Every child in this country has the right to a free public education, even children with disabilities who may face additional challenges in a traditional educational setting. Because of these potential additional challenges, your child with disabilities has the right to different services, accommodations, and support to ensure they receive an appropriate education through the public school system.
The number of Texas students utilizing special education benefits has been steadily increasing, with over 11 percent of all Texas' over 5.4 million K-12 students qualifying as special education during the 2020-2021 school year. Texas is the second largest state in the country, surpassing over 30 million residents in 2022, and one of the fastest growing.
The Texas Education Agency ("TEA") is responsible for managing the curriculum and educational needs of millions of Texan children. TEA knows that its students with disabilities have different needs, and their education requires different approaches and settings than the average student. To address these needs and best assist Texan children with disabilities, TEA supports the Texas Special Education Information Center ("SPEDTex"). SPEDTex takes a comprehensive approach to special education assistance, offering information and support to teachers, parents, and students.
K-12 special education is not a one-size-fits-all program. Different support and services are offered based on each individual child and their individual needs. While Texas, as well as federal laws, require the public education system to offer special education services, offerings can differ drastically from state to state and county to county for a variety of reasons, including student body size and budgeting restrictions.
Making sure that regardless of where you live in Texas, your child with disabilities receives the best possible special education resources can be difficult; that is why you need the help of the Lento Law Firm's Education Law Team. The Team specializes in ensuring that your school district, which may have dropped the ball, is sufficiently acknowledging your child's disability and providing the necessary accommodations for your child to thrive in their educational setting.
What Is Special Education?
You can find many definitions of special education, but arguably, the most important definition for navigating what your school district is legally obligated to provide for your child is the definition provided by federal law in the Individuals with Disabilities Education Act ("IDEA"). Under IDEA, "special education means specially designed instruction, at no cost to the parents, to meet the unique needs of the child with a disability – including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings and instruction in physical education."
Essentially, if your child has social, mental, or physical differences or disabilities that require modifications or accommodations for them to learn, they require and are entitled to special education. Exactly which services and accommodations a child is entitled to vary by state; this is one reason why having The Lento Law Firm's Education Law Team is beneficial. It is our job to help you understand the benefits your child should be getting based on Texas state and local county laws and regulations.
Relevant Laws
There are three main federal laws that address disability rights. The Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 are also important to disability rights education.
Individuals With Disabilities Act
IDEA, mentioned above, is the main federal law that addresses disability rights for students aged K-12. The law governs how states and public agencies provide special education to children with disabilities. The U.S. Department of Education provides the following stated purpose of IDEA is:
- to ensure that all children with disabilities have available to them a free, appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
- to ensure that the rights of children with disabilities and parents of such children are protected;
- to assist States, localities, educational service agencies, and Federal agencies in providing for the education of all children with disabilities;
- to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;
- to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services;
- to assess and ensure the effectiveness of efforts to educate children with disabilities.
Also referred to as an Individualized Education Plan, IEPs are a core component of IDEA. The IEP is a legal document; it IEP is a plan designed by your school district specifically for your child with special needs if their disability is severe enough to warrant education services different from those offered in what is referred to as general education or a general education classroom.
IDEA also entitles a child with disabilities to the right to a Free Appropriate Public Education ("FAPE") for students with disabilities whose parents opt to have them within the public school system or charter school system. The FAPE will be included and recorded within the IEP.
Important components of a FAPE include appropriate evaluations, effectively involving parents and students in decision-making processes, and providing the least restrictive environment for learning.
Americans With Disabilities Act
The ADA prohibits discrimination against persons with disabilities in state and local government services. This is relevant to children with disabilities because all public schools, not just those receiving Federal financial assistance, are covered under this law.
Section 504 of the Rehabilitation Act of 1973
Section 504 prohibits discrimination against individuals with disabilities who are attending schools that do receive Federal financial assistance. Students are eligible for protection under Section 504 if they meet one of the following requirements:
- Have a physical or mental impairment that substantially limits one or more major life activities
- Have a record of such an impairment
- Be regarded as having such an impairment
Plans developed under Section 504 are less formal than IEPs, which have a written requirement.
Texas Administrative Code
In Texas, special education rules and regulations are developed by the State Board of Education and its Commissioner. These rules are located in the Texas Administrative Code Title 19, Chapter 89, entitled "Adaptations for Special Populations."
Common Terms
Appropriate evaluations. Appropriate evaluations differ based on the nature of your child's disability, but common evaluations can include psychological evaluations, education evaluations, behavioral evaluations, parents, student, and teacher interviews, evaluations for speech and language processing, and evaluations of fine motor skills. Evaluations can be conducted by a variety of specialists, such as a psychologist, school social worker, counselor, speech-language pathologist, occupational therapist, or any relevant and qualified professional.
Providing the Lease Restrictive Environment ("LRE") for Learning. Generally, the least restrictive learning environment will be one in which students have access to other students of the same age who do not have disabilities. If a child is placed outside a general education classroom, that decision must be justified to benefit the individual child's disability-related needs. Depending on the school district, different options may be available, including options for co-taught classrooms that feature both a general education and special education teacher or part day in a general education classroom and part day in a more specialized setting.
Admissions, review, and dismissal ("ARD"). The ARD is the committee that meets to determine special education eligibility and develop an IEP if applicable.
Who Qualifies for Special Education?
In Texas, individuals between the ages of three and 21 are eligible for special education services. Texas uses the following list of disabilities when assessing whether a student is eligible for special education:
- Auditory Impairment (AI)
- Autism (AU)
- Deaf-Blindness (DB)
- Emotional Disturbance (ED)
- Intellectual Disability (ID) (formerly called Mental Retardation)
- Multiple Disabilities (MD)
- Orthopedic Impairment (OI)
- Other Health Impairment (OHI)
- Learning Disability (LD)
- Speech Impairment (SI)
- Traumatic Brain Injury (TBI)
- Visual Impairment (VI)
- Non-Categorical Early Childhood (NCEC) (this term is used to describe intellectual disabilities, emotional disturbances, specific learning disabilities, or autism spectrum disorders in children ages three to five)
What Is the Process for Obtaining Special Education Services?
Getting special education services for your child in Texas is an extensive multi-step process detailed below:
- Identifying the child as possibly needing special education and related services. There are two main ways in which children are identified as potentially having a special education-qualifying disability: one is through the Child Find system, and the second is by the referral of a parent or school personnel.
- Referral or request for evaluation by a parent. Texas requires that "if a parent submits a written request to a school district's director of special education services or to a district administrative employee for a full individual and initial evaluation [FIIE] of a student, the school district must, not later than the 15th school day after the date the district receives the request. 19 Texas Administrative Code §89.1011(b).
- The child is evaluated. Your child will be evaluated using the appropriate evaluation tools discussed in the Common Terms section above on a timeline mandated by TEA. Evaluations will be conducted for free and directed by TEA. A report is then generated for ARD review.
- An ARD meeting is scheduled and held, and eligibility is decided. Under Texas Code, the ARD must meet, review relevant reports, and make a determination on whether your child is eligible for special education. If your child is not granted eligibility, you have the right to request the school district pay for an Independent Educational Evaluation ("IEE") and to request a due process hearing to challenge the determination.
- The eligible child's IEP is written. If the ADR has determined your child is eligible for special education and related services, the ADR will work with you to develop your child's IEP using the above-discussed IEP and LRE criteria. If you disagree with the IEP the ADR has developed, you can ask for mediation, file a state complaint, or request a due process hearing.
- Special education services are provided. Such services are discussed in the section below.
- Progress is reported to parents. Your child's progress towards the goals stated in their IEP should be frequently evaluated and provided to you concurrently with your child's report card. If you have concerns about progress or other concerns related to the IEP, you can request an ARD meeting.
- The IEP is reviewed on an annual basis. The ADR is required to review your child's IEP annually or more frequently if you request otherwise.
- Your child is reevaluated. Your child must be reevaluated every three years to determine if they still require special education and services, although ADR does have the authority to make the determination without additional evaluation data.
Types of Special Education and Related Services
There are numerous special education services that may be available depending on your child's needs. These can include, but are not limited to:
- Adapting instruction (changes to classwork or routine, reducing the difficulty of assignments)
- Modifications to scheduling (giving students extra time for testing)
- Modifications to setting (working in smaller groups or one-on-one instruction)
- Modifications to materials (audiotaped lectures, Braille books, etc.)
- Access to interpreting services, speech-language pathology, and audiology services
- Access to psychological services
- Access to recreational therapy
- Adaptive equipment
- Assistive technology
- Access to a one-on-one aide
The Right to Special Education
Just like all other students in this country, your child with a disability has the legal right to a free education and the appropriate special education services they need. For many Texas families, the process of getting their child special education and related services is overwhelming and confusing.
The Lento Law Firm has worked closely with many Texas families to advocate for their children. We can help you ensure your child receives all of the educational opportunities they are entitled to and the appropriate tools to succeed in their special education journey. Contact us online or at (888) 535-3686.
