The federal government gave Texas one month to show the State does not keep children with disabilities from receiving services and is in compliance with special education laws.

In a letter, the U.S. Department of Education said the Texas Education Agency (TEA) had one month to either provide evidence that schools do not prevent special education students from receiving services or they must outline a plan to end the Performance-Based Monitoring Analysis System (PBMAS) Indicator 10. The letter, which the TEA received October 3, was in response to a recent Houston Chronicle investigation that alleged school districts which provide specialized education services to more than 8.5 percent of students get penalized.

Breitbart Texas obtained a copy of the letter written by Sue Swenson, Acting Assistant Secretary for the U.S. Education Department Acting Assistant Secretary for the Office of Special Education and Rehabilitative Services (OSER), to Texas Education Commissioner Mike Morath. She stated: “It appears that the State’s approach to monitoring local educational agency compliance under the PBMAS Indicator 10 may be resulting in districts’ failure to identify and evaluate all students suspected of having a disability and who need special education.”

“Based on TEA’s response,” Swenson wrote, these federal agencies “will determine whether additional monitoring activities or other administrative enforcement or corrective actions are necessary.”

The letter cited the Houston newspaper findings that, in 2004, nearly 12 percent of Texas students received some form of special education services including tutoring, therapy, and counseling but this figure was down to 8.5 percent by 2015. The publication stated the national average hovers around 13 percent and that Texas is the only state to set a target for special education enrollment.

According to the Houston Chronicle, the TEA quietly implemented an “arbitrary” 8.5 percent target without consulting the Texas Legislature, State Board of Education, federal government, or any research. The report asserted the TEA required some school districts that served more than this percentage of students to create “Corrective Action Plans” and schools responded by making special education much harder to access.

Also, the publication reported the TEA denied they prevented disabled students from receiving services and said the 8.5 percent enrollment guideline was not a cap or a target but an “indicator” of performance by school districts.

In the letter, Swenson referenced a 2014 conversation between Gene Lenz, Director of TEA’s Division of Federal and State Education Policy, regarding the use of the 8.5 percent “monitoring standard” in PBMAS Indicator 10.

Swenson wrote:

“Mr. Lenz explained that this indicator was established to address the State’s concern that some districts were inappropriately over identifying students as students with disabilities. He further explained that an elevated PL [Performance Level] was not necessarily indicative of a district noncompliance, but that if a district exceeded the 8.5 percent monitoring standard, the State examined the district’s policies, procedures, and practices more closely to ensure that students were not being inappropriately identified as students with disabilities. If noncompliance was identified through this monitoring process, the district was required to correct the non-compliance.”

Swenson commented that Lenz assured OSER staffers that Texas monitors to ensure districts carry out their “Child Find” responsibilities to identify, locate, and evaluate all children with disabilities who are in need of special education and related services statewide.

Child Find is a federal mandate under the Individuals with Disabilities Education Act (IDEA). It requires all school districts to identify, locate, and evaluate all children with disabilities, regardless of the severity of a disability. The mandate applies to all children from birth through age 21 and includes youngsters who attend public and private schools, as well as those considered highly mobile, illegal immigrants, and who are wards of the state, according to Wrights Law.

The letter gives the TEA 30 days to respond to “allegations” raised by the Houston Chronicle’ regarding the agency’s special education practices. In response to receiving this correspondence from U.S. Education Department officials, the TEA issued a statement:

“Texas school districts are obligated by law and agency policy to identify and provide services to all students with disabilities who require special education services. All Texas students who are entitled to special education services at school should have access to the services they need. The Texas Education Agency welcomes the opportunity to discuss specific components of the Performance-Based Monitoring Analysis System (PBMAS). In addition to our discussions with federal officials, TEA will continue its own internal review, working with special education advisory groups for feedback and guidance on all aspects of special education policy.”

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10.03.16 US Education Department Letter to TEA by BreitbartTexas on Scribd