Overview of Texas Special Education Laws
The big picture for special education laws in Texas is governed by three main sources of authority. Federal law, most notably the Individuals with Disabilities Education Act (IDEA), provides the basic framework for how states should implement special education. It establishes that students with disabilities have the right to a free and appropriate public education, which includes special education and related services in the least restrictive environment. It also sets out broad goals for the care of children with disabilities, such as improving educational results and helping them make meaningful transitions, and it prohibits discrimination on the basis of disabilities. It also determined that families should be involved in special education decision-making and services should be designed to meet the individual needs of students with disabilities.
State law narrows down the federal laws. Texas Education Code Chapter 29 defines special education in the state, narrows down the requirement for FAPE in Texas schools, and delves deeper into what students with disabilities are entitled to in Texas . For example, Texas law requires special education to begin by age three, as compared to starting at age five under federal law. It also explicitly lists students with autism as having the right to special education services. Additionally, the law incorporates the federal requirements for IEPs and related services, explains the procedures for developing IEPs, and lays out due process procedures for disputes.
Finally, even more specific guidance comes from the State Board of Education through the Commissioner of Education. For instance, Special Education Rules for the State of Texas (20 TAC 89) and Procedural Safeguards (20 TAC 89.1015) provide the specific procedures for special education requirements in Texas.
In addition to clarifying the federal and state requirements for special education, the State Board of Education, which operates through the Texas Education Agency (TEA), also works to develop and adopt policy guidelines, review and approve materials to be used in schools, and fund programs to promote education for children with disabilities.
Special Education Regulations Under IDEA
The Individuals with Disabilities Education Act (IDEA) is a federal law that governs the education of children with disabilities. The key idea behind IDEA is providing students a free and appropriate public education. This concept can come in different forms depending on the type of schooling, whether public, private or independent and the specific needs of the child in question. In Texas, there are two key areas in which state law may slightly differ from IDEA federal regulations. IDEA Part B governs students who are 3 to 21 years old and may be eligible for special education services. IDEA Part B defines special education and related services as: "The specially designed instruction and related services (including transportation and such developmental, correct, and other supportive services as are required to assist a child with a disability to benefit from special education) as specified in the child’s IEP." IDEA Part B guidelines embrace children ages 3 to 21 or until the student graduates or receives a certificate of attendance. Texas further defines the state special education laws in The Texas Administrative Code, Title 19, Part 2, Chapter 89. Texas Administrative Code (TAC) 89.1015(a) lists the 13 categories of students eligible to receive special education and related services based on their disability including: IDEA Part C refers to the regulations concerning infants and toddlers. This part serves children from birth up to three years of age with developmental delays and developmental conditions. This part of IDEA provides early intervention services to these students and must be delivered in natural settings such as homes, schools, and community locations. The Texas Early Childhood Intervention Service System is responsible for providing services for this category at the state level.
How to Qualify for Special Education
The process for determining eligibility for special education services for students with disabilities in Texas schools begins with the submission of a referral. Anyone concerned with the student’s ongoing academic, developmental, or behavior needs may start the referral process. It is not limited to professionals such as teachers or special education coordinators; instead, directors or guardians can also refer a student for special education services. Schools must assess a child for a disability when there’s a reasonable basis for suspecting one exists. Parental consent is required.
After a referral, the school conducts an individual assessment of the student to understand his or her unique needs. A review of the results helps with evaluation and development of the student’s Individual Education Program (IEP). The IEP must specify the child’s disability, how it affects the child’s educational performance, and whether the services required by the child’s disability are provided in the regular classroom or otherwise.
The school will base its decision of eligibility for special education upon the assessment results. The team looks at whether the child has a disability and whether that disability creates a need for special education services. According to federal regulations, a child qualifies as having a disability if he or she has one of the following conditions: autism, developmental delay, emotional disturbance, hearing impairment, multiple disabilities, orthopedic impairment, other health impairment (OHI), specific learning disability (SLD), speech or language impairment, traumatic brain injury, or visual impairment—including blindness.
In Texas, the OHI category extends to Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD). A child who has OHI qualifies for special education services when the disease, disorder, or condition results in behavioral characteristics such as hyperactivity, inattention, and impulsivity and the characteristics adversely affect academic performance.
If a child is eligible for special education under IDEA, the school will establish an IEP.
The ARD Process and Creating an IEP
When your child is found eligible for special education services by the district’s educational testing they must then convene an ARD committee consisting of at least the following members:
• the student’s parent(s);
• persons involved in making the special education placement decision, additional administrators, and related services providers;
• a person with knowledge of the child’s disability, provision of services to the child, curriculum, or special education process; and
• someone who can interpret the results of the evaluations.
The ARD process itself, beginning from the first meeting, is divided into five general phases:
- ARD committee members consider all relevant information, including the contents of the completed full and individual evaluation, the results of assessments and any parent concerns, as well as other information gathered by personnel of the school on behalf of the ARD committee.
- The ARD committee considers the beginnings of the new IEP, including goals and objectives that form a basis for discussing and determining specific recommendations for either the placement or provision of FAPE.
- The committee focuses on the six components of the IEP, including considerations of the student’s placement, and remaining cognizant of the need for a coordinate plan for transition, if appropriate.
- The recommendations are discussed by all members of the ARD committee until all members agree on the provisions and contents of the IEP.
- Parents should be sure to obtain a copy of the written document containing the child’s IEP and placement as soon as possible after the meeting.
Expected contents of the written IEP will generally include the following components:
- A statement of the child’s current level of academic achievement and functional performance;
- A statement of measurable annual goals, including how progress will be measured;
- A statement of the services to be provided by the school district;
- Any necessary supplementary aids and services;
- A description of the extent to which the child will participate with nondisabled children in the regular education environment;
- The extent to which the child will not participate in regular education classes and activities;
- A statement of the extent to which the goals and services will be coordinated with the services provided under state and federal laws; and
- A statement showing how the child’s parents will be informed of the child’s progress, including during the period when the public agency does not take action because of a conflict with an IEP or a change of placement.
Navigating Parents Rights and Resources
Like students, parents have legally protected rights. The Individuals with Disabilities Education Act (IDEA) affords parents the right to participate meaningfully in the planning and implementation of their child’s IEP, to review their child’s educational records , and to receive written notice any time school officials propose to change a student’s services. Parents also have the right to file complaints and due process petitions when they disagree with the school’s proposed IEP or other changes to their child’s education.
Parent training provides invaluable support to parents and guardians. The Texas Project First initiative provides resources and links to parent training opportunities at the state and local levels. Local School District Parent Handbook and Special Education Questions FAQs, published by Texas Council for Developmental Disabilities, are great resources as well. The Texas Parent to Parent website includes useful Parent to Parent Webinars.
Resolving Disputes with Due Process Review
Texas has established a dispute resolution system for special education matters that allows parents and school districts to resolve issues without going to a due process hearing. The three mechanisms currently in place in Texas to resolve special education disputes are:
Complaints to TEA TEA will issue a complaint investigation when it has evidence that the school district has violated federal and/or state special education law. The complaint investigation is the attempt to resolve a dispute between a parent/student and a school district. A complaint investigation can relate to any of the areas of federal and state special education law that can be provide as a form of relief. Unlike a request for compensatory education or tuition reimbursement, neither of which can be granted by TEA (and only by an IEE or due process ruling), fields of relief that may be granted include compensatory education, burden of proof and attorney’s fees. TEA complaints are not binding but are administratively final. If a parent disagrees with a TEA ruling, the parent has 30-days to request a Due Process hearing. The department’s ruling is not considered a final agency action for purposes of triggering a limitations period for a lawsuit under IDEA. See: Q.B. v. Tyler I.S.D., 734 F.3d 470 (5th Cir. 2013).
Mediation Mediations are available for all disputes under IDEA, unless the parties agree that the subject of mediation shall not include a certain matter related to the student’s identification, evaluation, educational placement, or provision of FAPE under IDEA. Mediation is voluntary and the mediator does not have authority to impose a solution. Unlike complaint investigations, mediations to resolve disputes are not assigned to TEA. Instead, the mediator is provided by the American Arbitration Association (AAA) and the mediator is charged with facilitating settlement discussions of the parties. Mediation is not covered under the IDEA attorney’s fees provision but other avenues of attorney’s fees recovery might apply to the work required to mediate a dispute.
Due Process Hearings If parties are unable to resolve a special education dispute through TEA complaint or mediation, as discussed above, the parties can file for a due process hearing. Texas due process hearings are administrative proceedings conducted by the State Office of Administrative Hearings (SOAH). Hearing examiners are Texas attorneys who are appointed by SOAH to hear special education due process cases. Deadlines for requesting due process hearings are very strict and if the deadline is missed, the hearing request will be dismissed. Whereas TEA doesn’t conduct the hearings, the TEA rules do allow TEA to request that a hearing examiner hear a case in order to provide consistency. Due process hearing requests are drafted in a manner similar to lawsuits, in that, parents are required to attach documents to their request that support and prove the requested violation(s). Parents are also charged with the burden of proof. Since most parents do not have the level of legal training necessary to draft a formal due process request or hearing, they should engage an advocate or attorney for help. Additionally, parents usually don’t understand the mechanics of a due process hearing and should not go it alone.
Texas Special Education Policy Updates
Texas recently enacted a number of changes to its special education laws. First, and most importantly, prior law provided that a student’s individualized education program must also consider the special factors of the student’s disability, such as compensatory strategies for writing, difficulty understanding spoken language or difficulty reading. Under new law, in addition to the current provisions, a student’s IEP must address the need for any additional testing accommodations and other accommodations, if needed, in order for the student "to participate in extracurricular and nonacademic activities." The new law goes into effect on September 1, 2019.
More specifically, House Bill 3 changed the current law by providing, without limitation, that:
In addition, the Texas Education Code has been amended to provide that "school districts and charter schools [that] promote the value of diversity and encourage interaction among students from different socioeconomic backgrounds and from different racial and ethnic backgrounds," as well as provide opportunities for discussion of the contributions, culture, and history of various racial and ethnic groups.
Also, in addition to the existing provisions addressing the reporting of child abuse, the Texas Education Code has been recently changed to include the requirement that school districts and teacher preparation programs provide training regarding behavioral, emotional, and psychological conditions that affect children. Specifically, the new law (effective September 1, 2019):
- requires the State Board for Educator Certification and the Commissioner of Education to ensure that no later than the 2022-2023 school year, each educator preparation program requires future educators to receive instruction to detect at child-abuse, human-trafficking, dating violence, and suicide;
- requires the State Board for Educator Certification to create on online course regarding mental health;
- requires local school boards to establish and maintain mental health training policies that include:
(a) suicide prevention policies,
(b) internet safety concerns,
(c) substance abuse awareness,
(d) mental health education, and
(e) youth mentoring programs; and
4) requires school district policies to include parental notification of certain behavior.
In addition, the new law provides that before a teacher may obtain continuing education credit, the teacher must complete training to address students identified as low performing.
The Texas Legislature is currently considering a number of other laws that would affect students with disabilities. For example, the Texas Senate recently passed Senate Bill 160 that will affect a student’s right to a free appropriate public education. In addition, the Texas House of Representatives has proposed House Bill 241 that would provide that the Texas Health and Human Services Commission collaborate with the TEA regarding mental health services in schools and make recommendations to the legislature on completing a mental health care needs assessment.
Currently, the only pending law (that seems to have a good chance of passing) that would significantly impact students with disabilities is the mental health care law. If it passes, it could have a drastic impact on the educational and practical rights of individuals with disabilities.
Stay tuned!
Helpful Resources for Teachers and Parents
Educators and families alike may find themselves in need of additional support resources, so here are a few links to some of those:
The Arc of Texas offers many resources through its website, including Local Chapter Contact information and the "I am Connected" Parent and Family Resource Guide. They also have a National and State referral service to assist families in finding the right resources for their particular needs.
The Center for Parent Information and Resources is a national center for disseminating information related to special education . They suggest resources from each state, monitor legislation and policy, and provide a bi-monthly newsletter for educators and families.
Disability Rights Texas serves as an advocate and resource center for people with disabilities in Texas. In addition to providing direct advocacy services to individuals with disabilities, they publish regular newsletters for educators and families to stay informed on issues, trends and legal updates.
The Office of Special Education Programs (OSEP) provides links to many different resources on special education laws and regulations. Each set of resources links to many articles that dive deeper into specific subjects.