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- What is “special education”?
Special education means instruction specially designed to address the unique needs of a child with a disability that is provided free of charge to the parents. 34 C.F.R. § 300.39. Special education programs in Texas are governed by both federal and state law. In most instances, state law will mirror federal law. In others, it may provide greater or more specific protections than federal law. However, in no circumstances may state laws limit the protections offered under federal law. Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE) in the least restrictive environment (LRE).
- Who provides special education?
The state educational agency, Texas Education Agency (TEA), and local school district are responsible for providing special educational services to children with disabilities. In Texas, the school district will typically provide special educational services. If the school district fails to provide special educational services, the Texas Education Agency is ultimately responsible for ensuring students with disabilities are provided with special educational services. 34 C.F.R. § 300.149(a); 20 U.S.C. § 1413(a)(1); 20 U.S.C. § 1412(a)(11).
The Texas Education Agency is divided into twenty Regional Education Service Centers (ESC) located throughout Texas. Individual ESCs have a specific area of expertise, or “statewide leadership,” for special education related projects. Parents may turn to their regional ESC for information about special education practices and resources. (For a more detailed explanation of how the different regional ESCs, see Texas Project First’s website at
- Who is eligible for special education?
Children with a qualifying disability in need of special educational services in order to benefit from their education are entitled to receive special education and related services. Eligible disabilities include:
- Auditory Impairment
- Emotional Disturbance
- Mental Retardation
- Physical disability
- Orthopedic Impairment
- Other Health Impairment
- Learning Disability
- Speech Impairment
- Traumatic Brain Injury
- Visual Impairment Title 20 United States Code (U.S.C.) § 1401(3); 34 Code of Federal Regulations (C.F.R.) § 300.8; Texas Education Code (Tex. Ed. Code) § 29.003.
Students between the ages of 3 and 21 may be eligible for special education services. Tex. Ed. Code § 29.001. Students who have graduated from high school with a regular diploma are not eligible for such services. 34 C.F.R. § 300.102; 19 TAC § 89.1035. Students with visual or auditory impairments are entitled to a free appropriate public education (FAPE) from birth. 19 TAC § 89.1035.
- What is the Admission, Review , and Dismissal (ARD) committee?
In Texas, a student’s eligibility for special educational services is determined by the student’s Admission, Review and Dismissal (ARD) committee. 19 TAC § 89.1040(b). This multidisciplinary committee collects and reviews relevant evaluation data when determining a student’s eligibility. 19 TAC § 89.1040(b). The committee members include, but are not limited to, the following:
- The student’s parent(s);
- A regular education teacher of the student;
- A special education teacher of the student;
- A district representative;
- A person who can interpret the evaluation results and implications for the student;
- The student, if appropriate;
- Other individuals who have knowledge or special expertise regarding the student and are invited by either the student’s parent or the school.34 C.F.R. §300.8; 19 TAC § 89.1050(c).
Children are ineligible for special education if the determinant factor for their learning problems is lack of appropriate instruction in reading or math, or the student’s Limited English Proficiency (LEP). 20 U.S.C. § 1414(b)(5); 34 C.F.R. § 300.306(b).
If the ARD committee finds that the student does not have a qualifying disability for special educational services, then the school may recommend other services or programs to address the student’s problems. See “A Guide to the Admission, Review and Dismissal Process” released by the Texas Education Agency (TEA) in March 2004, available at http://framework.esc18.net/Docs/ARD_Guide_MAR_2010_English.pdf.
If the ARD committee determines that the student has a qualifying disability, the committee must decide whether the student needs special educational services to benefit from education. Even if the student has an eligible disability, the student is entitled to receive these services only if he/she has an educational need for them. Tex. Ed. Code § 29.002; 34 C.F.R. §300.34.
- Are there services available for children with disabilities under the age of 3?
Children under the age of 3 who show signs of developmental delays may be eligible for early childhood intervention services from the Texas Department of Assistive and Rehabilitation Services (DARS). 40 TAC § 108.3; 40 TAC § 108.7; 40 TAC § 108.19. (See also TEA’s “A Guide to the Admission, Review and Dismissal Process”.)
The planning and implementing of these services for children under the age of 3 are done by the Texas Education Agency (TEA) and Texas Interagency Council on Early Childhood Intervention. 19 TAC § 89.1050(b). Instead of an ARD committee, an individualized family services plan (IFSP) meeting is held to address the unique needs of children under the age of 3 who are experiencing developmental delays. 34 C.F.R. § 300.25; 19 TAC § 89.1050(b).
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
Parents, as well as school personnel involved in a child’s education, may request a referral for a full individual evaluation. Through this evaluation, professionals can determine whether the child needs and qualifies for special education and related services. 40 TAC § 89.1011; 34 C.F.R. § 300.301.
If the school is proposing to evaluate the child, it must give notice to the parent and make reasonable efforts to obtain the parent’s informed consent before performing the evaluation. If the parent refuses, then the school will not be in violation of the requirement to provide FAPE to the child. 34 C.F.R. § 300.300(a).
The purpose of the initial evaluation is to determine:
1) whether the child qualifies for and requires special services, and
2) identify the child’s educational needs. 34 C.F.R. § 300.301(c).
- What information is used in the evaluation?
The evaluation is conducted using information about the child from various sources, including parents and teachers, as well as a review of existing evaluation data. The school district must conduct and complete a written report of the evaluation within 60 calendar days of obtaining written parental consent. Tex. Ed. Code § 29.004. Parents are entitled to receive a copy of the completed evaluation and the documentation of determination of eligibility at no cost. 34 C.F.R. § 300.306(a).
- What if I don’t agree with the results of the evaluation?
If the child’s parent disagrees with the results of the evaluation, the parent may request an Independent Educational Evaluation (IEE), which must be considered at the child’s IEP. 34 C.F.R. § 300.502(b). An IEE is conducted by an impartial examiner who is not employed by the district. 34 C.F.R. § 300.511. The district must then either provide an IEE at no cost, or file for a due process hearing to determine whether its evaluation was appropriate. If the hearing officer determines that the evaluation was appropriate, parents must pay for an IEE; but if the hearing officer orders an IEE, then the school must pay for it. 34 C.F.R. § 300.502(b).
- Once a child is identified as being eligible for special education, what are the next steps?
Once it is determined that a child is eligible for special education, an Individualized Education Plan (“IEP”) must be developed within 30 days. In Texas, the IEP is developed by a multidisciplinary team called the Admission, Review and Dismissal (ARD) Committee. 19 TAC § 89.1040; 34 C.F.R. § 300.323.
The ARD committee consists of the child’s parents, a regular education teacher, a special education teacher, someone who can interpret the evaluation results, and a representative of the school district. 19 TAC § 89.1050; 34 C.F.R. § 300.321. Other participants may include the school psychologist or other qualified practitioners with experience in the child’s disability. 19 TAC § 89.1050.
- What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
The IEP outlines in writing the educational program for the student and how the student’s progress will be measured. 34 C.F.R. § 300.320.
The IEP must include:
- The student’s present levels of educational performance;
- Measurable annual goals;
- A description of how the student’s progress toward meeting the annual goals will be measured;
- Specific special education and related services to be provided to the child;
- The extent to which the child will not participate with nondisabled children in the regular classroom and extracurricular activities;
- Individual accommodations that are necessary to measure the child’s educational performance;
- The projected date for the beginning of the services and the anticipated frequency, location, and duration of the services;
- Transition services needed for students 16 years or older;
- Extended school year services if needed;
- Transfer of rights to the child at age 18.34 C.F.R. § 300.305.
- Can a child be re-evaluated?
The child must be reevaluated at least once every 3 years and not more than once a year, unless the parent and school agree otherwise. Within these limits, the reevaluation must be conducted at the request of either the child’s parents or teacher, or if the child’s needs have changed and warrant a reevaluation. 34 C.F.R. § 300.323.
- Can a school provide special education services to my child without my consent?
If the school decides to conduct an initial evaluation of the student for special services, the school must make reasonable efforts to obtain informed parental consent. 34 C.F.R. § 300.300. If the parent does not consent, the school may pursue the evaluation through due process or mediation procedures. 34 C.F.R. § 300.300(a)(1), (3). However, the school may not provide special education services without parental consent. 34 C.F.R. § 300.300(b).
- Is my child still eligible for special education services if he/she attends a new school?
If a student with an IEP moves from one school district to another within Texas, the new district must provide the child with FAPE. 34 C.F.R. § 300.323(e). The new district must either adopt the child’s existing IEP or develop and implement a new IEP. 19 TAC § 89.1050.
If the student was in the middle of being evaluated for special education eligibility in the student’s previous school district, the new school district should work together with the previous district to complete the student’s evaluation within 60 calendar days from which the current school district receives written consent from the student’s parents. 19 TAC § 89.1050(f)(1). The school must provide special education services within 30 days of verifying that the student qualifies. 19 TAC § 89.1050(f)(2).
If a student moves into Texas with an existing IEP, the new district must provide the student with FAPE comparable to those included in the student’s existing IEP until it conducts an evaluation or develops and implements a new IEP, if appropriate. 34 C.F.R. § 300.323(f).
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
If a parent believes the district has failed to implement a valid IEP or is in violation of special education law, the parent may file a complaint directly with the Texas Education Agency (TEA). The complaint must include the following:
- A statement that the school district is in violation of special education law;
- The relevant facts;
- The complainant’s contact information and signature;
- The information of the child involved;
- A proposed resolution.34 C.F.R. § 300.153(b).
The complaint must be filed within 1 year of the alleged violation. The TEA must:
- investigate the basis of the complaint,
- review all relevant information, and
- issue a final written decision regarding whether the district is in violation of special education law within 60 days of receiving the complaint. The decision must also include the reasons for its conclusion. 34 C.F.R. § 300.152(a).
- What options does a parent have if s/he disagrees with the proposed IEP placement or services?
If a parent disagrees with or objects to the proposed IEP placement or services, or if the parent believes the district has failed to comply with the child’s IEP, the parent has several options in addressing the issue.
The Texas Education Agency (TEA) encourages parents and school districts to resolve disputes at the lowest level possible, such as ARD meetings and meetings with the student’s teachers or school administrators. 19 TAC § 89.1150(b)-(c). Parents may also pursue mediation through the TEA. 34 C.F.R. § 300.506, 20 U.S.C. § 1415(e).
- What are the procedures for due process?
Another option is for the parent to file for due process. 19 TAC § 89.1165; 19 TAC § 89.1151. In Texas, such requests for due process must be filed in writing with the Texas Education Agency (TEA) within 1 year of when the reason for the disagreement occurs. 19 TAC § 89.1151(c).
A complaint for due process is typically sufficient if it contains the following:
- The child’s name, address, and school;
- A description of the nature of the problem and related facts;
- A proposed resolution of the problem.34 C.F.R. § 300.508(b).
If the district believes that the complaint is insufficient, it may file a notice of insufficiency within 15 days of receiving the complaint. The hearing officer must then determine within 5 days whether the complaint is sufficient. 34 C.F.R. § 300.508(d).
The parent and district must participate in an informal resolution meeting unless both parties agree to waive it. 34 C.F.R. § 300.510(a)(3). This meeting must occur within 15 days of the district’s receipt of the due process complaint, and the meeting must be concluded within 30 days of receipt. 34 C.F.R. § 300.510(a)(3); 34 C.F.R. § 300.510(b)(1).
If the parent refuses to attend this meeting and the parties have not waived it, the district may ask the hearing officer to dismiss the complaint. 34 C.F.R. § 300.510(b)(4). If the parent and district reach an agreement at the resolution meeting, the agreement must be put in writing. Both parties have 3 days to revoke their agreement, but if they do not, then the agreement is binding and enforceable. 34 C.F.R. § 300.510(a)(3). On the other hand, if the parent and district fail to reach an agreement at this meeting, the due process hearing must occur within 30 days of the district’s receipt of the complaint. 34 C.F.R. § 300.510(b)(1). After this 30-day period has elapsed, a final decision must be issued in writing by the hearing officer within 45 days. 34 C.F.R. § 300.510(b)(2). The hearing officer’s decision is final, but can be appealed to a civil court. 19 TAC § 89.1185.
A parent has many rights at the meeting. Some of these rights include:
- The parent must be notified of free or low-cost legal assistance. 34 C.F.R. § 300.507(b).
- The hearing must be conducted by an impartial hearing officer. 34 C.F.R. § 300.511.
- The child may attend the hearing. 34 C.F.R. § 300.512(c)(1).
- The parent may request that the hearing be closed or open to the public. 34 C.F.R. § 300.512(c)(2); 19 TAC § 89.1185(i).
- The parent has the right to have a copy of the record of the hearing and the decision at no cost. 34 C.F.R. § 300.512(c)(3).
- Parents may present witnesses and cross-examine witnesses presented by the district. 34 C.F.R. § 300.181(n).
Once a complaint has been filed, the student is entitled to “stay put” while the due process hearing is pending. This means the child must remain in his/her current educational program unless the district and parents agree otherwise. 34 C.F.R. § 300.518(a). If the hearing involves a child who is pending expulsion and the hearing officer determines that the child would injure or be injured in his/her current educational setting, the child may be moved to an temporary alternative educational setting. 34 C.F.R. § 300.532(b)(2).
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
Under federal and state law, children with a qualifying disability are entitled to a “free appropriate public education” (FAPE). FAPE means special education and related services that meet appropriate standards, are provided free of charge, include preschool through secondary education, and follow the guidelines established by an Individual Education Program (IEP). 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
To the extent possible, children with disabilities should be educated in the Least Restrictive Environment (LRE), with children who are not disabled. Removing children with disabilities from regular classrooms should only occur if the disability is severe, and educating the child in the regular classroom environment would be unsatisfactory. 34 C.F.R. § 300.114.
An educational program is “appropriate” when it is designed to meet a child’s unique needs in accordance with his or her Individualized Education Plan (IEP). An appropriate program allows him or her to benefit from the education. 34 C.F.R. § 300.17(d).
- What is specially-designed instruction?
Specially-designed instruction may be applied in special education. The main purpose of this instruction is to make the content, methods, and their method of delivery more adaptable to the particular and unique needs of an eligible child. These unique needs arise as a result of the child’s disability and by trying to address them, it can be possible to “ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. § 300.38(b)(3).
Note that Texas uses the term “special services” to include both special education instruction in the classroom or in an alternative instructional arrangement, as well as related non-instructional services outside the classroom that help a child with a disability benefit from special education instruction. Tex. Ed. Code § 29.002.
In Texas, educational benefit is met if it is meaningful, or “likely to produce progress, not regression or trivial educational advancement.” Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245 (5th Cir. 1997) (quoting Polk v. Central Susquehanna Inter. Unit 16, 853 F.2d 171, 182 (3rd Cir. 1988)).
- In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
A school’s obligation to provide a free appropriate public education includes the provision of “related services” that allow a student to benefit from his or her special education instruction at no cost to the parents. 34 C.F.R. § 300.17; 34 C.F.R. § 300.39. The ARD committee determines which related services the student needs. Related services include, but are not limited to:
- Speech-language therapy;
- Audiology services;
- Social work services in school;
- Early identification and assessment of disabilities;
- School health services;
- Interpreting services;
- Physical and occupational therapy;
- Parent counseling and training;
- Psychological services;
- Recreation.34 C.F.R. § 300.34(a).
- Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
The Texas Education Agency must ensure that special education and related services are provided in the least restrictive environment (LRE) appropriate for a child’s educational needs. To the extent appropriate, children with disabilities should be educated with children who are nondisabled. Children should be removed from the general class room only if reasonable supplementary aids and services are insufficient in allowing the children to benefit from education in regular classes. Children with disabilities should also participate with nondisabled children in nonacademic and extracurricular activities to the extent appropriate, such as recess and meals. Least restrictive environment is determined on an individual basis, not categorized according to disability. 34 C.F.R. § 300.114(a).
If the IEP team decides that a child’s needs cannot be adequately met in the regular classroom, even with modifications and services, the IEP team may decide that some combination of a specialized learning environment and the general classroom, or a more segregated setting, is necessary to permit that child to benefit from his or her education.
- Can a special education student be disciplined?
Like nondisabled students, students with disabilities who violate a code of student conduct may be suspended. 20 U.S.C. § 1415(k). However, students with disabilities may not be suspended for more than 10 consecutive school days without a manifestation determination review or parental consent. 34 C.F.R. § 300.530(e). Within 3 days of the student’s removal from class, the school must schedule a conference with the parent and student at which the school must provide the reasons for the student’s removal and an opportunity for the student to respond. Tex. Ed. Code § 37.009(a).
Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement.” 34 C.F.R. § 300.536. A school that seeks a student’s change of placement may not do so without parental consent or without a manifestation determination meeting. 20 U.S.C. § 1415(k)(1)(E). The manifestation determination meeting includes relevant members of the student’s IEP team, including the student’s parents, and must be held within 10 days of the school’s decision to change the student’s placement. 20 U.S.C. § 1415(k)(4). The purpose of the meeting is to determine whether the child with a disability may have his/her placement changed for more than ten consecutive school days for misconduct. 20 U.S.C. § 1415(k)(1)(E).
This involves determining two issues:
1) Was the student’s misconduct caused by, or had a direct and substantial relationship to, the child’s disability? or
2) Was the misconduct the direct result of the school’s failure to implement the student’s IEP? 34 C.F.R. § 300.530(e).
If the answer to either question is yes, then the student’s behavior is determined to have been a manifestation of his/her disability. A behavioral plan is then created (or modified if one already exists) based on a new behavioral assessment. The student must be returned to his/her placement unless the student’s parents agree otherwise. 20 U.S.C. § 1415(k)(1)(F). If the team determines that the student’s misconduct is not a manifestation of his/her disability, the parent may appeal by requesting a due process hearing. 34 C.F.R. § 300.532(a). The appeal should be resolved within 30 days, and in the meant time, the child must remain in the temporary educational setting. 20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f).
However, if the reason for the student’s suspension is related to illegal drugs, weapons, or injury to others or to the student, then the district may place the student in an intermediate alternative setting for up to 45 days without parental consent or a manifestation determination meeting. 20 U.S.C. § 1415(k)(1)(G); Tex. Ed. Code § 37.006(a)(2).
In Texas, a student with disabilities may be subject to an immediate emergency placement or expulsion by the principal of the school if the principal believes that the student’s current placement is disruptive or dangerous to others. However, the student is afforded the same rights as he/she would be in a nonemergency expulsion or suspension. Tex. Ed. Code § 37.019(b)-(c).
Students with disabilities must continue to receive educational services during any period of suspension beyond 10 days, during any period of temporary placement, and during any period of expulsion. 20 U.S.C. § 1412(a)(1); 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1). The services a child receives under these circumstances must enable him or her to continue to participate in the general curriculum and to continue to progress toward meeting his or her IEP goals, as well as to receive needed behavioral assessments and services. 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1)(i)(ii).
- Can parents see the school records of their special education child?
Yes. The parent of a child with a disability is entitled to inspect, review, and get a copy of the child’s written school records. 34 C.F.R. § 300.501, 34 C.F.R. § 300.613. The school may charge the parent for the cost of copying the materials. 34 C.F.R. § 26.102. A student’s school records include the student’s:
- Attendance records;
- Test scores;
- Disciplinary records;
- Counseling records;
- Psychological records;
- Applications for admission;
- Health and immunization information;
- Teacher and counselor evaluations;
- Reports of behavioral patterns.
Tex. Ed. Code § 26.004. The parent is also entitled to review all teaching materials and aids used in the child’s classroom, as well as review each test that the child takes. Tex. Ed. Code § 26.006.
Further, the parent is entitled to request correction or removal of information they believe to be inaccurate, misleading, or a violation of their child’s rights by filing such a request with the school. 34 C.F.R. § 300.618. If the school refuses to change the student’s records, it must notify the parent of its refusal and inform the parent of his or her right to a hearing. 34 C.F.R. § 300.618; 34 C.F.R. § 300.619. If the hearing outcome is that the information is inaccurate, misleading, or a violation of the student’s rights, the school must correct the information and inform the parent in writing. 34 C.F.R. § 300.620(a). If the outcome is that the information is correct or not a violation of the student’s rights, then the parent must be informed of his or her right to make a written statement disagreeing with this decision and to include it as part of the student’s records. 34 C.F.R. § 300.620; 20 U.S.C. § 1412(a)(8); 20 U.S.C. § 1417(c).