Feds say TEA failed to show progress on special education

The Texas Education Agency has failed to show it sufficiently addressed any of the U.S. Department of Education’s requirements for improving special education across the state, federal officials said in a letter to the agency last month.

The Oct. 19 missive said the agency was unable to provide federal officials with enough documentation and data to show it has completed its corrective action plan after a federal investigation found TEA put an arbitrary cap on the percentage of students districts could provide with special education services. Additionally, the letter stated local school districts continued to struggle with ambiguous guidance in some instances, and that some continued to violate federal disability law.

In the letter, officials with the U.S. Department of Education’s Office of Special Education Programs, or OSEP, said that while TEA has implemented some actions to address its violations of federal disability law, “OSEP cannot determine, in the absence of additional and up-to-date information, whether these actions have been sufficient to fully address the noncompliance. …”

Steven Aleman, a senior policy specialist with Disability Rights Texas, said his organization found the letter buried on the Department of Education’s website but had not heard from TEA officials that they received it.

“TEA needs to step forward and acknowledge they received

the letter — that they have to respond to the federal government and need input from school districts, families and other organizations to continue to move in right direction,” Aleman said. “The fact we had to discover this report ourselves is not encouraging.”

The agency issued a statement Thursday evening saying the Department of Education’s letter was in response to one the agency had sent it on Oct. 5.

In that letter, TEA said, Director of Special Education Programs Justin Porter asserted the state agency had demonstrated that the issues cited by federal officials “have been fully addressed through the corrective actions.” He noted that enrollments of special education students have increased by 112,000 since the 2016-17 school year. The percentage of Texas students in special education programs rose from 8.9 percent in 2016-17 to 10.7 percent last school year, according to TEA data.

“Our agency is responding to OSEP’s most recent request,” the TEA’s Thursday statement read. “We’re confident in the progress we’ve made on behalf of our state’s students served by special education.”

The letter is the latest fallout from the Houston Chronicle’s 2016 investigative series “Denied.” The report illustrated how state officials mandated that districts provide no more than 8.5 percent of their students with special education services, and districts that served more were subject to additional scrutiny and sanctions.

That cap led districts across the state to deny special education services and evaluations to hundreds of thousands of students.

Federal officials confirmed the Chronicle’s reporting in January 2018, and ordered TEA to create a corrective action plan. The TEAsent its initial plan to the U.S. Department of Education in April 2018, and federal officials required additional remedies in a letter that October.

Since then, the Chronicle has found problems with the agency’s response to Texas’ special education practices, including ongoing issues with its corrective action plan, how the agency oversees charter schools’ special education practices and how TEA failed to give guidance to help districts provide make-up services to students who previously were denied.

The Oct. 19 letter to TEA mirrored many of those findings.

For example, the letter notes that TEA had missed several self-imposed deadlines for completing some corrective actions. Among them was a pledge by the state agency to monitor all charter and public school districts to ensure they had created and implemented policies and procedures in place that satisfy requirements of the Individuals with Disabilities Education Act by Jan. 10, 2019. When federal officials asked during a May 2020 visit for evidence showing TEA had created a monitoring system, however, “TEA reported that it was still developing and finalizing its monitoring protocols and it had implemented a pilot program to monitor the policies and procedures ….”

OSEP also found the TEA failed to supply evidence it had provided information needed to get special education evaluations to parents of children who previously had been denied those. It also found that some of the information provided to parents contained errors regarding their rights under federal disability law.

“That’s also really, really disappointing. Right out of the gate, the information the state is providing to families is full of things that need to be fixed,” Aleman said. “How could we even get the first step of sharing information wrong?”

Another concern cited in the federal letter is the manner in which TEA has directed districts to find and help students who previously were denied special education evaluations and services. Under federal law, those students are entitled to make-up services known as compensatory education services. OSEP said the state education agency provided no evidence it had provided guidance to districts about compensatory services.

Lisa Flores spent an entire school year fighting with Austin ISD to get compensatory services for her son, Massimo Calderaro. She said he should have received about 96 hours of dyslexia instruction to make up for instruction he did not receive during the 2019-20 school year. This summer, Austin ISD agreed to give Massimo 33 hours of make-up time over the summer.

Massimo’s school determined he should continue receiving the make-up services until he catches up to where he should be. Flores, however, said the school has been unable to give him that extra instruction since this September. Flores said she thinks her son will need more compensatory services, but worries it could be a battle because of TEA’s guidance on the matter.

“If you read the guidance to districts they’ve posted, it’s clear as mud,” she said, adding she has little faith TEA will make changes after the most recent OSEP letter. “You know what’s going to happen? Nothing. They’re going to use legal speak and use legal maneuvers in order to avoid fixing it. The TEA does not care.”

Federal officials gave the TEA 90 days to submit additional information and data to show it has addressed the issues in its corrective action plan. If TEA is unable to meet that timeline, OSEP said the agency can have an additional 30 days so long as it submits a plan for collecting that information by the 90-day deadline.

If TEA misses both those deadlines, federal funding could hang in the balance. The agency received nearly $1.1 billion in IDEA funding in fiscal year 2019, according to the U.S. Department of Education. If the agency cannot demonstrate that it is following the law, that funding may be at stake, said Robbi Cooper, state leader for policy and advocacy at Decoding Dyslexia Texas.

“IDEA is a federal law that carries with it federal funds and when a state accepts those funds, they’re accepting terms of IDEA,” Cooper said. “If you’re taking the money, you have to follow the law.”