Individuals with Disabilities Education Act (IDEA)
Being a parent can be difficult, but sometimes a parent is the child’s best educational advocate. Making the determination to place a child in a special educational environment or program is “one of the most important, if not the most important, decision that will ever be made in that person’s life” – Senator Robert Stafford, co-sponsor of the Education of All Handicapped Children Act.
Today’s special education programs differ dramatically from those in the past, but the goals remain the same. Rather than separation or isolation, much of the students’ time will be spent in a general classroom and only an hour or two a day in a separate environment. The overarching reminder to both Parents, Teachers, and Administrators is that Special Education is a service, not a place.
What is the Individuals with Disabilities Education Act (IDEA)?
The IDEA is one of several Federal Laws that governs special education programs in the United States. IDEA provides and promotes funding for state and local educational agencies to meet their obligations for students impacted with learning, cognitive, or physical disabilities. One of the principle goals in IDEA is for students, regardless of their disabilities, to receive a free appropriate education. The other objective of IDEA is for parents to be provided a distinctive voice in their child’s education. Inclusive of these two objectives, the IDEA provides certain safeguards to parents and students to ensure parents’ input into the educational process.
Does IDEA require school districts to evaluate students?
Yes, IDEA requires that state or local education agencies evaluate students who may be protected under IDEA. Either a parent or the appropriate educational agency can request the evaluation. If the initial evaluation is requested by the school, the school district, or the local or state educational agency, one of the parents must consent.
What notice is required regarding the initial evaluation?
Within 15 days of the beginning of the Initial Evaluation the school district must provide written notice to a parent of its proposal to conduct the evaluation or the school district’s written notice of refusal to conduct the initial evaluation. This notice is not optional; regardless of the decision of the School District, the notice must be provided within 15 days.
The written Notice must provide a minimum of the following:
A description of the action proposed or refused by the agency;
An explanation of why the agency proposes or refuses to take the action;
A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
A statement that the parents of a child with a disability have protection under the procedural safeguards of IDEA and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;
Sources for parents to contact to obtain assistance in understanding the relevant of IDEA;
A description of other options that the IEP Team considered and the reasons why those options were rejected; and
A description of other factors that are relevant to the agency’s proposal or refusal.
The evaluation is to determine what needs the child has during the educational process and how to accommodate those needs. During the evaluation, the child will be tested with an array of measures to ensure that no sole factor will be determinative of that students’ cognitive, behavioral, physical, or developmental abilities. Parents should ask questions during and prior to this process; the process is there to provide solutions and determine how best to help their child.
After the notice is provided to the parents, the school must generally conduct the initial evaluation and provide a written report within 45 school days from when the school receives the parent’s consent. If the parental consent is received close to the end of the school year, within 35 to 45 days of the last day of school, the school has until June 30 of that year to evaluate and prepare the written report. A similar extension applies if the student is absent from school for 3 or more days during the period of time the school has to conduct the initial evaluation. In such a case, the school has the same amount of extra days as the student was absent.
Not later than 30 days after the evaluation, the parents and the school must meet and determine what, if any, plans to assist the student are necessary; this is called the Individualized Education Plan (“IEP”). The school is required to make every reasonable assurance that one or both parents can attend this meeting. Special accommodations for this meeting can include telephone conferences, video conferencing, or arranging the meeting at a time and place to work around the parents’ work schedule. The school district’s accommodations should also include translations, if one or more of the parents do not speak English natively.
What is a general timeline for the special education process?
What is an Individualized Education Plan (IEP)?
This is the plan for how to ensure that the child receives the benefits of a public education. The IEP should coordinate the child’s needs, including where he or she is academically, developmentally, and functionally, how the child’s current needs and strengths can be appropriately addressed, what activities will or will not be appropriate or not for the child, what goals the parents and school should set for the child, how to evaluate those goals on a periodic, including yearly basis, what modifications and personnel the school will provide to ensure the child accomplishes those goals, and the estimated beginning date for implementing those goals. This plan should be accomplished through the least restrictive environment possible. That is, the child should remain with his peers, and utilize the same institutions, classrooms, and facilities to ensure the Child receives an appropriate education.
The Texas Education Agency provides a sample IEP form to assist in the preparation and guidance through the meeting. In addition, PRNTexas.org has a preparation sheet to ensure that parents have questions ready, and can be their child’s best advocate.
Is there any review of the IEP after it is in place?
Yes, each year the school must review the IEP with the parent to determine if the goals are being met, and if any revision is necessary. Though preferable, the parents and school can amend the IEP without a meeting, however, the revisions must be in writing to be effectively implemented and enforced.
Does Texas provide additional provisions for students other than those set forth in IDEA?
In addition to the mandates provided by the IDEA, Texas provides additional assurances that students with disabilities, both mainstream and homebound students, will be provided an educational plan that provides for their needs.
Under Texas law, what additional provisions are provided for mainstream students?
Mainstream children with disabilities are classified as those who can remain in the regular classrooms while receiving sufficient educational assistance. Texas requires qualified special educational personnel take part in the implementation of the IEP through direct or indirect support services to the student or the student’s teacher to enable the student’s success in the classroom. Examples of this direct or indirect support services are co-teaching, providing teachers’ aides, positive classroom behavioral interventions, consultations with the students or reducing the ratio of students to teachers.
Under Texas law, what additional provisions are provided for homebound students?
Homebound students are classified as those students who are unable to attend a regular classroom for a period of at least four weeks. The need for homebound support must be documented by a physician. The services that can be provided to homebound students include, but are not limited to, hospital classes substituting for regular classroom education; speech therapy; residential care; and state supported living centers.
What are the graduation requirements for students receiving special education?
Texas law requires students receiving special education in 9th-12th grade to demonstrate mastery of certain state standards, completion of the foundational high school program, and satisfactory performance in the required state assessments unless the admission, review, and dismissal committee determines that satisfactory performance is not necessary.
In the alternative, if the foundation high school program contains any modified coursework, then the student must complete his or her IEP and demonstrate one of the following: the student has received full time employment based upon the student’s abilities and local employment opportunities, in addition to mastering self-help skills; the student has demonstrated a mastery of specific employability and self-help skills that do not require ongoing support of the school district; the student has access to services that are not within the responsibility of the public education or has employment or educational options for which the student has been prepared for; or the student has aged out of the program (reached 21).
 TAC §89.1070 and TAC §74.12 (Describing the Foundation High School Program).
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….
An individual with a disability is defined as: “any person who: (i) has a mental or physical impairment that substantially limits one or more major life activity; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.”
Determining whether a student has a mental or physical impairment that substantially limits a major life activity must be made on a case by case basis. Additionally, when making the determination of whether a person meets the definition of a disability, the definition must be understood to provide broad coverage of individuals.
Under Section 504, an impairment may include any disability, long-term illness, or various disorder that “substantially” reduces or lessens a student’s ability to access learning in the educational setting due to a learning, behavior, or health-related condition. This definition can include physiological disorders or conditions, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes mental or psychological disorders. Due to the difficulty of ensuring completeness, the definition does not include all specific diseases and conditions that may be mental or physical impairments.
What are some examples of major life activities?
Major life activities include major life functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Further, “major bodily functions” can also be considered major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This is not an exhaustive list and each child’s situation must be assessed on a case by case basis.
Are students using illegal drugs or alcohol covered under Section 504?
Students that are currently using illegal drugs are not covered under Section 504. Students that are currently using alcohol are eligible. However, Section 504 allows schools to take disciplinary action against students using alcohol or drugs to the same extent as students without disabilities.
What does substantially limits mean?
The federal regulations do not define substantially limits, but a letter from the Office for Civil Rights (OCR) states, “this is a determination to be made by each local school district and depends on the nature and severity of the person’s disabling condition.” Guidance from the Americans with Disabilities Amendment Act states that Section 504 standards must conform to the ADA and is “intended to afford a broad scope of protection to eligible persons.” Thus, in considering substantial limitations, students must be measured against non-disabled peers that are the same age in the general population and without the benefit of medication or other mitigating measures such as adaptive neurological modifications, assistive technology or accommodations.
The Section 504 regulatory provision at 34 C.F.R.104.35 (c) requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.
Are temporary impairments considered disabilities under Section 504?
A temporary impairment is not a disability for the purposes of Section 504 unless its severity is one that results in a substantial limitation of one or more major life activities for an extended time period. This determination must be resolved on a case-by-case basis and must take into consideration both the duration of the impairment or its expected duration and the extent to which it limits the major life activity of the individual.
What procedural safeguards must school districts implement?
School districts must establish and implement procedural safeguards that include (1) notice, (2) an opportunity for parents to review relevant records, (3) an impartial hearing with the opportunity for participation by the child’s parents/guardian, where the parents/guardian may be represented by counsel, and (4) a review procedure. Each school district often has specific special education parent rights under Section 504.
How are students referred under Section 504?
Although anyone can refer a child for evaluation under Section 504, the Office for Civil Rights requires that a school refer as student for evaluation if the student, because of disability, needs or is believed to need services under Section 504. A school district is not required to refer or evaluate a child under Section 504 solely at a parent’s demand. If the school district declines a referral request from a parent, the school must provide the parent with notice of the parent’s procedural rights under Section 504.
Is a parent’s consent required for a Section 504 placement?
A parent/guardian must give written consent for an initial Section 504 placement.
What does a referral under Section 504 mean?
Once a referral is made under Section 504 and consent is received from the parent/guardian, school districts must conduct an evaluation in a timely manner of any student who needs or is believed to need special education or related services due to a disability.
What happens if the school makes a determination that student needs accommodations?
If the school determines that there is a reason to believe that a student needs accommodation to the general educational environment in order to allow him or her to have equally effective participation in the school program, the school must notify the parent of the child and promptly evaluate the child. This process occurs through the Early Intervening Team (EIT) process. Each school should have this team in place.
Who makes up the Early Intervening Team (EIT)?
The EIT generally consists of a core group including the school principal or other administrator, the referring teacher or general education teacher, school counselor, and parents of the child. The team must be familiar with the child in question. Each school will have its own format for the team and the title of the Team may differ from school district to school district.
What does the evaluation process involve?
School districts may use the same evaluation process as they use under the IDEA. Some schools may choose to adopt a different evaluation process. If so, the school must follow the requirements for evaluation as specified in Section 504 regulatory provision 34 C.F.R. § 104.35(a) – (b). The “evaluation and placement” provisions require standards and procedures for the evaluation which ensure:
Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
What must be considered in making placement decisions?
In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with § 104.34.
The team will develop the Section 504 Plan based on the evaluation results, the Section 504 identification determination, the child’s unmet needs, services and/or accommodations based on needs, the least restrictive environment for services; additionally, the team may discuss the need for possible staff training. The Team will make decisions regarding the necessary services and/or accommodations to allow for the child’s disability. Further, the Team will also consult with the parents/guardians of the child and give them the opportunity to provide additional input regarding the accommodations. Once the plan is developed it will be documented and the school will generally designate a Section 504 case manager to coordinate the child.
Is there a requirement to reevaluate the child?
Yes, periodic reevaluations of the child is required. This may be conducted in accordance with the IDEA regulations, which require reevaluation at three-year intervals or more frequently if conditions warrant, or if the child’s parent or teacher requests a reevaluation, but not more than once a year unless both the parent and school district agree otherwise.
Under Section 504, what procedural requirements must be met by administrators and teachers?
If the school has 15 or more employees and receives federal funding under Section 504, the school must do the following:
Provide written assurance of nondiscrimination whenever the school receives federal money under Section 504.
Designate at least one person to coordinate its efforts to comply with Section 504.
Adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504.
Take appropriate initial and continuing steps to notify students and parents that the school does not discriminate on the basis of disability. The notification shall identify the designated person for coordinating compliance. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipients’ publication, and distribution of memoranda or other written communications.
Annually undertake to identify and locate qualified children with disabilities within their jurisdiction who are not receiving a public education.
Annually notify persons with disabilities and their parents/guardians of the school’s responsibilities under Section 504 to identify and locate qualified children with a disability who are not receiving a public education.
Establish and implement a system of procedural safeguards, including:
Notice of rights to parents and students;
An opportunity for parents/guardians to review relevant records;
An impartial hearing with opportunity for participation by the child’s parents/guardian and representation by counsel;
Review procedures. One way to meet this requirement is compliance with the procedural safeguards under the IDEA.
Conduct a self-evaluation of the school facilities, programs, and policies to ensure that discrimination is not taking place. Conduct a self-evaluation with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, your current policies and practices and the effects thereof that do not or may not meet the requirements of Section 504 federal regulations. If needed, modify any policies and practices that do not meet the requirements of federal regulations and take remedial steps to eliminate the effects of any discrimination that resulted from adherence to your policies or practices. Be sure to consult with interested persons, including handicapped persons or organizations representing handicapped persons, when modifying policies and practices and taking remedial measures.
This above list is not exhaustive, and it is important to review Section 504 and the relevant federal regulations to ensure compliance. Always consult with legal counsel to ensure your school is fully compliant.
Section 504 requires a school district to provide a “free appropriate public education” (FAPE) to each qualified person with a disability who is in the school district’s jurisdiction, regardless of the severity of the disability. In general, all school-aged children who are individuals with disabilities as defined under Section 504 and IDEA are entitled to FAPE.
What exactly is a free education?
A free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of FAPE, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of FAPE.
An appropriate education is the provision of regular or special education and related aids and services that are (1) designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and (2) are based upon adherence to procedures that satisfy the requirements of FAPE and Section 504. Appropriate education may include regular or special education and related aids and services to accommodate the specific needs of a child with disabilities. To the maximum extent possible, students with disabilities should be in the same setting as students without disabilities. This includes classroom, meals, recess, and physical education. One way to ensure programs meet the individual needs of the child, is to develop Individualized Education Programs (IEP) for each child with a disability. IEPs are required when schools receive funding under IDEA.
What if a school can’t provide a free appropriate education to a child with a disability?
If the public school cannot adequately provide the child with the disability a free appropriate education, the school may place the child in or refer the child to a program other than one it operates. The school still remains responsible for ensuring the education offered is an appropriate education as defined by law and is also responsible for the costs associated with the placement. The school must also provide transportation to and from the aid, benefits, or services at no greater cost than would be incurred if the child were placed in the aid, benefits, or services operated by the school.See 34 C.F.R. § 104.33(c)(2).
Is a student still covered under FAPE if they go to private school?
No, if the parents/guardians of the child elect to place the child in a private school after the public school has made available a proper free appropriate education in compliance with the federal regulations, the school is not required to pay for the person’s education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedural safeguards.
Brief Overview of the Americans with Disabilities Act of 1990 (ADA) and Public Schools
What is the American Disabilities Act of 1990 (ADA)?
The ADA is similar to Section 504 as it is a civil rights legislation for individuals with disabilities. The ADA is a federal law that makes it illegal to discriminate against a person with a physical or mental impairment which substantially limits the child’s ability to care for himself or herself, perform manual tasks, or engage in any other “major life activity,” such as walking, seeing, hearing, speaking, breathing, or learning, in an age-appropriate manner.
How is the ADA different from Section 504?
The ADA is much broader than Section 504 as it applies to almost every entity in the country, regardless of whether it receives federal funding. Churches and private clubs are exempt from the ADA. Private schools not affiliated with a religious organization must comply with the ADA but may not have to comply with Section 504 because they do not receive federal funding.
What if a student has a disability that is not automatically covered by ADA?
Each child not automatically covered by ADA requires an individualized assessment to determine if he or she is substantially impaired in one or more major life activities. For example, the following children might be considered a child with a disability under ADA: a child with autism, learning disorder, ADHD, cerebral palsy, severe food allergies, diabetes, or a mental or emotional illness.
What types of people are protected under ADA?
Four categories of people are protected under ADA from discrimination on the basis of disability:
People with a physical or mental impairment which substantially limits one or more major life activities;
People with a history of a physical or mental impairment which substantially limits one or more major life activities. For example, this protection may include a child with a history of seizures;
People who are regarded as having a physical or mental impairment which substantially limits one or more major life activities. For instance, if the child’s teacher believes the child has a learning issues, then ADA would be applicable; and/or
People and/or entities associated with people who have a physical or mental impairment which substantially limits one or more major life activities.
Texas State Requirements Not Mandated by Federal Law
At least one regular education teacher of the student;
At least one special education teacher of the student;
A representative of the school district who is qualified to provide or supervise students with disabilities, is knowledgeable about general education curriculums, and is knowledgeable about the availability of the resources of the school district;
An individual able to interpret instructional evaluation results;
At the discretion of the parents or the school district someone who has knowledge or expertise regarding the student and related services personnel;
Where appropriate, the student themselves;
Where appropriate, a representative from the agency that will provide any transitional services;
Where appropriate, a representative from CTE; and
A professional staff member that is responsible for language proficiency assessments. In addition, if the student has any suspicion or documentation related to visual or auditory impairments, the ARD must have a teacher certified in the education of students with visual or auditory impairments.
What is career and technical education and how does it benefit special education students?
With support from the federal government, students in middle and high school can begin receiving coursework that directs them to learn certain skills for career or technical placement after graduation. Career and technical education courses are typically critical in the graduation of many students in special education and benefit the student in the student or family’s post-graduation goals.
Does Texas provide services for students outside of the school year?
Yes, Texas provides extended school year services (ESY). Whether the student needs the ESY services is determined on a case by case basis by the ARD committee. The School District may not limit ESY services to categories of disabilities or unilaterally limit the type, amount, or duration of ESY services.
How does a student receive extended school year services (ESY)?
In order to receive ESY services, there must be either a formal or informal documented evaluation provided by the school district or the parents that demonstrate one or more critical areas under the IEP there has been significant regression that cannot be remedied in a reasonable period of time. That is the student must either be stalled in the current IEP or falling behind in the IEP.
Brief Overview of the Special Education Requirements Under Every Student Succeeds Act (ESSA)
Signed on December 10, 2015, the ESSA reauthorizes the Elementary and Secondary Education Act (ESEA) for four years and enacted significant changes from the predecessor, No Child Left Behind Act (NCLB). Generally, the ESSA gives states more freedom to create their own accountability systems while reducing federal intervention. States must still develop a comprehensive system of standards, and assessments and hold schools accountable for meeting the state’s education goals.
ESSA established specific opportunities for students with disabilities as well as the special education educators working with the students. Below are some of the important special education provisions provided in the ESSA:
What assessments, regular or alternative, are allowable?
Students with disabilities may be assessed with the regular state assessment, the State of Texas Assessments of Academic Readiness (STAAR), or the state may elect to develop an alternative state assessment for students with more severe cognitive disabilities. In Texas, we have the STAAR Alternate 2 for students receiving special education services that have significant cognitive disabilities. States electing to adopt the alternative assessment, must show the following:
The system is aligned with state academic standards.
The system promotes access to the general education curriculum.
The system reflects professional judgment as to the highest standards achievable by students with severe cognitive disabilities.
The system is designed to ensure any student meeting the alternative standards is on track to pursue postsecondary education or employment.
What testing accommodations are allowable?
To allow as many students to participate in the regular state assessment, all states must provide accommodations for those students receiving accommodations under the IDEA. For example, if an IEP allows the student to have additional time to complete testing, the school may provide the same accommodation for STAAR testing.
How does special education factor into a school’s accountability?
States must set long term goals and measures of interim progress for all federally required accountability measures for students with disabilities. The accountability measures include proficiency on annual state assessment and four-year high school graduation rate.
What qualification do teachers need to administer the assessments?
States must ensure special education, general education teachers and other staff working with the students understand how to administer the alternative assessments and are able to provide the appropriate and necessary accommodations. The ESSA eliminates the federal requirement of “highly qualified teacher” and enables states to revert to its own teacher certification requirements to determine which teachers are qualified to teach specific content to students with disabilities.
Six Things Administrators Need to Know about Special Education
Public school administrators have an important role in the special education process in our schools. Principals and administrators need to have a fundamental knowledge of the special education laws and processes. They must ensure the faculty and staff are complying with the intricate details of writing legally acceptable IEPs and providing the necessary services to ensure student success. One of the most helpful resources available to administrators is “The Principal’s Guide to Special Education” written by Dr. David Bateman. Below are some of the crucial areas for principals and administrators to understand about the special education in Texas.
Working Knowledge of Special Education Laws. Although principals do not need to be disability experts, they must have a fundamental knowledge that will enable them to perform essential special education leadership tasks in their schools. Principals must have an understanding of IDEA, Section 504, FAPE, ESSA, and the ADA to effectively administer special education programs in their schools.
Individualized Education Programs (IEPs). The school principal is responsible for ensuring IEPs are properly implemented and adhered to by the educators and staff. Failure to take responsibility and exercise to ensuring IEPs are followed can result in severe consequences. In severe cases, principals can be removed for violating student IEPs. Principals must provide leadership to the IEP teams and communicate regularly with teachers and the parents of special education students. They must be proactive, get involved in the “tough cases” early on and address potential problems. Principals must thoroughly understand the federal and state requirements to not only protect themselves from disciplinary action, but to also ensure every student with special needs is receiving an appropriate education with the appropriate services. Principals may often be asked or tasked with setting up and leading an IEP or Evaluation meeting, so it is very important to be knowledgeable about the ARD process, the contents of IEPs, and the team that needs to be assembled. Ensuring that each student properly receives FAPE is of utmost concern.
Faculty and Staff. All faculty and staff who are in direct contact with a student with a disability or special need, must read and understand the child’s IEP. They cannot rely upon “I didn’t know that was in the child’s IEP.” Principals need written documentation that the IEPs have been read and understood by the faculty and staff. Principals must also ensure that any need for training or specific teacher resources are made available for the faculty and staff.
Procedural Safeguards. Principals must ensure the educators give parents a copy of the Notice of Procedural Safeguards at least once a year. The principals must be familiar with the due process requirements and ensure the faculty and staff are strictly adhering to the policies under state and federal Law.
Discipline. Principals are the enforcers of discipline for all students and must maintain a safe environment for the students. However, disciplining special education students is slightly different and requires a case-by-case analysis. Principals are responsible for ensuring the requirements under federal law and state law, including knowing when a student may be removed from his or her current placement for misconduct without conducting a “manifestation determination.” When a child is removed less than 10 days, the school does not have to conduct the manifestation determination. If the removal is 10 days or greater, a manifestation determination must take place to determine if the misconduct is related to the student’s disability. The result of the determination will impact the manner of discipline.
Cameras in Rooms of Special Education Students. Under state law, principals or assistant principals of a school or campus at which one or more students receive special education services in a self-contained classroom or other special education setting may request in writing that equipment be provided to the school or campus. The 84th Legislative Session resulted in new timeline requirements regarding cameras in the classroom.
Schools must respond to requests related to video cameras within 7 school business days with an authorization for the request or a statement describing the request denial
Schools must begin operating the video camera within 45 school business days of the request unless the school receives an extension from TEA.
Schools must maintain a video camera in the classroom or special education setting for the remainder of the school year during which the request was received unless the requestor withdraws the request.
Schools electing to discontinue use of the video camera during the school year must notify all parents of the children who regularly attend the classroom or special educating setting no later than 5 days before the camera use ends.
The law also established new guidelines regarding the preservation of video footage by:
Decreasing the time period for which schools must retain recorded video from 6 to 3 months
Requiring district or charter schools to retain recordings if a requestor asks to view the footage. The school MUST retain the footage from the date of the request until the requestor actually views the footage AND a determination is made about whether the recording documents an alleged incident.
Clarifying that the schools must retain the recording that documents an alleged incident until the incident has been fully resolved, including exhaustion of all appeals.
Six Things Teachers Need to Know about Special Education
Because federal laws require that students with disabilities receive a free and appropriate public education in the least restrictive environment, many teachers will have special education students in regular classrooms. It is important for educators to know the requirements of the federal IDEA as well as applicable state laws and policies related to special education. Although this is not a comprehensive list, the following are the top six things an educator should know about special education in the state of Texas.
Federal Laws. Be familiar with the Federal requirements of the IDEA, Section 504, and the ADA. Educators must be able to identify students who may need special education resources and how to start the process for completing an IEP for the student. Regular education teachers must implement the provisions of Section 504 plans when those plans govern the teachers’ treatment of students for whom they are responsible. If the teachers fail to implement the plans, such failure can cause the school district to be in noncompliance with Section 504. State law says that in a mainstream classroom “students with disabilities and their teachers [must] receive the direct, indirect, and support services … necessary to enrich the regular classroom and enable student success.” State rules provide that support services shall include, but not be limited to, collaborative planning, co-teaching, small group instruction with special and regular education students, direct instruction to special education students, or other support services determined necessary by the Admission, Review and Dismissal (ARD) committee.
ARD Process. State law provides that the regular education teacher who serves as a member of a student’s ARD committee must, to the extent practicable, be a regular education teacher who is responsible for implementing a portion of the student’s IEP. However, if issues considered at an ARD meeting do not require a specific teacher’s participation, the parents and the district can agree in writing that the teacher need not attend. If a specific teacher’s participation is required, the parents and the district can agree to have that teacher provide information in writing, in lieu of attending.
Role of Special Education Teacher on the IEP Team. Special education teachers are extremely valuable assets to the IEP team. Teachers must be able to provide information about the student’s strengths and weaknesses, past achievements and progress on the current IEP. They should be able to provide strategies for effectively providing FAPE, including appropriate accommodations and/or modifications to help the child access the general curriculum in a successful manner. The team may rely upon the teachers to suggest courses of study or educational experiences that relate to the student’s individual preferences and interests. Teachers may also provide insight on additional special education related services that the child may need, such as occupational or speech therapy. Further, Teachers may connect students and parents to the appropriate post-school services prior to the student leaving high school and transitioning into college or the workforce. Teachers will provide the appropriate input for transition service needs and incorporate those supports into the IEP.
Special Health Needs. Some special education students may have special health needs. The Texas Education Code requires the Health and Human Services Commission maintain a website that provides resources for teachers who teach students with special health needs. The website includes information regarding the treatment and management of chronic illnesses and how such illnesses impact a student’s well-being or ability to succeed in school. Additionally, the website includes information regarding food allergies that are common among students, including information about preventing exposure to a specific food when necessary to protect a student’s health and information about treating a student suffering from an allergic reaction to a food. For more information, visit: https://tea.texas.gov/Texas_Schools/Safe_and_Healthy_Schools/Coordinated_School_Health/School_Health_-_Students_with_Special_Health_Needs/
Discipline. Disciplining students with special education needs can be a confusing area and may result in legal implications if the appropriate procedures are not followed by the educator. Generally, a student under the IDEA is entitled to two different procedural protections prior to the implementation of discipline. The first protection, is the general education due process procedures under the Texas Education Code Chapter 37 and the U.S. Constitution, a process applicable to every student. The second protection is the procedural protections that are triggered when there is a change of placement for the student. If a child is removed from his or her current placement for more than 10 days, the school must conduct a manifestation determination to review the conduct of the child. Students with disabilities removed from their current placements through suspension or expulsion must continue to receive educational services to enable them to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting their IEP goals.
General Education Teachers. Due to the encouragement of the inclusion of students with disabilities in the general education setting, general education instructors must be familiar with each students’ IEP, including the necessary accommodations and/or modification the programs require. Teachers should maintain communication with students, parents, or guardians and keep the special education teachers informed as to the performance of students with disabilities in the classroom on a regular basis. Teachers should also stay on top of any modifications or adaptations to IEPs that need to be developed or implemented. Most importantly, general education teachers must buy into the concept of inclusive programming facilitate the participation and learning of all students.
Ten Things Parents Need to Know about Special Education in Texas
Navigating the special education laws and requirements can be daunting for parents. With federal and state laws governing special education, it is easy to get lost or overwhelmed. Below are a few tips and brief descriptions of some of the top things parents should know about Special Education in Texas.
Early Childhood Intervention. Many parents may not realize that the IDEA provides assistance to not only school-aged children, but also to infants and toddlers with disabilities through early intervention services. Early Childhood Intervention (ECI) is a statewide program within the Texas Health and Human Services Commission for families with young children (birth up to age 3), with developmental delays, disabilities or certain medical conditions that may impact development. For more information on ECI, visit the Health and Human Services Commission website at: https://hhs.texas.gov/services/disability/early-childhood-intervention-services
Eligibility for Special Education. There is a two-part test used to determine if your child is eligible for special education and related services. First, the child must have a disability. Some eligible disabilities include, but are not limited to, auditory impairment, autism, visual impairment, and specific learning disabilities. If the evaluation shows that the child has a disability, the ARD Committee must then address the second part of the test by deciding whether as a result of the disability, the child requires special education and related services. Not all struggling students are eligible for special education services. Some learning problems may stem from other factors such as the child having a limited English-language proficiency and other children may be found not to have a disability. If the evaluation reflects there is no disability, the school may recommend or parents could ask about general education services that may assist the child. If the evaluation shows the child has a disability but does not have an educational need for special education related services, the child is not eligible for any special education services. The child must meet BOTH parts of the test in order to receive special education and related services.
Individualized Education Programs. One of the most important documents that will impact the child’s learning and school experience is the IEP, Individualized Education Program. These documents are usually updated once a year and includes the goals for the child created by the parents, the child’s teachers and the staff that work with the child every day. The meeting to create and discuss your child’s IEP is called the Admission, Review, and Dismissal (ARD). It is important to understand how the ARD committee meeting works to ensure the best possible IEP for the child. The Major Components of an IEP include the following:
The child’s present levels of academic achievement and functional performance
Annual goals for the child to meet
Description of the special education, supplemental aids, and related services that the school will provide for the child
Information on how the child will participate in state and district-wide assessments
Other needs that the child may have that must be addressed related to his or her specific disability, needs, or circumstances
Transition services (when age-appropriate and needed)
Admission, Review, and Dismissal Meetings. Some helpful tips to remember for the ARD meeting: Before the ARD Meeting parents should:
Write down anything they’ve noticed about their child’s behaviors, academics, and functionality
Request new additions to school records
Request copies of evaluation reports
Collect new medical and/or psychological documents
Talk with the child’s teachers and instructors about any new information or concerns
What to bring to the ARD Meeting:
Personal knowledge. No one knows the child the way parents do!
Something to write on to write down comments and ideas from the committee members
Bring any new documents, such as medical records, evaluations and test reports, that will be helpful for the committee to review or consider
Parents may bring a spouse, a friend or other advocate with them to the meeting.
What to Expect at the Meeting:
The committee will discuss the child’s present level of academic achievement and functional performance and progress
Parents and the ARD committee will develop, or review and revise the child’s IEP
ARD committees must review the child’s IEP and placement annually
Notice of Procedural Safeguards. Procedural safeguards are essentially the rights given to parents of children with disabilities. The IDEA requires schools to provide parents of children with disabilities a notice containing a full explanation of the procedural safeguards available under the IDEA and the regulations implementing the IDEA. Schools must provide this notice to parents in their native language. The Texas Education Agency produced a document available online that is intended to meet the notice requirement under the IDEA and to help parents of children with disabilities understand his or her IDEA rights. For more information, visit: https://framework.esc18.net/documents/pro_safeguards_eng.pdf
Independent Evaluations for Special Education. Special education laws, such as Section 504 and the IDEA, require every public school to provide an appropriate evaluation of the educational needs of children with disabilities as well as to those with suspected disabilities. A person with specialized knowledge and training in areas related to the child’s disability will conduct the evaluation. The evaluation will produce findings and recommendations for the child’s educational needs and the school will then use those results in developing the child’s IEP and considering placement needs. If parents disagree with the evaluation or a reevaluation conducted by the school, they may request an Independent Educational Evaluation (IEE) at the school’sexpense. The school must provide parents with information about where an IEE may be obtained as well as give them a copy of the school’s criteria for obtaining an IEE. If parents request an IEE, the school must pay for the IEE or request a due process hearing showing that the evaluation is appropriate. Parents may request one IEE at the school’s expense after each evaluation the school conducts, which is typically once a year. They may request additional IEEs, but the school will not be required to pay. Any information obtained from the IEE that meets the school’s criteria shall be considered by the ARD committee with respect to FAPE regardless of who pays for the IEE.
Disciplinary Procedures. Special rules govern disciplinary actions taken against children with disabilities. As a general matter, a child with a disability cannot be removed from his or her current educational placement for greater than 10 consecutive school days if the misconduct is related to his or her disability. Additionally, some disciplinary situations may trigger a requirement to hold an ARD committee meeting. 10-day Rule: If the child violates the code of conduct, the school must follow specific disciplinary procedures if the school removes the child from his or her current placement and the removal constitutes a change in placement. It will not be considered a change in placement for the school to remove the child from the current placement for 10 or less school days in a school year.
Change of Placement: If the school removes your child for more than 10 consecutive days or more than 10 days in a school year constituting a series of removals, the removal(s) considered a change in placement.
State Assessments. Federal law requires schools to give state assessments to all children to determine whether the school has met the required state academic content standards. In Texas, the content standards are known as Texas Essential Knowledge and Skill, or TEKS. Children in receipt of special education services will also take the appropriate grade-level content state assessment. The ARD committee will determine if the child requires accommodations to participate in the state assessments. The appropriate accommodations must be included in the child’s IEP. Further, the ARD committee may also determine if the child qualifies for an alternative state assessment instead of participating in the state or district wide assessment. The child’s IEP must include a statement of why the child cannot participate in the regular assessment and why the alternate assessment selected is appropriate for the child. If the child does not satisfactorily perform on the state assessment, the ARD committee must address the manner in which the child will participate in an intensive program or instruction or in an accelerated instruction program.
Bullying. Sadly, children with disabilities are at a higher risk for bullying due to their physical and/or intellectual vulnerabilities and their differences with social skills. Bullying may happen online or in person. If parents suspect their child is being bullied, there are numerous options for them to help the child. Parents should get the facts and talk to the child’s teacher(s) right away. They may ask for an ARD meeting. If the bullying is preventing the child from receiving a free appropriate public education, the ARD committee must revise the child’s IEP. Further, parents may ask for a 504 meeting (if the child is receiving services under Section 504) if the child’s needs have changed due to the bullying.In Texas, parents have the right to request their child or the bully be transferred to a different classroom or school due to the bullying. If a child who is accused of bullying and receives special education services, he or she cannot be disciplined until a committee has reviewed what happened.
For further information about bullying, see Bullying
Afterschool Activities. If the child is enrolled in an afterschool activity that is run by the school, the IDEA and Section 504 require school districts to take the necessary steps to ensure children with disabilities have an equal opportunity to participate in after school activities. For example, if the child has an IEP, the IEP must include the aids and services the child requires to take part in the activity. If the afterschool activity is not run by the school, the rules regarding accommodations may be different. The child will not be protected under the IDEA or Section 504, but the child still has rights under the ADA. The ADA states that public buildings, community organization, and nearly all other programs need to make accommodations and be accessible.
This project was made possible thanks to a generous grant from the Texas Bar Foundation