Texas Part B 2017 Monitoring Visit Letter

Enclosure

This Enclosure describes the results of the Office of Special Education Programs’ (OSEP) 

monitoring visit to the Texas Education Agency (TEA) and twelve Independent School Districts 

(ISDs) in Texas during the week of February 27, 2017.1This Enclosure provides OSEP’s analysis

of factors related to the declining identification rate, and addresses the effect of TEA’s 8.5 percent 

special education representation indicator (known as the 8.5% indicator in its Performance Based 

Monitoring Analysis System (PBMAS)) on the declining identification rate, as evidenced through 

ISD-level data that documents the number of children identified as children with disabilities 

eligible for special education and related services under the Individuals with Disabilities Education 

Act (IDEA). 

As a result of the monitoring visit, OSEP determined that some ISDs took actions specifically 

designed to decrease the percentage of children identified as children with disabilities under the 

IDEA to 8.5 percent or below. Consequently, TEA’s use of the 8.5 percent indicator resulted in a

decline in the State’s overall special education identification rate from 11.6 percent in 2004 to 8.6 

percent in 2016. OSEP acknowledges that Texas has taken steps to address this issue. Notably, 

on May 22, 2017, Governor Abbott signed a new State law amending the State’s education code to 

prohibit the use of a performance indicator that solely measures the performance of ISDs based on 

the total number or percentage of enrolled children receiving special education and related 

services under the IDEA.

2

 

However, through evidence collected during monitoring interviews, OSEP also identified many 

situations where ISDs engaged in practices that violated the IDEA child find requirements. While 

the U.S. Department of Education (Department) encourages the use of supports for struggling 

learners that can be delivered in the general education environment, TEA and ISDs within the 

State have an obligation under the IDEA to ensure that evaluations of children suspected of having 

a disability are not delayed or denied because of implementation of such supports. OSEP found 

evidence demonstrating a pattern of practices in ISDs throughout the State in which evaluations

were delayed or not conducted for children who were suspected of having a disability because 

these children were receiving supports for struggling learners in the general education 

environment. 

Due to this pattern, OSEP finds that TEA did not ensure that all ISDs in the State properly 

identified, located, and evaluated all children with disabilities residing in the State who were in 

need of special education and related services, as required by 34 CFR §300.111. Consequently,

TEA failed to make a free appropriate public education (FAPE) available to all eligible children 

with disabilities residing in the State, as required by 34 CFR §300.101. This Enclosure concludes 

with OSEP’s three findings of noncompliance and associated required corrective actions.

 

1

The IDEA uses the term “local educational agency” (LEA), as defined in 20 U.S.C. §1401(19), to refer to school 

districts. However, in Texas an LEA is commonly referred to as an “independent school district” (ISD). This 

Enclosure uses the term “ISD” to refer to entities that also meet the IDEA’s definition of LEA. During the monitoring 

visit, OSEP visited Aldine ISD, Austin ISD, Ector County ISD, Everman ISD, Del Valle ISD, Ft. Bend ISD, 

Harlandale ISD, Houston ISD, Laredo ISD, Leander ISD, North East ISD, and United ISD.

2 Texas Senate Bill 160 (effective May 22, 2017):

http://www.legis.state.tx.us/tlodocs/85R/billtext/html/SB00160F.htm
Page 2 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

I. Background Information and OSEP’s Analysis of TEA’s 8.5 Percent Indicator 

TEA’s Special Education Representation Indicator Set Identification Rate Targets for Children 

with Disabilities at 8.5 Percent in TEA’s PBMAS

TEA’s PBMAS is an automated data system that reports annually on the performance of ISDs in 

selected program areas.

3

 TEA has used the PBMAS since 2004. TEA’s system for monitoring

ISDs based on the PBMAS has undergone revisions since 2004. However, since its inception, 

based on the results of this system, TEA has assigned each ISD to a “stage” (or level) of 

intervention, and has informed the ISD of any required actions. Through the PBMAS, TEA 

assigns a performance level (PL) for each indicator to reflect the ISD’s performance relative to the 

State’s established standard. 

Since its inception in 2004, the PBMAS has included a special education representation indicator

to measure the percentage of enrolled children who receive special education and related services

under the IDEA. TEA first assigned a PL for this indicator in 2005. TEA assigns a higher PL to 

an ISD when the percentage of children with disabilities exceeds 8.5 percent of the total enrolled 

population (hereafter, “8.5 percent indicator”).

4

 The PL for each indicator within the PBMAS has 

its own established cut points, but generally “the higher the PL is, the lower the district’s 

performance is.”

5

 

For example, in 2016, the 8.5 percent indicator measuring special education representation was 

Indicator 10. A PL of “0” was assigned to each ISD that reported 0-8.5 percent of children in the 

ISD identified as children with disabilities and receiving special education and related services 

under the IDEA; PL “1” was assigned to each ISD that reported 8.6-11 percent; PL “2” was 

assigned to each ISD that reported 11.1-15 percent; and PL “3” was assigned to each ISD that 

reported 15.1 percent or above.

6

 TEA noted in its November 2, 2016 response to OSEP that while 

the PBMAS special education representation rate indicator includes four ranges, only one of those 

ranges (PL 3, 15.1 percent and above) was ever used by TEA as a sole determinant for an ISD’s 

intervention staging. TEA also noted, however, that an ISD with special education representation 

rates in the 11.1-15.0 percent range (PL 2) “may be considered for intervention staging, but only if 

its performance on other PBMAS special education indicators indicates a high degree of concern.”

OSEP reviewed TEA’s PBMAS system, including its special education indicators, as part of prior 

monitoring visits in 2006 and 2011. In this most recent monitoring visit, however, OSEP 

examined the special education representation indicator’s association with the reduction in the rate 

of children identified as children with disabilities under the IDEA. OSEP found through its 

review of documents and information obtained through interviews with ISD staff, including 

teachers and school administrators, that some ISDs took actions specifically designed to decrease 

the identification of children for special education and related services under the IDEA when TEA 

indicated that the ISD’s rate exceeded 8.5 percent. By taking such actions, staff in certain ISDs 

indicated that there was an expectation that the ISD would receive less monitoring, at least on this 

 

3

For an overview of TEA’s PBMAS, see the PBMAS Manual available here: 

http://tea.texas.gov/Student_Testing_and_Accountability/PBMAS/.

4

In TEA’s 2016 PBMAS manual, Indicator 10 measures special education representation. For additional detail, see 

page 64 of the manual.

5

2016 PBMAS Manual, page 10.

6

2016 PBMAS Manual, page 64.
Page 3 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

particular indicator, from TEA. Consequently, OSEP concludes that TEA’s use of the 8.5 percent 

indicator resulted in a decline in the State’s overall special education identification rate from 11.6

percent in 2004 to 8.6 percent in 2016.7Thus, TEA’s use of the 8.5 percent indicator contributed 

to a statewide pattern of practices that demonstrate that TEA did not ensure that all ISDs in the 

State properly identified, located, and evaluated all children with disabilities who were in need of 

special education and related services, as required by 34 CFR §300.111, and consequently, failed 

to make FAPE available to all eligible children with disabilities residing in the State, as required 

by 34 CFR §300.101.

Actions Taken by ISDs to Reduce the Special Education Identification Rate

Through document review and the monitoring visit, OSEP staff examined ISD-level improvement 

planning documents and interviewed ISD staff. OSEP learned that ISDs often analyzed trend data 

based on the 8.5 percent indicator and, in some cases, included specific actions that the ISD would 

take to decrease the percentage of children in the ISD identified as eligible for special education 

and related services under the IDEA. This raised questions because in these ISDs OSEP did not 

find evidence to indicate that struggling learners had either been inappropriately referred or found 

eligible for special education and related services. Reductions in the percentage of children found 

eligible to receive special education and related services would not violate the IDEA if every child

suspected of having a disability was properly identified, located, and evaluated in accordance with 

34 CFR §300.111. However, noncompliance with the IDEA child find and FAPE requirements 

occurred to the extent that ISD efforts to decrease the percentage of children who were eligible for 

special education and related services under the IDEA caused delays or denials of evaluations for 

special education and related services for children who were suspected of having a disability and 

needing special education and related services. As explained more fully below, these actions 

demonstrate that TEA’s use of the 8.5 percent indicator operated as an incentive for ISDs to not 

properly implement the IDEA’s child find requirement, and therefore resulted in actions that 

violated those requirements. The following examples illustrate ISD actions to reduce the 

percentage of children identified for special education and related services. 

 One ISD’s 2004–05 and 2005–06 “PBMAS Sped Continuous Improvement Plan” included 

that the ISD planned to reduce the percentage of children receiving special education 

services. Its “Measurable Evidence of Change” indicated that district data would reflect a 

decrease in the percentage of children receiving special education services. Among other 

strategies, the ISD’s plan stated that it would create this change through the use of 

differentiated instruction, related aids and services in accordance with Section 504, and 

central office review of all requests to initiate referrals for special education evaluation. 

Additionally, the ISD’s 2006–07 Continuous Improvement Plan stated that the ISD 

planned to “reduce the percentage of children receiving special education services” and 

would provide evidence of the change through district data that would reflect a decrease in 

the percentage of children receiving special education services. Further, the ISD’s 2011–

12 District Improvement Plan explained that it would “continue developing and 

implementing a new Child Study System” and that the evidence of impact would be “fewer 

referrals for special education evaluation and decreased SPED representation.” In this 

plan, the ISD reported it would “contract with specialists to review and make 

 

7

See data reported in the 2006 and 2016 PBMAS State Reports, available at 

http://tea.texas.gov/pbm/stateReports.aspx.
Page 4 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

recommendations for evaluation reports of students identified with emotional disturbance, 

other health impairment, intellectual disability and autism” and “(e)xpand evaluation staff 

peer review using above recommendations.” The 2011–12 District Improvement Plan 

specified that the ultimate goal of these activities was “decreased SPED representation.” 

In a data review, OSEP staff found that this ISD’s special education identification dropped 

from 12.5 percent in 2005 to a low of 9.8 percent in 2012.8

 In another ISD, the superintendent reported in an interview with OSEP staff that he takes

steps to reduce special education identification, explaining that he uses data to monitor the 

number of children in special education and then he “leans on the administrators” if the 

numbers are too high because the school board “leans on him.” A TEA program 

monitoring report from 2006–07 also acknowledged that this ISD took actions to reduce 

the number of children identified for special education, and stated “...the LEA is taking 

action to reduce the number of students being referred for special education services and 

ultimately reduce the number of students who require special education services.” 

Furthermore, in a data review, OSEP staff found that the percentage of children enrolled in 

special education and related services in this ISD dropped from 12.5 percent in 2005 to 7.8

percent in 2016.

 In the 2009–10 school year, another ISD’s corrective action plan (CAP), created and 

implemented because the ISD exceeded the 8.5 percent identification rate, indicated that 

the ISD would “decrease the percentage of enrolled students receiving SPED (special 

education) services in order to meet the state average” and specifically included that it 

would work towards decreasing the “special education population” by 4 to 6 percent.

OSEP staff determined through a data review that the percentage of children identified for 

special education in this ISD dropped from 15.3 percent in 2005 to 12.2 percent in 2016. 

However, the ISD’s data dropped more significantly in the years directly after the CAP. 

For instance, the rate was 11.7 percent in 2010, 10.6 percent in 2011, and 10 percent in 

both 2012 and 2013 before beginning to increase to the 2016 rate.

II. TEA’s Failure to Ensure That ISDs Properly Implement the IDEA Child Find 

Requirements

Under 20 U.S.C. 1412(a)(3) and 34 CFR §300.111, as a condition of receiving assistance under 

Part B of the IDEA, each State must have in effect policies and procedures to ensure that (i) all 

children with disabilities in the State, including children with disabilities who are homeless or 

wards of the State, and children with disabilities attending private schools, regardless of the 

severity of their disability, who are in need of special education and related services, are identified, 

located, and evaluated; and (ii) a practical method is developed and implemented to determine 

which children are currently receiving needed special education and related services. Under 34 

CFR §300.8, a child must meet a two-prong test to meet the IDEA definition of “child with a 

disability”: (1) have one of the specified impairments (disabilities); and (2) because of the 

impairment, need special education and related services. The IDEA does not limit or restrict the 

number of children who can be identified as “children with disabilities,” provided that the child 

meets the IDEA’s definition of “child with a disability.” Further, States must have in effect 

policies and procedures to ensure that FAPE is made available to all children with disabilities 

residing in the State in the State’s mandated age range, which in Texas is ages 3 through 21.

 

8

2016 data demonstrate that this ISD’s percentage has increased to 10 percent.
Page 5 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

20 U.S.C. 1412(a)(1) and 34 CFR §300.101. FAPE, among other things, includes the provision of 

special education and related services at no cost to parents in conformity with an individualized 

education program (IEP) that meets applicable IDEA requirements. 34 CFR §300.17. Local 

educational agencies (LEAs), in providing for the education of children with disabilities within 

their jurisdiction, must have policies, procedures, and programs in effect that are consistent with 

the State’s policies and procedures as a condition of receiving a subgrant of IDEA funds from the 

State. 34 CFR §§300.200 through 300.201.

Under the IDEA, the State must have a general supervision system that ensures that 

noncompliance with IDEA requirements is identified and corrected in a timely manner. Section 

612(a)(11) of the IDEA and 34 CFR §300.149 require States to ensure that the requirements of 

Part B of the IDEA are carried out and that each educational program for children with disabilities 

administered within the State is under the general supervision of individuals responsible for 

educational programs for children with disabilities in the State educational agency (SEA) and 

meets the educational standards of the SEA, including the requirements of Part B of the IDEA.

Section 616(a)(1)(C) of the IDEA and 34 CFR §300.600 require States to monitor implementation 

of Part B by LEAs. The State must have in effect policies and procedures to ensure that it 

complies with the monitoring and enforcement requirements in 34 CFR §§300.149, 300.600 

through 300.602 and 300.606 through 300.608. 20 U.S.C. 1232d(b)(3)(A). In exercising its 

monitoring responsibilities, the State must ensure that when it identifies noncompliance with 

requirements of Part B by LEAs, the noncompliance is corrected as soon as possible, and in no 

case later than one year after the State’s identification of the noncompliance. 34 CFR §300.600(e)

and 20 U.S.C. 1232d(b)(3)(E). Information that OSEP gathered through the monitoring visit, 

listening sessions, and comments to the OSEP blog demonstrates that TEA did not ensure that all 

ISDs in the State properly identified, located, and evaluated all children with disabilities residing 

in the State who were suspected of having a disability and being in need of special education and 

related services, as required by 34 CFR §300.111. Because of TEA’s failure to exercise its 

general supervisory responsibility to identify and correct noncompliance related to ISDs’ 

implementation of child find requirements, the State is also unable to ensure that FAPE has been 

made available to all eligible children with disabilities residing in the State in accordance with 34 

CFR §300.101.

A. Implementation of Response to Intervention (RTI) and Special Education Referral

Procedures

Background

TEA and ISDs within Texas must ensure that the use of an RTI strategy does not result in the 

delay or denial of evaluations for children suspected of having a disability who need special 

education and related services.

9

 The IDEA regulations in 34 CFR §300.307 require States to 

allow, as part of their criteria for determining whether a child has a specific learning disability 

(SLD), the use of a process based on the child’s response to scientific, research-based intervention. 

Although the regulations specifically address the use of RTI for determining if a child has an SLD, 

information obtained through RTI strategies may also be used as a component of evaluations for 

children suspected of having other disabilities, if appropriate. However, RTI is only one 

 

9

See Memorandum to State Directors of Special Educ., https://sites.ed.gov/idea/idea-files/osep-memo-11-07-

response-to-intervention-rti-memo/ (OSEP Memorandum 11-07, 01-21-11). 
Page 6 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

component of an individual evaluation under the IDEA, and does not replace the need for a 

comprehensive evaluation of a child whom the LEA suspects has a disability and needs special 

education and related services. 34 CFR §300.304(b). 

Under 34 CFR §300.301(b), consistent with applicable parent consent requirements in 34 CFR 

§300.300(a), a parent or LEA may request an initial evaluation to determine if the child is a child 

with a disability. Under 34 CFR §300.309(c)(1), the LEA must promptly request parental consent 

to evaluate a child for special education and related services, if, prior to a referral, the child has not 

made adequate progress after an appropriate period of time when provided with RTI, and 

whenever a child is referred for an evaluation. In accordance with 34 CFR §§300.309(c) and 

300.311(a)(7), at any time during the RTI process, a parent may request an initial evaluation for 

the purpose of determining a child’s eligibility for special education and related services. If, 

however, the LEA does not suspect the child has a disability, and denies the request for an 

evaluation, the LEA must provide written notice to the parents explaining, among other things, 

why the public agency is refusing to conduct an initial evaluation, the information that was used as 

the basis for this decision, and that parents have protection under the procedural safeguards. 34 

CFR §300.503(a) and (b). 

OSEP reviewed written guidance that TEA provides to its ISDs on the use of RTI and the process 

for referring a child for special education under the IDEA, which OSEP determined to be 

consistent with the IDEA. For example, the April 2016 version of TEA’s document, The Parents 

Guide to the Admission, Review, and Dismissal Process, which is provided to parents prior to an 

initial admission, review, and dismissal (ARD) meeting (the first meeting of an IEP Team to 

discuss a child’s need for special education under the IDEA), provides clarity on special education 

services in the State.

10

 This document also provides background information about RTI, 

explaining:

“A child does not need to advance through each tier of the RTI system before a referral for 

special education is made. Once it is apparent that general education interventions are not 

sufficient, school personnel should suspect that the child has a disability and should initiate 

a referral. Parents can also request a referral at any time regardless of whether the child is 

receiving interventions through an RTI system.”

Additionally, TEA’s website contains a page dedicated to RTI which provides additional links to 

resources.

11

 This page similarly notes:

“Students who may have a disability should be referred for a full and individual evaluation 

for special education services. States and LEAs have an obligation and requirement under 

federal law (34 CFR §300.111 Child Find) to see that evaluations of children suspected of 

having a disability are not delayed or denied because of schools using an RTI strategy.”

Implementation of RTI in Texas

OSEP asked targeted questions to district and school staff about the implementation of RTI during 

the monitoring visit because of the volume and severity of the allegations parents raised through 

the December 2016 listening sessions and the OSEP blog. Across the State, parents described 

 

10 See https://framework.esc18.net/Documents/ARD_Guide_ENG.pdf (available in English and Spanish).

11 See http://tea.texas.gov/index2.aspx?id=2147500224.
Page 7 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

processes by which the implementation of RTI either delayed or denied their children from 

receiving timely evaluations for special education and related services under the IDEA. For 

example, one parent wrote about district employees having been instructed to continue RTI for 

years prior to referring a student suspected of having a disability for an initial special education 

evaluation. Another parent described a situation in which the family moved from another State 

into Texas and provided former evaluation data, yet the referral for an initial evaluation in Texas 

was delayed for three and a half years so that the child could receive ten minutes of RTI 

intervention each day. The same parent noted that once the child was evaluated for special 

education and related services under the IDEA, the child was found to be eligible.

Through document review, listening sessions, and interviews during the monitoring visit, OSEP 

found that, consistent with IDEA requirements, when a teacher suspected that a child needed

additional academic support to succeed in the general education classroom, the teacher would 

generally first use RTI to provide tiered levels of intervention as part of general education 

instruction before referring the child for evaluation under the IDEA. However, the information 

OSEP collected and analyzed also revealed a general understanding among teachers and parents in 

Texas that completing all tiers of RTI was required prior to a referral for special education, 

particularly for children with SLD, but this practice cannot be used to delay or deny a timely 

evaluation of a child who is suspected of having a disability and in need of special education and 

related services. Allowing a child who is not making adequate progress to remain in RTI for an 

unreasonable or excessive amount of time, if the LEA suspects the child has a disability and needs 

special education and related services, is inconsistent with the IDEA child find requirements 

because it would result in an evaluation that is inappropriately delayed. 34 CFR §300.111.

Across the twelve ISDs that OSEP visited, teachers could not always define what level of progress 

would be sufficient for a child to stop receiving interventions provided through an elevated tier of 

RTI. In different schools within the same ISD and across different ISDs, staff expressed a lack of 

clarity as to which children enter tiers two or three, how long children are served in each tier, and

when children move from one tier to the next within the RTI framework. School staff often 

explained that a child moves beyond tier one when the child does not meet the teacher’s 

established academic benchmarks. Once the child receives services under tier two of RTI, some 

school staff noted that the child’s progress is generally monitored against individual RTI goals. 

Teachers indicated that a child moves to an elevated tier of intervention (tier three, or in one 

instance, tier four) when the child is not making enough progress against such individual RTI

goals. Through interviews, school staff explained that if a child demonstrates progress through 

RTI interventions, the child may either continue to receive RTI interventions, sometimes receiving 

a new intervention within the same tier, or return to general classroom instruction. While ISD’s 

certainly have flexibility in implementing RTI, the lack of clarity in LEA- and school-level 

implementation contributed to the delay or denial in the identification and evaluation of children 

suspected of having disabilities and needing special education and related services.

School staff did point out during interviews that there are exceptional cases in which there are 

clear reasons to suspect that a child may have a disability and need special education and related 

services under the IDEA. In such cases, staff explained that the child would be referred for special 

education without first being provided RTI interventions. Generally, staff cited “visible 

disabilities” such as if a child struggles with speech, or enters the school with blindness or with a 

traumatic brain injury. In some cases, staff cited reasons to suspect that a child may have a 
Page 8 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

disability and need special education and related services based on the child’s classroom behavior

that also led to a referral without first attempting RTI. 

Parent and Teacher Referrals for Special Education Evaluation During the RTI Process

School and ISD staff interviewed during the monitoring visit indicated that during the RTI 

process, if a parent requests an initial evaluation to determine if the child is eligible for special 

education and related services, the school refers the child for an evaluation. However, this is 

inconsistent with information OSEP learned through parents in Texas, whose comments indicate 

they have encountered difficulty in obtaining an initial evaluation under the IDEA when their child 

was participating in the RTI process, even if they had contacted the school to request a referral for 

an initial evaluation. With regard to teacher referrals, interviews that OSEP conducted with school 

and ISD staff revealed that although the staff referral will be considered, the school may deny the 

initial evaluation if the child has not completed all tiers of the RTI process, even if there is reason 

to suspect the child has a disability. OSEP also identified instances in which staff members 

described suspecting that a child may have a disability and not making a referral for an evaluation 

under the IDEA, or delaying the referral, because the child was already receiving services through 

RTI. 

B. Section 504 Related Aids and Services

Section 504 of the Rehabilitation Act of 1973 (Section 504) is the Federal law that prohibits 

discrimination on the basis of disability by recipients of Federal financial assistance. 29 U.S.C. 

794 and 34 CFR Part 104. The Department’s Office for Civil Rights (OCR) enforces Section 504 

in elementary and secondary schools, and in postsecondary institutions, that receive Federal 

financial assistance. Section 504 regulations require a recipient that operates a public elementary 

or secondary education program or activity to provide FAPE to elementary and secondary school 

children with disabilities in its jurisdiction, regardless of the nature or severity of the student’s 

disability. 34 CFR §104.33(a). FAPE under Section 504 includes the provision of regular or 

special education and related aids and services that are designed to meet the individual educational 

needs of children with disabilities as adequately as the needs of nondisabled children are met, and 

are based on adherence to procedures that satisfy requirements governing educational setting, 

evaluation and placement, and procedural safeguards. 34 CFR §§104.33-104.36. Implementation 

of an IEP developed in accordance with the IDEA is one means of meeting the Section 504 FAPE 

standard. 34 CFR §104.33(b)(2).

OSEP administers the IDEA, and has no enforcement responsibility for Section 504. OSEP is 

therefore not authorized to monitor the provision of Section 504 services in Texas. However, with 

regard to the IDEA, OSEP determined that some children in Texas who were suspected of having 

a disability and needing special education and related services under the IDEA were not referred 

for an evaluation under the IDEA, because they instead received services under Section 504.

One parent who wrote on the OSEP blog described a situation in which she received notification 

that her child was being served with tier two interventions through RTI, yet she believed more was 

needed and requested an evaluation for special education under the IDEA. The school informed 

her that the RTI process needed to continue and they would not evaluate, nor would the child

advance to the next tier of RTI, since he was making progress in his current tier. The parent 

described a nine-month process in which she took her child for a medical evaluation and received 
Page 9 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

a diagnosis of dyslexia and ADHD. The child was eventually served through Section 504. Noting 

that her child was still making slow progress, she explained she was promised a special education 

evaluation under the IDEA the next year, received one, and the child was identified to be in need 

of special education and related services under the IDEA. This parent’s story is just one example 

of the stories shared with OSEP about delays in trying to secure a special education evaluation 

when Section 504 related aids and services were already being provided. Scenarios such as this 

led OSEP to ask questions during the monitoring visit about the implementation of Section 504 in 

relation to the IDEA.

In interviews with OSEP during the monitoring visit, school-based, district-level, and TEA staff 

explained that it was their understanding that because coverage under Section 504 has expanded,

more children can now be considered to have a disability and receive services under Section 504 

than in the past.

12 Data demonstrate that a growing number of children with disabilities in Texas 

received related aids and services under Section 504 in order to access the general education 

curriculum. According to estimates from the Department’s Civil Rights Data Collection, 55,434 

children in Texas received Section 504 related aids and services in 2004, and that number grew to 

132,078 by the 2011–12 school year.13 This data, taken into consideration along with the evidence 

collected during the monitoring visit, raised concerns about the interaction between Section 504 

and the IDEA, and the possibility that Section 504 related aids and services were used to delay or 

deny the identification and evaluation of children suspected of having a disability and needing 

special education and related services under the IDEA.

In interviews, school staff informed OSEP that there are situations where children with disabilities 

are not referred for an evaluation under the IDEA because the child is receiving related aids and 

services under Section 504, even though there may be reason to suspect that the child has a 

disability under the IDEA and needs special education and related services under that statute. 

Through input from parents and groups in Texas, as well as interviews during the monitoring visit, 

OSEP staff learned that while a growing number of children with disabilities receive related aids 

and services under Section 504—even when a teacher suspects that one of these children has a 

disability and needs special education and related services under the IDEA—the child may not be

referred for an initial evaluation under the IDEA in a timely manner if the child is receiving 

services under Section 504. These practices create an unnecessary delay in the identification of 

children and in the provision of special education services under the IDEA. In cases where a child

receiving services under Section 504 is suspected of having a disability and needing special 

education and related services under IDEA, but is not referred at all for an IDEA evaluation, this 

also would constitute a denial of FAPE under the IDEA.

In at least one ISD, when a child was identified as a child with a disability who could be served 

under Section 504 or the IDEA, the child received an initial evaluation to determine whether 

services under the IDEA were needed in addition to the related aids and services made available to 

 

12 The Americans with Disabilities Act (ADA) Amendments Act of 2008, Pub. L. No. 110-325 (Amendments Act) 

amended 42 U.S.C. 12102 to clarify the definition of disability in the ADA and Section 504. The Amendments Act 

explains that “The definition of disability in this chapter shall be construed in favor of broad coverage of 

individuals...” See 42 U.S.C. 12102(4)(A). The Amendments Act also included a conforming amendment to the 

Rehabilitation Act of 1973 that affects the meaning of disability in Section 504. See 29 U.S.C. 705(20)(B). Children 

with disabilities may be served under both the IDEA and Section 504.

13 Data compiled through the “State and National Estimations” tool, available at: 

http://ocrdata.ed.gov/StateNationalEstimations.
Page 10 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

the child under Section 504. However, comments provided to OSEP with regard to general ISD 

practices throughout Texas indicated that this is not the general practice in the State. Some school 

staff differentiated between Section 504 and the IDEA, indicating that if a child demonstrates a 

need for adapted academic goals or instructional programming, such a need would indicate a 

reason to suspect a disability, and that the child should be referred for an IDEA evaluation. 

Teachers in one ISD, and district staff in another ISD, informed OSEP that, in some instances, a 

child suspected of having a disability and needing special education and related services can be 

served under Section 504 for about a year before a recommendation for an IDEA evaluation is 

considered. 

Through monitoring visit interviews, OSEP learned that parents, teachers, and other school staff 

have an inconsistent understanding of when an evaluation under the IDEA may be warranted for a 

student served under Section 504. While some teachers noted that such decisions are 

individualized based on the needs of each child, it was unclear what criteria teachers use to inform 

such decisions. Information from parents collected during the listening sessions conducted prior 

to on-site monitoring also indicated parents’ frustration with not understanding the differences 

between Section 504 and the IDEA. 

C. Implementation of State’s Dyslexia Program 

Dyslexia is a condition that could qualify a child as a child with a specific learning disability under 

the IDEA. Under the IDEA and its implementing regulations, “specific learning disability” is 

defined, in part, as “a disorder in one or more of the basic psychological processes involved in 

understanding or in using language, spoken or written, that may manifest itself in the imperfect 

ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including 

conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and 

developmental aphasia.” 20 U.S.C. §1401(30) and 34 CFR §300.8(c)(10). That is, where a child 

is identified with dyslexia and needs special education and related services under the IDEA, that 

child must be evaluated under the IDEA, subject to parental consent. Moreover, regardless of 

whether a child has dyslexia or any other condition explicitly included in this definition of 

“specific learning disability,” where the child is suspected to need special education and related 

services, the LEA must conduct an evaluation in accordance with 34 CFR §§300.304-300.311 to 

determine whether that child meets the criteria for specific learning disability or any of the other 

disabilities listed in 34 CFR §300.8.14 

During the December 2016 listening sessions and on the OSEP blog, many situations were 

described in which individual students with dyslexia received services under Section 504 through 

the State’s dyslexia program, rather than through special education and related services under the

IDEA. In some cases, this may have been appropriate. It is certainly permissible to provide 

services to children with dyslexia under Section 504. However, at times, parents described 

situations in which the parent believed that the student had a disability that required special 

education and related services, and requested an evaluation for services, yet the student was not 

referred for an evaluation under the IDEA. Some situations were described in which dyslexia 

assessments didn’t begin until a certain grade (for example, an ISD that didn’t begin testing until 

second grade). Statements such as these led OSEP to collect additional data through the 

 

14 See OSEP Dear Colleague Letter on Dyslexia (2015), available at: 

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-dyslexia-10-2015.pdf.
Page 11 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

monitoring visit to determine if some students with dyslexia may have had delayed evaluations or 

have been denied evaluations for special education and related services, even though school staff 

had suspected that the student may need special education and related services under the IDEA.

OSEP did not collect district-level data regarding the quality of services provided through the 

State dyslexia program, or data and information to determine whether the State dyslexia program 

provides special education and related services to individual children as defined by the IDEA. 

However, OSEP asked questions in interviews during the monitoring visit to determine whether 

there are some children who may be suspected of having a disability and needing special 

education and related services under the IDEA who may not receive such services because they 

are instead provided services under Section 504 through the State dyslexia program. 

Through interviews during the monitoring visit, school and ISD staff explained to OSEP that 

dyslexia services in Texas are governed by the State’s Dyslexia Handbook. OSEP’s 

understanding of the Dyslexia Handbook—clarified through conversations with teachers and other

staff across the State—is that a child must not only have difficulties related to reading (which 

would indicate a potential need for dyslexia services in Texas), but also must present a second,

potentially disabling condition in order for school staff to refer the child for an evaluation under 

the IDEA. This practice violates IDEA child find requirements to the extent that there are students 

in Texas whose only disability is dyslexia, who are suspected to need special education and related 

services under the IDEA because of dyslexia, and yet are not referred for an evaluation for special 

education and related services. 

TEA reported to OSEP through an interview during the monitoring visit that approximately 

141,000 children in the State receive services for dyslexia, and that roughly 20 percent of those 

children are identified in the State’s data system as receiving special education under the IDEA. 

Accordingly, roughly 80 percent of children with dyslexia receive services through Section 504. 

Through interviews with ISD staff during the monitoring visit and input from the OSEP blog and 

from parents through the listening sessions, OSEP also learned that practices for referring children

with dyslexia for an initial evaluation for special education and related services under the IDEA 

are inconsistent across the State. For example, in one ISD, staff indicated that in cases where a 

child with dyslexia does not qualify for special education and related services under the IDEA, the 

ISD may provide the child with services through the State dyslexia program under Section 504. 

Yet in another ISD, a staff member indicated that a child can qualify for special education and 

related services under the IDEA for dyslexia only when there is another disability present. Staff in 

another ISD noted that a child can be dually identified as having dyslexia under Section 504 and 

the IDEA, and therefore could be served under both Section 504 and the IDEA, however the child

would only receive services through the State’s dyslexia program rather than any additional 

services through the IDEA. 

ISD staff also expressed concerns about evaluation procedures for children with dyslexia. 

Consistent with policies established in the Dyslexia Handbook, staff in multiple ISDs indicated

that initial evaluations for special education and related services under the IDEA are not conducted 

for children with dyslexia; rather, screenings are used to determine which children will benefit 

from the dyslexia program provided through Section 504. During one phone call with multiple 

stakeholders throughout the State, participants reported that one ISD has a common practice of 

initially evaluating children with dyslexia under both the IDEA and Section 504; however, upon 

hearing this statement, staff from other ISDs responded that this was not a common practice 
Page 12 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

throughout the State and not the way that children were referred and evaluated within their 

respective ISDs.

Thus, the inconsistent interpretation and application of policies and procedures associated with 

referring a student with dyslexia for special education and related services at the ISD and school 

levels demonstrates that the State is not meeting its general supervisory responsibility to ensure 

that ISDs in the State are properly implementing the IDEA child find requirements in accordance 

with 34 CFR §§300.111 and 300.201. That is, if a student is identified with dyslexia, and needs

special education and related services under the IDEA, a request for an IDEA evaluation must be 

initiated. To the extent that local practices have resulted in delays and/or denials of IDEA 

evaluations for students suspected of having dyslexia and needing special education and related 

services under the IDEA, the State has not ensured that its ISDs have made FAPE available to all 

eligible children with disabilities, as required by 34 CFR §§300.101 and 300.201.

D. Lack of Understanding of the Difference Between the IDEA and Programs for Struggling 

Learners

Given the confusion about the range of services for struggling learners, including RTI, OSEP’s 

monitoring data revealed that, in many instances, children who should have been referred for an 

initial evaluation under the IDEA were instead provided other services for struggling learners for 

extended periods of time, even after there was continued reason to suspect that the student may 

have a disability and be in need of special education and related services. This resulted in either a 

delay or complete denial of these students’ evaluations under the IDEA. It was not clear that 

teachers in some ISDs where OSEP conducted interviews understood the extent to which 

additional supports or services may be available and provided to an individual child through the 

provision of special education and related services under the IDEA, rather than through supports 

provided in RTI, related aids and services under Section 504, or other forms of specialized 

services provided outside of the IDEA. Generally, interview data indicated that staff in many 

schools and ISDs appeared to view special education under the IDEA as a “last resort,” which 

should be avoided whenever possible to ensure that the child is instructed in a general education 

environment, even though children with disabilities can and do receive special education and 

related services in the general education environment. 

Similar to teachers, parents who do not have adequate information about the array of services to 

support struggling learners are not always able to take the proper steps to request services for their 

children. Comments that OSEP received from parents indicated that parents did not have a clear 

understanding about the process for requesting an initial evaluation under the IDEA, as well as the 

differences in the services provided through RTI, Section 504, and the IDEA. In some cases, 

parents believed they were requesting an evaluation for special education under the IDEA, but 

instead were provided an evaluation of the child’s progress with RTI interventions. The data 

OSEP collected reveal that such confusion resulted in delays in children being referred for an 

initial evaluation under the IDEA due to the fact that parents may have not always understood how 

to properly request a referral for special education and related services. 

Conclusion 

Through interviews with TEA officials and ISD and school staff, document reviews, listening

sessions with parents, comments on an OSEP blog, and review of TEA’s policies and procedures 
Page 13 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

and guidance documents, OSEP has determined that TEA failed to ensure that its ISDs properly 

implemented IDEA child find requirements, and consequently, failed to make FAPE available to 

all eligible children with disabilities residing in the State, as required by the IDEA. This failure 

resulted in improper reductions, over a period of years, in the number of children identified as 

having disabilities and needing special education and related services under the IDEA. 

The data OSEP collected indicate TEA’s 8.5 percent special education representation indicator

resulted in a decline in the State’s overall special education identification rate. Although State law 

in Texas now prohibits the use of a special education representation indicator, OSEP also 

identified a number of practices statewide that contributed to the decline in the number of children

with disabilities eligible for special education and related services under the IDEA. These 

practices demonstrate that TEA has failed to ensure that ISDs have properly implemented the 

IDEA child find requirements. These practices included using RTI strategies to delay or deny a 

timely evaluation for children suspected of having a disability and needing special education and 

related services; the increased use of Section 504 related aids and services as a means of providing 

struggling learners with additional services and supports, without referring children for an 

evaluation under the IDEA when those children were suspected of needing special education and 

related services under the IDEA; and the failure to refer students with dyslexia who are suspected 

of needing special education and related services for an evaluation under the IDEA. 

Implementation of these programs and practices resulted either in (1) a delay in referring children 

suspected of having a disability and needing special education and related services for an 

evaluation under the IDEA, or (2) a failure to refer children suspected of having a disability and 

needing special education and related services for an evaluation under the IDEA. 

III. Findings of Noncompliance

1. TEA failed to ensure that all children with disabilities residing in the State who are in need 

of special education and related services were identified, located, and evaluated, regardless 

of the severity of their disability, as required by IDEA section 612(a)(3) and its 

implementing regulation at 34 CFR §300.111. 

2. TEA failed to ensure that FAPE was made available to all children with disabilities 

residing in the State in Texas’s mandated age ranges (ages 3 through 21), as required by 

IDEA section 612(a)(1) and its implementing regulation at 34 CFR §300.101. 

3. TEA failed to fulfill its general supervisory and monitoring responsibilities as required by 

IDEA sections 612(a)(11) and 616(a)(1)(C), and their implementing regulations at 34 CFR 

§§300.149 and 300.600, along with 20 U.S.C. 1232d(b)(3)(A), to ensure that ISDs 

throughout the State properly implemented the IDEA child find and FAPE requirements.

IV. State Laws

Subsequent to the monitoring visit, the Texas legislature passed, and Governor Abbott signed, two 

State laws related to issues included in this report that became effective immediately. Texas S.B. 

160 prohibits the use of a performance indicator based on the number or percentage of children 

who receive special education services. Texas S.B. 1153 requires each school district to notify 

parents if their child receives assistance through the use of intervention strategies. An 

“intervention strategy” is defined in the law as “a strategy in a multi-tiered system of supports that 

is above the level of intervention generally used in that system with all children.” RTI is included 

within this term. The notice parents receive must contain a description of the assistance being 
Page 14 – Enclosure to Texas Part B 2017 Monitoring Visit Letter 

provided, and any intervention strategies employed, as well as an estimate of how long the child 

will receive assistance through the use of intervention strategies. Texas S.B. 1153 also gives 

parents the right, as part of their entitlement to all written records, to access to any records relating 

to assistance provided or any information collected regarding any intervention strategies.

V. Corrective Action/Next Steps

Within a timeframe agreed to by OSEP and TEA upon the issuance of this letter, the State must 

provide OSEP with each of the following.

1. Documentation that the State’s system of general supervision requires that each ISD 

identifies, locates, and evaluates all children suspected of having a disability who need 

special education and related services, in accordance with section 612(a)(3) of the IDEA 

and its implementing regulation at 34 CFR §300.111, and makes FAPE available to all 

eligible children with disabilities in accordance with section 612(a)(1) of the IDEA and its 

implementing regulation at 34 CFR §300.101.

2. A plan and timeline by which TEA will ensure that each ISD will (i) identify, locate, and 

evaluate children enrolled in the ISD who should have been referred for an initial 

evaluation under the IDEA, and (ii) require IEP Teams to consider, on an individual basis, 

whether additional services are needed for children previously suspected of having a 

disability who should have been referred for an initial evaluation and were later found 

eligible for special education and related services under the IDEA, taking into 

consideration supports and services previously provided to the child. 

3. A plan and timeline by which TEA will provide guidance to ISD staff in the State, 

including all general and special education teachers, necessary to ensure that ISDs (i) 

ensure that supports provided to struggling learners in the general education environment

through RTI, Section 504, and the State’s dyslexia program are not used to delay or deny a 

child’s right to an initial evaluation for special education and related services under the 

IDEA; (ii) are provided information to share with the parents of children suspected of 

having a disability that describes the differences between RTI, the State dyslexia program, 

Section 504, and the IDEA, including how and when school staff and parents of children 

suspected of having a disability may request interventions and/or services under these 

programs; and (iii) disseminate such information to staff and the parents of children 

suspected of having a disability enrolled in the ISD’s schools, consistent with 34 CFR 

§300.503(c) .

4. A plan and timeline by which TEA will monitor ISDs’ implementation of the IDEA 

requirements described above when struggling learners suspected of having a disability 

and needing special education and related services under the IDEA are receiving services 

and supports through RTI, Section 504, and the State’s dyslexia program.