Category Archives: gatekeeping

Gatekeeping: Texas Style

In a continuation of our series on special education gatekeeping (Withholding Needed Services and Response to Intervention), we have an amazing story to tell about how the state of Texas kept a quarter of a million children with disabilities from receiving an appropriate education. This story actually deserves its own category, as Texas has gone far beyond the more prosaic gatekeeping tactics we have written about in the past.

What Texas did was to place an arbitrary limit on the number of students for whom the state would provide special education services. Without any legal or other rational basis, a small group of unelected bureaucrats decided to cap the number of students it would enroll in special education at 8.5 percent of the total student population. This was despite the fact that the national average of students with qualifying disabilities is 13 percent. Given the total number of students in Texas schools since the cap was initiated, this amounts to approximately 250,000 students that the state prevented from receiving the special education services that they needed and to which they were entitled.

State Mandated Reductions in Special Education

In a blistering series of articles published in the Houston Chronicle, investigative reporter Brian M. Rosenthal details how the Texas Education Agency (TEA), working virtually in secret, decided that it would limit the number of students with disabilities it would serve under the federal Individuals with Disabilities Education Act (IDEA). This is a clear violation of the law, which states that services should be given based on need, and not on any other criteria.

Although the enrollment limit was couched in the language of a “suggestion,” local special education directors knew what was expected of them. School districts that enrolled more students in special education than the prescribed 8.5 percent were subject to a variety of penalties that ranged from reprimands and fines to having the district taken over and run by state regulators. One director quoted in the article, flatly stated, “TEA required us to do this, there was no wiggle room.

How it Happened

The story begins in 2004, when four members of the TEA decided to place an 8.5 percent benchmark on the number of students who could receive special education services in the state. At the time, special education enrollment in Texas was 12.1 percent of the total student population, close to the national average of 13 percent. One of the four TEA members actually admitted under questioning that the 8.5 percent figure was not supported either by law or any research.

In addition, the TEA did not consult the federal government, the Texas legislature, or even the State Board of Education in reaching its decision. It also never publicly announced or explained its decision. In fact, when asked by some school staff members, the TEA falsely told them that limiting special education enrollment was “federally mandated.” For most school districts, this policy meant purging the rolls of students already on IEPs and discouraging new students from entering special education.

The subterfuge had a very self-serving motive. The Chronicle article estimates that reducing the enrollment in special education saved the state “billions” of dollars. Unfortunately, the collateral damage was that hundreds of thousands of students who should have been eligible were denied special education services.

Texas Tactics

The tactics Texas schools used to enforce the 8.5 percent mandate are used in many other states to prevent eligible students from entering special education or receiving appropriate services. This is why parents need to be aware of the laws that protect their children from any school district that might try to use these tactics to avoid its obligation to provide an appropriate education.

In this and subsequent blog articles, we will review the gatekeeping tactics that the Houston Chronicle uncovered, beginning with the tactic of discouraging parents from seeking evaluations to determine special education eligibility. In later articles we will describe some of the other tactics used by Texas schools.

What Federal and Texas Laws Say

Under 20 U.S.C. § 1414 “Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements,” IDEA states that parents can request an evaluation in all areas of suspected disability to determine whether a child qualifies for special education. Parents can make this request at any time and the school must honor the request without placing any conditions on it.

The only requirement is that the request must be made in writing. Once the school receives a signed consent form from the parents, under federal law it has 60 days to perform all requested evaluations (Texas law specifies 45 school days). All evaluations are to be performed at no cost to the parents. The specific federal statute is: 20 U.S.C. § 1414(a)(1)(B). Texas special education law does not alter this requirement.

What Schools Told Parents Instead

Instead of following either state or federal law, the Chronicle reported that different Texas school districts told parents that:

  • they would have to pay for evaluations
  • there was a long waiting list
  • students could not be evaluated more than once every two years
  • there had to be at least three meetings with teachers before the school can perform an evaluation, or as a variation, a special committee must decide that an evaluation is warranted
  • a student’s IQ was too high for special education
  • dyslexia only qualified for section 504 services and not special education
  • there could be no referral to special education until the student tries Response to Intervention first
  • a private school would be better able to teach their child. (While this last point may be true, if a public school is unable to provide an appropriate education under IDEA, then the school district must pay for the outside placement.)

This is Why You Need to Know Your Rights

All these “tactics” used by Texas schools are contrary to the laws governing special education. Yet, most parents interviewed by the Houston Chronicle were unaware of the law’s requirements, and accepted the school’s explanations without question. This meant that their child never got evaluated for special education eligibility, or they endured long delays while their child fell further and further behind in academic and social skills. This is a tragic situation that can have long-lasting consequences. We wrote our book, Parents Have the Power to Make Special Education Work so that you can separate fact from fiction and to help you get your child the appropriate education he or she deserves.

Postscript

In May of 2017, the Texas state legislature passed a bill banning the practice of placing a cap on special education enrollment. This was 13 years after the Texas Education Agency began the practice.

Judith Canty Graves and Carson Graves

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Gatekeeping 101: Withholding Needed Services

mountain sky 4 textSchools sometimes rely on a parent being unaware of their child’s rights to deny services that might cost money or be inconvenient to provide, as illustrated by a case that occurred in 2013 in the city of Somerville, Massachusetts. A local newspaper article provided the details along with a number of compelling (and revealing) quotations from the parties involved.1 The issue was that a high school student in special education was denied the opportunity to participate in a summer soccer camp attended annually by members of his high school soccer team. The school district had decided that the student, who was an active member of the team, must have an aide accompany him to the camp to act as a chaperone. Every year, the school didn’t seem to be able to locate a suitable one.

Though the parents (and grandparents) had offered to accompany their son and act as a chaperone, the school refused to consider their offer, telling them that they were not qualified. The parents then offered to pay for an aide that the school approved, but the school would not discuss their offer with them. The result was that their son was not allowed to attend the camp with his teammates. Each year was the same story. The parents would call school officials, including the district’s director of special education, asking to arrange for their son to attend soccer camp, and each year no one from the school would return their calls.

Finally, the summer before their son’s senior year, not knowing what else to do, the parents contacted the city’s disability coordinator, a person who worked for the city and not for the school system. Within days of this contact, and to the complete surprise of the family, the school managed to find a suitable aide. The article quotes the district’s assistant superintendent as saying: “I think the school department has gone above and beyond, we’re really pleased to be able to send [the student to camp],” while adding that the school was not legally required to provide access to an extracurricular program.

The Legal Reality

Fortunately for all children in special education, the assistant superintendent does not get to decide what the law requires. Section 504 of the Rehabilitation Act of 1973 was explicitly written to protect individuals with disabilities from this sort of discrimination. One of the regulations authorized by this statute, 34 C.F.R. § 104.37, specifically refers to this situation: “No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.”

All students in special education who receive services under IDEA are automatically protected by Section 504. Had the parents known their rights about this basic protection, they would not have had to put up with years of frustration and gatekeeping by their school district. It is always possible that the assistant superintendent was speaking out of a combination of ignorance and hubris, but it is not possible to believe that the special education department was unaware of the school’s obligation to this student. In fact, the school has the responsibility to inform all parents with children in special education of their rights, including this one, in writing.2

A Final Thought

In addition to prohibiting discrimination against people with disabilities, Section 504 also contains a provision that permits the “prevailing party” in a lawsuit over a violation of the statute “to collect reasonable attorney’s fees as part of the cost of remediation.”3 We are sure that this possibility is one that the school district in question should devoutly hope the parents of the child described in the article do not pursue.

Judith Canty Graves and Carson Graves

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Notes:
1.
Family: Special Ed `Run-Around’ Nearly Kept Somerville Senior From Soccer Trip” By Dan Atkinson, Somerville Journal, August 22, 2013. (accessed 5 September 2013)
2. 20 U.S.C. § 1415 (d). The statute says, in part, that a copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents at least once a year. What is more, the notification should be written in the native language of the parents if necessary. In all cases the notification should be written in an easily understood manner. Model procedural safeguards form. (accessed 6 September 2013)
3. 29 U.S.C. § 794a (a)(1)

Gatekeeping 101: Response To Intervention

ocean 7 text

An article in a Massachusetts newspaper in the winter of 2013, titled: “[Superintendent] Looking to Curb Sped Referrals,”1 highlights a growing trend of school districts actively discouraging the referral of students for special education evaluations. The article quotes a local school district superintendent as calling special education referrals “a resource zapper,” and requesting that instead, parents ask their child’s classroom teacher to decide if any concerns they might have about possible disabilities are valid. If the teacher agrees with the parents, then the teacher can refer the parent’s concern to a panel of “teachers and special education staffers.” This panel then has the option to refer the child to a program commonly known as “Response to Intervention” or RTI. According to the superintendent, “[a]ll I’m asking is for parents to work closer with the classroom teacher and keep a dialogue open and wait for the teacher to go through the RTI process.”

To many parents, this may sound perfectly reasonable. Special education services cost money, so why shouldn’t the school district be able to decide what conditions to place on admission to it? The answer lies in the purpose for which RTI is being used and how it is implemented.

What is RTI?

RTI is loosely defined in the regulations that accompany the 2004 reauthorization of IDEA2 with the goal of screening all students early in their school career to identify any who are struggling and, through increasing levels of intervention, prevent the need for more costly special education services later. By applying the screening process universally, it represents an effort to make IDEA, which addresses the unique needs of individual students, more closely conform with No Child Left Behind (NCLB), which attempts to raise standards for all students uniformly. IDEA-04 “permits” (not “requires”) schools to employ “scientific, research-based” techniques to help struggling students discovered in the screening process.

These techniques are applied in increasing levels of support, known as “tiers.” The progress of each student is monitored; if the initial tier of intervention isn’t working, the student is then referred to the next, more intense, tier. IDEA doesn’t specify how many tiers a school must use (three tiers seem to be the most common), the criteria for deciding whether a tier is working or not, nor how long a student must stay in one tier before moving to another. All of these details are left to the individual states and school districts.

In other words, RTI is not the same as, nor a substitute for, special education. RTI does not provide for evaluations by qualified professionals to identify specific learning disabilities, and a student in RTI does not have an IEP to specify learning goals or the accommodations and modifications needed to achieve those goals. Although some schools may employ these techniques, there is no requirement to do so. Most important, there is no legal mandate for a school to provide agreed upon services, accommodations, or program modifications, as there is when a student is on an IEP. In fact, the US Department of Education makes it clear that a student in special education is also eligible to receive RTI services along with special education services.3 Schools, however, appear to regard RTI as a substitute for special education that is less involved, and of course, less expensive.

So, What’s the Problem?

Early screening of and intervention for all “at-risk” students regardless of the presence of a documented learning disability is a laudable and potentially cost effective way to improve public education. The problem arises when the reality doesn’t match the intention.

In the article mentioned above, the first thing to note is that the school isn’t screening all students as the RTI model is designed to do. The only students who are considered for the RTI program are those who are able to pass through at least three gates. First, the parents must express concerns about their child to the school. Next, the classroom teacher, who may not have any training in special education, must agree that the parent’s concerns are valid. Only then does a child reach gate number three, the panel of “teachers and special education staffers” who are the ones to decide if there is any need for services, all without any formal evaluation of the student for learning disabilities.

By contrast, IDEA has very specific criteria for determining eligibility for special education and who is qualified to make the determination.4 Once parents request an initial eligibility evaluation and give their written consent for the necessary testing, the school has 60 calendar days (by federal law, state laws may vary) to perform evaluations in all areas of suspected disabilities. These evaluations must be performed by qualified and knowledgeable professionals. There is no provision in IDEA for multiple layers of screening by people who may not have the training or qualifications to recognize or evaluate learning disabilities.

RTI as Gatekeeping

The inescapable conclusion is that the superintendent quoted in the article is attempting to use RTI in a manner for which it was not intended. Instead of an early screening tool for all students to identify the at-risk ones before they fall too far behind, he wants to use it as an alternative to performing special education evaluations only for those students whose parents have raised concerns and then are able to pass through two levels of “gatekeeping.” This circumvents IDEA’s mandate that schools perform evaluations in all areas of suspected disability by qualified and knowledgeable professionals.

What is surprising is how clearly the superintendent admits this. When he calls the law’s evaluation requirements “a resource zapper,” he really means that his problem is the budget, as these resources cost money. Rather than provide services according to need as the law requires, he is telling the community for which he serves as the head of public education that his goal is to protect the budget by not even attempting to identify the need, and therefore denying students in his care the public education that it is his job to provide.

The worst part of this admission, however, is the knowledge that the superintendent is not simply doing this out of ignorance of the law. For years, the Department of Education has warned schools not to use RTI to deny or even delay special education evaluations. In a memo sent to all state special education directors in 2011, the Office of Special Education Programs (OSEP) wrote that “[t]he use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation… to a child suspected of having a disability…”5 This memo followed a 2006 memo that stated quite clearly: “An RTI process does not replace the need for a comprehensive evaluation.”6 How can it be possible that the superintendent is not aware of this widely publicized policy at the same time he is promoting RTI as an alternative to special education evaluations?

Unfortunately, this school superintendent is far from alone. Other school districts are adopting this policy and many are announcing it publicly. A more recent article from another town’s newspaper begins with a headline that announces that the district’s special education program is to be “culled” of excess students, as if the students were a herd of over-reproducing deer. The article contains extensive quotes from both the district’s director of special education and a school committee member, explaining that students “must” be referred to a screening program that includes RTI before they can be referred to special education, a clear violation of the law.7 It is not clear from the article how the school administration was planning to remove students already in special education. That is a process that can only be done through extensive evaluations with objective data to prove that a previously identified learning disability no longer exists.

It is possible to have sympathy for those administrators and public officials who might have good intentions but who are caught in the dilemma of trying to balance available resources and the needs of students. But, the gatekeepers who choose to keep their jobs and future pensions by protecting the school budget are not the ones who lose. It is the children with disabilities and the families who are struggling with these disabilities who get lost in the bureaucratic spin cycle.

This is why the state and federal special education laws were written, to give the most vulnerable and least powerful the right to a public education appropriate to their abilities. Parents need to understand these rights and not let those with agendas other than providing an appropriate education take these rights away.

Judith Canty Graves and Carson Graves

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Notes:
1. “Kerble looking to curb SPED referrals” by Lynne Hendricks, Newburyport Daily News, January 14, 2013.
2. 34 C.F.R. §§ 300.307, 300.309, and 300.311. The only appearance of the words “response to intervention” occurs in 300.311 (a)(7).
3. “Questions and Answers On Response to Intervention (RTI) and Early Intervening Services (EIS)”
4. 20 U.S.C. § 1414 (a – b)
5. Memorandum dated January 21, 2011 from Melody Musgrove, Ed.D., Director, Office of Special Education Programs to State Directors of Special Education
6. “An RTI process does not replace the need for a comprehensive evaluation” From Zirkel letter
7. “Dedham Public Schools Special Education Program to be Culled” by Sara Feijo, Dedham Transcript, August 29, 2013.