As detailed in a monitoring report released by the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) last month, TEA’s use of the 8.5 percent special education representation indicator was determined to have contributed to a statewide pattern of practices that violated the Individuals with Disabilities Education Act (IDEA) child find requirements, resulted in a failure to make FAPE available to all eligible children with disabilities residing in the State, and demonstrated a failure on the part of TEA to fulfill its general supervisory and monitoring responsibilities under IDEA. TEA is now seeking “significant stakeholder engagement” regarding an initial draft of its plan to bring it back into compliance with IDEA. Detailed information about opportunities available for providing feedback (including a link to an online survey and calendar of upcoming stakeholder meetings) is available online here. This opportunity to provide input should not be ignored, as the plan has serious repercussions for public school districts.
Those wishing to review a full copy of OSEP’s 14 page monitoring report can access it here. However, the critical issue identified by OSEP can be summarized as a perceived widespread confusion on the part of local school districts with respect to the obligation to refer students for evaluation under IDEA as required by 34 CFR §300.111. Specifically, OSEP identified serious and systemic problems with how this “child find” mandate relates to Response to Intervention (“RtI”), Section 504, and the state’s dyslexia laws. The report emphasizes OSEP’s position that supports being provided in the general education environment through these and other programs cannot serve as a basis to delay or deny the referral of a struggling learner who is suspected of having a disability and needing special education and related services.
School districts should be aware that TEA’s initial proposal for remedying this issue includes the following provision:
TEA will require every district and charter school to identify all students who were in RtI for 6+ months, only had a Section 504 plan, or were exclusively in a dyslexia or dyslexia-related program. Schools must connect with the parents of these identified students not yet in special education and notify them of the corrective action plan and opportunity for a special education evaluation. The cost of identifying and conducting assessments for students suspect of having a disability has always been the responsibility of the district, which will continue.
While well intentioned, implementing this proposal could prove problematic for local school districts. First, the plan doesn’t address incidents in which a district might have legitimate reasons for refusing to conduct an evaluation. Second, it doesn’t consider the logistical issues that might arise from attempting to complete a potentially massive number of evaluations within the statutorily imposed timeframe. Finally, districts should recognize that the “costs of identifying and conducting assessments for students suspected of having a disability” includes costs associated with the procedural safeguards provided to the parents seeking those evaluations. These costs include the obligation to provide an Independent Educational Evaluation (IEE) at public cost and/or the right to request a due process hearing in response to disagreements regarding the evaluation.
Despite its fundamental importance, Child Find has proved to be a deceptively complicated concept. While undeniably challenging, the potential benefit of developing clear, concise, and unambiguous guidance in response to OSEP’s findings should not be overlooked. In the meantime, if you have questions about your district’s responsibilities under IDEA and/or participating in TEA’s efforts to address OSEP’s concerns, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.