Texas Education Agency’s Proposed Corrective Action Plan

Texas Education Agency’s Proposed Corrective Action Plan

The Office of Special Education Program (“OSEP”) conducted a monitoring visit of Texas schools during the week of February 27, 2017, due to reports of declining identification rates in Texas under the Individuals with Disabilities Act (“IDEA”). As a result of the monitoring visit, OSEP found that the Texas Education Agency (“TEA”) was noncompliant with IDEA in three different areas:

1. TEA failed to ensure that all children with disabilities residing in the State who are in need of special education and related services were identified, located, and evaluated, regardless of the severity of their disability, as required by IDEA and its accompanying regulations;
2. TEA failed to ensure that a free appropriate public education (“FAPE”) was made available to all children with disabilities residing in Texas that fell within the State’s mandatory age range, as required by IDEA and its accompanying regulations; and
3. TEA failed to fulfill its general supervisory and monitoring responsibilities as required by IDEA and its accompanying regulations.

 As a result of OSEP’s findings, TEA was required to draft a corrective action plan to address the areas of non-compliance. TEA has now issued the “Initial Draft” of the proposed corrective action plan. TEA proposed the following corrective actions:

1. TEA will significantly increase its monitoring capacity by adding personnel, restructuring the department responsible for monitoring, adjusting PEIMS data collection, publicly publishing monitoring reports, providing a parent survey process, and providing monitoring teams that have: a) required unrestricted access to the school and staff; b) the flexibility to make unannounced and scheduled visits to schools and districts; and c) the ability to review all necessary records and conduct confidential interviews with stakeholders.
2. TEA will create an outreach program to identify, locate, and evaluate children that have not been identified, expand a call center, require every district and charter school to identify all students who were in RtI, only had a Section 504 plan, or were exclusively in a dyslexia program for 6 or more months, will update TEA’s guidance for clarity, and will create a fund to assist school districts in providing appropriate compensatory services.
3. TEA will release an RFP specific to the creation of resources that are to be shared with parents of children that specified the differences between RtI, Section 504, and IDEA, will revise the Dyslexia Handbook, enhance and expand the grant program funding for a statewide call center, create and execute statewide professional development, and include one staff member dedicated to dyslexia guidance and one staff member for Section 504 guidance.

Based on the proposed, initial draft, we recommend that each school district begin reviewing the following items:

1. A list of students that have received RtI services, only had a Section 504 plan, or were exclusively in a dyslexia/dyslexia-related program for more than 6 months to determine whether a special education evaluation is appropriate;
2. Audit files to ensure compliance with IDEA; and
3. Review whether compensatory education will be required for students that have not been identified.

Now that school districts received a preview of possible actions to come, we recommend taking the actions listed above to make the process easier if and when TEA’s final corrective action plan is implemented. Further, the proposed recommendations above are general good practices to ensure legal compliance with IDEA, in the event an allegation of noncompliance with IDEA arises.

Additionally, if you would like to provide input related to the initial draft, please email TexasSPED@tea.texas.gov. The ability to submit public comments for this draft ends at midnight on February 20, and will re-open again in March for comments about the next draft.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.