USDE adopted regulations requiring states to adopt criteria for determining whether a child has a specific learning disability (SLD) 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). Additionally, the January 2011 letter from OSEP 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.”  

Time to act

Nonetheless, as a result of its investigation, OSEP concluded that, “It was not clear that teachers in some ISDs where OSEP conducted interviews understood the extent to which additional supports or services may be available and provided to an individual child through the provision of special education and related services under the IDEA, rather than through supports provided in RTI, related aids and services under Section 504, or other forms of specialized services provided outside of the IDEA. Generally, interview data indicated that staff in many schools and ISDs appeared to view special education under the IDEA as a “last resort,” which should be avoided whenever possible to ensure that the child is instructed in a general education environment, even though children with disabilities can and do receive special education and related services in the general education environment.”

Accordingly, OSEP’s current instructions to TEA regarding RTI as well as the other practices it identified are to provide OSEP with “a plan and timeline by which TEA will provide guidance to ISD staff in the state," including all general and special education teachers, necessary to ensure that ISDs:

  • ensure that supports provided to struggling learners in the general education environment through RTI, Section 504, and the state’s dyslexia program are not used to delay or deny a child’s right to an initial evaluation for special education and related services under the IDEA; 
  • are provided information to share with the parents of children suspected of having a disability that describes the differences between RTI, the state dyslexia program, Section 504, and the IDEA, including how and when school staff and parents of children suspected of having a disability may request interventions and/or services under these programs; and 
  • disseminate such information to staff and the parents of children suspected of having a disability enrolled in the ISD’s schools.

Additionally, TEA is to provide OSEP with “a plan and timeline by which TEA will monitor ISDs’ implementation of the IDEA requirements described above when struggling learners suspected of having a disability and needing special education and related services under the IDEA are receiving services and supports through RTI, Section 504, and the state’s dyslexia program.”

Finally, regarding the impact of the 8.5 percent performance monitoring indicator, OSEP found that some school districts took actions specifically designed to decrease the identification of children for special education and related services under the IDEA when TEA indicated that the district’s rate exceeded 8.5 percent. For example, one superintendent reported in an interview with OSEP that he takes steps to reduce special education identification, explaining that he uses data to monitor the number of children in special education and then he “leans on the administrators” if the numbers are too high because the school board “leans on him.”

By taking such actions, staff in certain districts indicated that there was an expectation that the district would receive less monitoring, at least on this particular indicator, from TEA.

OSEP’s instructions to TEA are to provide OSEP with a plan and timeline by which TEA will ensure that each ISD will:

  • identify, locate, and evaluate children enrolled in the district who should have been referred for an initial evaluation under the IDEA, and
  • require IEP teams to consider, on an individual basis, whether additional services are needed for children previously suspected of having a disability who should have been referred for an initial evaluation and were later found eligible for special education and related services under the IDEA, taking into consideration supports and services previously provided to the child.

TEA response 

TEA's initial corrective action plan addresses all of the issues identified in the federal monitoring report, including the proper identification of special education students and assuring access to appropriate services at the local level.

Commissioner of Education Mike Morath said TEA will engage in a significant outreach effort over the next two months to hear from special education students, families, educators, advocacy groups, district and school officials, and all others seeking to provide input on the plan before a final version is submitted to the U.S. Department of Education.

“This corrective action plan provides the state of Texas the chance to make meaningful, lasting change in how we educate and support children with special needs,” Morath said in a statement. “We are approaching this planning process with the seriousness that it requires and hope to solicit the kind of collective feedback, support and collaboration that our students deserve as we work to earn back the trust parents place in us for their children. My top priority has and continues to be to improve outcomes for all students in Texas.” 

According to the draft plan:

  • TEA would create a suite of resources intended to be shared with the parents of children suspected of having a disability to help fully inform them of their rights to a free and appropriate public education, and accompany those resources with a large outreach effort.
  • TEA would roll out a large scale statewide special education professional development system, including multiple opportunities for follow-up support for all educators (general education, special education, and others).
  • For students who are found to have needed services and did not receive them, the school system is responsible for providing compensatory services. TEA would identify funds to support effective service delivery.
  • TEA would further strengthen its staffing and resources devoted to special education, allowing for greater oversight as well as additional on-site support to local school districts.

TEA will accept public comments on the draft plan from Jan. 23 to Feb. 18 through a survey on its special education webpage. A revised draft plan will be available around March 1, with additional public comment accepted through March 31, TEA said in a statement. The final version of the corrective action plan will be submitted to USDE around April 18.