Kids once denied special ed being failed again
Lack of TEA guidance has led to few getting makeup services
More than two years after the U.S. Department of Education demanded that Texas education officials provide extra help for thousands of students denied special education, the state has failed to provide clear guidance to school districts, leaving struggling children to flounder, records show.
Federal officials in 2018 ordered the Texas Education Agency to try to undo damage caused by an arbitrary cap in place in Texas for years that instructed districts to keep the number of students receiving special education services under 8.5 percent.
By TEA’s own estimate, the number of existing and new students who were likely in need of special education but were not receiving it was as high as 189,000.
Being denied or delayed special education can trigger a requirement under federal law that students be provided with “compensatory,” or makeup services. But last school year, the first year the state started tracking those services, fewer than 7,900 of more than 101,400 students identified as eligible for special education were helped to compensate for lost time either due to delayed testing or previous denials, a Houston Chronicle investigation shows.
More than 85 percent of Texas’ 1,200-plus school districts did not identify a single student they thought should have been referred for special education test
ing before the 2018-2019 school year, according to TEA data.
Administrators from across the state reported conflicting guidance over which children should be considered for makeup services. Some districts were unsure how they should count those students in surveys. Public records requests to the TEA for guidance on providing makeup services turned up conflicting instructions.
Now, in the age of coronavirus, millions more families across the country are going to be looking to educators for help in making up lost time for disabled students who lost critical assistance during weeks of home instruction. But Texas, the only state that has tried to provide makeup services on a mass scale, should serve as more of a cautionary tale than a role model for other states, critics said.
TEA’s efforts to guide districts have been “completely ineffectual,” often leaving parents to fight for their children to get the help they need, said Dustin Rynders, supervising attorney for education at Disability Rights Texas.
The key lesson, he said, is there has to be “a mandate that it’s considered for every child” who is deemed eligible for special education.
TEA officials declined a reporter’s requests to interview state officials in charge of special education, saying they were too busy working with districts. But in a statement, officials said they now have a monitoring process in place and if “problems of a systemic nature are discovered, corrective actions are ordered.”
They also wrote guidance advising special education committees in schools to consider providing compensatory services once campuses reopen after the COVID-19 closures.
There is no question that with schools closed during the coronavirus pandemic, TEA officials, teachers and district-level special education coordinators are working overtime to help. However, past missteps have generated mistrust among some parents.
Lisa Flores’ son, Massimo, was tested by his Austin ISD school and diagnosed with autism and dyslexia in February 2018. He switched schools at the beginning of the 2019-2020 school year, and the help he was receiving stopped, his mother said. Eventually, school officials had a dyslexia specialist create a plan for the now-13-year-old, but district officials are not responding to her emails asking about makeup services, she said.
With his school closed due to the coronavirus, Massimo is missing out on some of the regular special education services he was getting, which Flores believes he also might need to be compensated for once schools reopen.
“My son is already three grade levels behind,” Flores said. “He was making the most progress with dyslexia instruction, but that was one-on-one. Now he’s just getting online resources.”
Who qualifies?
Schools have an obligation to ask parents for permission to test their children for special education if they suspect a student might have a disability, said Perry Zirkel, a recently retired professor emeritus of education and law at Lehigh University in Pennsylvania.
If the student is tested and found eligible, he said school staff are compelled to ask several other questions.
Chief among them: Should this student have been tested and getting services before?
If school officials “reasonably suspected” or knew the student may have had a disability but didn’t provide him with services for months, Zirkel said, then the student likely would be eligible for what’s known as compensatory services.
Compensatory services, in essence, provide students with extra help in order to make up for the services they may have missed.
“You owe him not only an (individualized education plan) in the future,” Zirkel said, “but you need to make up for what you didn’t give him in the past.”
Determining what those makeup services look like differs based on the student’s needs, how long they were without help and a host of other factors. And with COVID-19 closures, there are other questions to consider.
Zirkel said the first question is whether the district violated the Individuals with Disabilities Education Act by not providing services. If so, districts then must consider whether it was possible to provide services remotely. Other questions include whether schools made a good-faith effort to help and whether the student fell further behind because of the gap in services.
For some students, the pandemic is compounding years of delays in getting extra help.
Isabella Van Vliet knew something was making it difficult for her grandson, Gabriel Garza, to learn since kindergarten. He didn’t know his ABCs and could barely count even through third grade, although teachers in North East ISD just outside San Antonio let him pass to the next grade level each year.
Data shows that of 1,294 students found eligible for special education there in 2018-2019, zero received makeup services. Fewer than five were tagged as students who likely should have been evaluated before that school year.
After years of hounding the school and eventually hiring a special education advocate, school officials tested Gabriel at the end of fourth grade in 2019 and found he has both attention deficit hyperactivity disorder and is mildly autistic. He has been getting services for nearly a year, but he still struggles.
He shuts down when he doesn’t understand his homework. Despite Van Vliet transforming his bedroom into a classroom complete with a full-sized whiteboard and seeking outside tutoring, school records still show he’s not on grade level.
Van Vliet pushed officials at Windcrest Elementary School to provide him with extra help to try to make up for the years Gabriel was unidentified.
“I keep asking, ‘Can y’all get him to catch up? Is there an extra service you can do to catch up?’ ”
Van Vliet said the school’s response was consistently “no,” that there’s nothing they can do.
“The school failed him all those years and won’t take responsibility to get him to catch up,” she said.
Clear guidance needed
One of the biggest lessons in Texas’ effort to make up for its arbitrary cap on the percentage of special education students, first revealed by the Houston Chronicle in 2016, is the need for clear guidance on who qualifies for extra help and how to track them, special education directors across the state said.
In response to a Chronicle public information request, the TEA said in fall 2019 that it could not locate a single record showing it had given guidance to school districts about compensatory services for students who may have been previously denied prior to coronavirus concerns.
But emails obtained by the newspaper show confusing and conflicting guidance offered in 2018 may have led to widespread confusion in the Houston region about makeup services.
One attorney in the Houston area told local education leaders that special education committees should ask whether every student they identify should get makeup services in case of a previous delay or denial. That did not sit well with former Region IV Special Education Director Ginger Gates.
She believed those committees should consider makeup services only if a parent or teacher says the student may have been denied in the past. Gates emailed TEA Special Education Director Justin Porter for his opinion in October 2018.
“You are (as usual) completely correct,” Porter wrote to Gates. “While we don’t want kids to be missed who would be eligible and in need of additional/compensatory services, soliciting claims in the way that attorney describes isn’t necessary.”
Administrators in the Dallas area said they heard similar guidance. In Garland ISD, officials said they only considered students who parents or teachers said had been denied in the past as eligible for makeup services.
TEA officials declined to make Porter available for an interview and wrote that school-based special education committees are expected to include any and all appropriate services for students.
But Rynders, with Disability Rights Texas, said the TEA knows districts denied hundreds of thousands of children special education services and that they have an obligation to make sure every campus-based special education committee asks about compensatory services.
“It is offensive,” Rynders said. “The state has an affirmative obligation to identify people who need services.”
How can the state do that, Rynders asked, if the parent didn’t know that compensatory services exist?
Records also show the TEA muddied the waters before its federally mandated special action and corrective action plans to fix special education were sent to the U.S. Department of Education.
Between a March 2018 draft and the final plans were released on April 23, 2018, officials removed almost every reference to “compensatory services,” instead replacing the phrase with “additional services.” In surveys sent to ISDs and charter schools, officials asked how many students received “additional services.”
When asked by a reporter why the language was changed, TEA officials first said that it was because of the legal meaning attached to “compensatory.” However, they later said it was because of instructions from the U.S. Department of Education.
Zirkle said it does not matter what term districts or the TEA or the federal government use — districts are still obligated by federal law to provide makeup services if officials violated IDEA.
TEA data shows Brenham ISD awarded “additional” services to 143 students. But Leslie Villere, the district’s special education director, said none in her district were given compensatory aid.
Villere said she took “additional” services to mean the number of students who were new to special education or students who were now receiving special education services in addition to their regular classwork.
“I may have done it wrong, but that’s how I interpreted it,” Villere said. “If they want us to interpret it differently, they just need to give us more guidance.”
Among Texas’ 10 largest school districts, Austin, Dallas, Fort Worth, Northside and North East ISDs did not award makeup services to any students in 2018-2019, according to TEA data.
Houston ISD identified 740 students who should have been evaluated earlier during the 2018-2019 school year, compared with 3,365 students who were tested last school year.
S. Lachlin Verrett, who oversees special education in Houston ISD, said regional education service centers have developed procedures to identify and serve students who need help catching up. He said HISD remains committed to identifying students it has missed in the past.
“We have to make sure students get the services that they need, and if they’re not getting it, whether it’s a misstep at the campus level or something we failed to execute at the district level, we have to fix it,” Verrett said.
Dorene Philpot, a special education attorney based in Galveston, said the definition TEA gave for “additional services” is essentially the same as compensatory services, just without the same legal obligations under the Individuals with Disabilities Education Act.
“I suspect that their real motivation was that if the word ‘compensatory’ was used, then that puts parents and others on notice that there might be something their kids are entitled to but didn't get,” Philpot said.
After coronavirus
Rynders, with Disability Rights, said he’s been encouraged by some school districts’ responses to the COVID-19 closures. Several school districts, including Klein, Katy and Duncanville ISDs, sent letters to parents that specifically mentioned special education students may be entitled to compensatory services after this is over.
And, although the TEA still has provided little help for compensatory services relating to the cap, it has been more responsive in addressing makeup service needs that may arise out of the current school closures, according to recent guidance documents the agency has released. State officials, who created a COVID-19 task force, told districts to consider makeup services for students once the closures end. They also offered innovative resources for teachers and speech pathologists to help students remotely and reduce the need for makeup work.
Selene Almazan, legal director for the national Council of Parent Attorneys and Advocates, said parents should still collect data while schools are closed. Are students reading slower than they used to? Make a note of it, she said. Were they previously able to do something they now struggle with? Log that, too. Are they gaining ground in areas? Write it down.
Flores, who has been trying to get makeup services for her son, Massimo, has that data in spades. She asked her son’s school to update his individualized education plan by testing his performance right before schools statewide shut down.
Even armed with that information, Flores worries that when she asks for more compensatory services from the COVID-19 closures, she’ll get the same answer as she has gotten for her previous requests for additional help: silence.
“The onus is still on parents to ask for compensatory services, and it will still be on parents once this is over,” Flores said. “I doubt any district will preemptively offer compensatory education. They will stay quiet and only consider it if a parent brings it up.”
“The school failed him all those years and won’t take responsibility to get him to catch up.”
Isabella Van Vliet, whose grandson was denied special education testing and services for years by North East ISD