Seven Years and Millions of Children Later, U.S. Department of Education Announces Continued Monitoring of Texas

6.9.23: Article first published. 6.21.23: Article updated to include IDEA Part C October 5, 2020, DMS Monitoring Report; September 20, 2021, DMS status letter and response chart; and May 2, 2023, DMS closeout letter.

U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) announced it will continue its years-long monitoring of Texas Education Agency (TEA).

May 4, 2023, OSEP Director Valerie Williams issued a letter to TEA Commissioner Mike Morath, stating OSEP discovered TEA has been investigating Austin Independent School District (AISD) for more than a year, "due to the district's years-long backlog of special education evaluations, as required by the child find and evaluations requirements (34 C.F.R. §§ 300.301-306)." In light of this finding, TEA has 30 days from the date of the May 4, 2023, letter to provide OSEP with a status report on AISD's evaluation backlog, "as well as its plan for bringing AISD into compliance with IDEA and its implementing requirements."

OSEP made this finding during a February 13 and 14 onsite meeting with TEA staff to "discuss and review the evidence submitted as required by the Specific Conditions imposed on the State’s FY 2022 Individual with Disabilities Education Act (IDEA) grant award, dated July 1, 2022."

A State of Noncompliance

The content of OSEP's May 4, 2023, letter isn't a surprise, although the letter being listed as a "DMS Close-out Letter" is an eyebrow raiser. TEA has a long history of failing to address the unique needs of children and providing them a free appropriate public education.

In 2016, the Houston Chronicle launched the series “Denied: How Texas keeps tens of thousands of children out of special education.” The series caught the attention of OSEP, which reached out to TEA, and then started investigating the agency.

January 11, 2018, OSEP issued a Differentiated Monitoring Support (DMS) letter of findings and enclosure that includes the following:

• 2003-2004 school year to 2016-2017 school year: The number of children identified as children with disabilities under the IDEA declined from 509,401 to 477,281 students, yet the enrollment increased by 1,031,099 students during the same time period.

• 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.

• 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.

• 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.

In addition, OSEP emphasized TEA's overall failures related to children who have Dyslexia. OSEP identified TEA's practice of refusing to evaluate students who were struggling to read unless the child presented a second "potentially disabling condition". Hence, students suspected of struggling with Dyslexia remained unevaluated for special education.

For those students who were referred for an initial evaluation, OSEP identified inconsistent practices among the school districts.

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.

The enclosure to the January 11, 2018, letter includes the corrective action plan TEA was required to implement.

A State of Disrepair

October 19, 2018, then-OSEP Director Ruth Ryder issued another DMS letter to TEA, to address TEA's responses to the January 11, 2018. It was clear TEA remained in a state of disrepair.

Two years later, October 5, 2020, then-OSEP Director Laurie VanderPloeg issued a DMS letter addressing failings under IDEA Part C to Texas Health and Human Services Commission (HHSC). The letter cites conversations THHSC had with OSEP, during which it admitted that "not all eligible infants and toddlers with disabilities had early intervention (EI) services made available to them as required by IDEA Part C" and that "on October 1, 2016 a local ECI program stopped providing EI services to over two hundred infants and toddlers with disabilities and that HHSC had not yet secured a replacement provider for the region." Unfortunately, it wasn't until OSEP's August 2019 monitoring activities that "OSEP identified significant noncompliance with HHSC’s implementation of the IDEA Part C program." The enclosure with its October 5 letter states HHSC failed to provide appropriate EI services to all infants and toddlers with disabilities, to include failing to:

1. Ensure its local ECI programs are appropriately maintaining records in order to provide
EI services to infants and toddlers with disabilities in a timely manner;

2. Ensure that it has a comprehensive child find system in place that is able to appropriately
identify infants and toddlers with disabilities for IDEA Part C services; and

3. Ensure that IDEA Part C resources are available for all geographic areas in the State.

Two weeks later, October 19, 2020, then-OSEP Director Laurie VanderPloeg issued another DMS letter to TEA, addressing IDEA Part B. Long-standing noncompliance remained a problem. According to a later, August 27, 2021, DMS letter, "the 2020 monitoring report concluded TEA had only implemented one of the items included in its April 23, 2018 CAR and that TEA also had failed to implement the additional required actions specified in OSEP's October 19, 2018 response to the CAR."

August 27, 2021, OSEP Acting Director David Cantrell issued another DMS letter with an enclosure to TEA. This one came with a warning of funds being pulled:

"... despite TEA's submissions, OSEP has determined that TEA still has not satisfied: (1) the majority of the items TEA identified in its April 23, 2018 CAR to address the findings of noncompliance contained in OSEP's 2018 monitoring report; (2) the required actions identified in OSEP's letter dated October 19, 2018; and (3) the required actions identified in OSEP's 2020 monitoring report. Therefore, OSEP requests that TEA take additional actions and provide the required documentation that are identified in the enclosed chart as soon as possible, but no later than 30 days from the date of this letter. Please note that the required actions and documentation include items that represent longstanding noncompliance. TEA's failure to take all the required actions necessary to address the longstanding noncompliance identified in OSEP's January 11, 2018 monitoring report could result in the imposition of specific conditions on TEA's IDEA Part B grant funds and could affect TEA's determination under section 616(d) of IDEA."

September 20, 2021, OSEP Acting Director David Cantrell issued a status letter and corrective action chart to HSSC, addressing IDEA Part C. The letter cites the previous October 5, 2020, letter and HHSC's subsequent corrective actions and OSEP's determination that Texas "must take additional steps to address and resolve each of these two findings of noncompliance and the required corrective actions outlined in the monitoring report."

October 1, 2021, OSEP Acting Director David Cantrell issued another DMS letter. After five years of monitoring Texas and after three years of submitting DMS letters of finding to Texas, OSEP took a different track in addressing TEA's continued noncompliance.

In its letter regarding the state’s corrective action response, OSEP states:

Over the last three years, OSEP has communicated with TEA about, and reviewed documents regarding, TEA’s continued noncompliance with IDEA requirements related to child find, the provision of a free appropriate public education (FAPE), and the exercise of TEA’s general supervision and monitoring responsibilities. OSEP has carefully reviewed the actions TEA has taken toward correcting the identified noncompliance . . .

Based on this, OSEP concludes that the State has not completed all the required actions necessary to address the findings of longstanding noncompliance. . . .

As a result of the longstanding nature of the State’s noncompliance with these critical IDEA requirements, OSEP is designating TEA’s FFY 2021 IDEA Part B grant award as subject to specific conditions, pursuant to our authority under 2 C.F.R. 200.208 and sections 603 and 616(g) of IDEA.

In its letter regarding the maintenance of state financial support of special education, OSEP states:

Texas is not eligible for a portion of a future section 611 grant under the Individuals with Disabilities Education Act (IDEA), in the amount of $33,302,428, because it did not meet its obligation to maintain State financial support for special education and related services in State fiscal year (SFY) 2012. 20 U.S.C. §1412(a)(18)(A)–(B) and (d)(2). The purpose of this current letter is to inform you that the determination is now final, and the Department will reduce Texas’s IDEA section 611 award in a future Federal fiscal year due to the State’s failure to maintain State financial support for special education and related services in SFY 2012. The issuance of this final determination was delayed because of discussions between the Department and the Texas Education Agency (TEA) regarding TEA’s settlement proposal, which had initially included the SFY 2012 shortfall.

May 2, 2023, OSEP Director Valerie Williams issued a close-out letter to TEA, regarding OSEP's IDEA Part C monitoring of Texas, and states "OSEP has determined that the State has taken the necessary steps to address and resolve the findings of noncompliance and the required corrective actions outlined in the OSEP's 2020 monitoring report."

And then the May 5, 2023, letter regarding IDEA Part B was issued, and it was clear Texas' noncompliance continues.

Seven years, dozens of news reports, and dozens of DMS letters later . . . Millions of children have been failed and continued to be failed.