Despite Teacher Shortage, OSEP Says IDEA Compliance Requires Certified Teachers, No Waivers

The recent teacher shortage has caused districts to get creative regarding schedules, student grouping, and staff assignments. But just how creative can you be when it comes to the employees in your special education classrooms? The Office of Special Education Programs (OSEP) issued guidance on this topic on October 4, 2022, indicating that proper credentials will be an area of focus as we continue to navigate the post-COVID era.

IEP Spotlight: Transportation as a Related Service

Over the summer, we posted about the importance of and tips for successful IEP implementation and progress monitoring. This school year, we will post a series of articles focusing on the components of a great IEP. Today, we want to discuss an often-misunderstood related service: transportation.

The Individuals with Disabilities Education Act (IDEA) requires public schools to provide a free appropriate public education (FAPE) to students with disabilities through the provision of special education and related services designed to meet qualifying students’ unique needs. The IDEA defines related services as “transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education.”  In practical terms, this means that the ARD committee must determine if a student with a disability requires transportation in order to benefit from special education, and if so, the IEP must include transportation and the district must provide that transportation at no cost to the parent

Proposed Amendments to the TEA Complaint Process Are a Mixed Bag for Districts 

On September 23, 2022, the Texas Education Agency (“TEA”) issued a notice regarding proposed amendments to the sections of the Texas Administrative Code related to special education complaints filed with the TEA. The proposed rules are currently open for public comment and are the subject of a public hearing on October 6, 2022. The only major change impacting special education due process hearings would clarify that summary proceedings in hearing may only be used when both parties in the hearing agree to use the summary process. This is significant because parties are currently able to file motions for summary judgment – which allows a hearing officer to rule on the legal viability of a claim without the need for a complete hearing. This approach can be productive and cost-effective for school districts, as it permits hearing officers to sift through meritless claims without the need for a full hearing. This is currently permitted in a due process hearing without the consent of the other party, and this change would require consent.

Can Districts Still Find Resolution After a Due Process Hearing Has Been Requested?

School districts and parents across Texas are regularly working together to ensure that the needs of students are met and that the district is providing a free appropriate public education (FAPE). Every child is unique; likewise, every Individualized Education Plan (IEP) is just as distinct. When a disagreement arises and disputes occur, the district and parents have the ability to go through various dispute resolution processes. The Texas Education Agency encourages and supports the resolution of any dispute that arises between the parent and a school district relating to the identification, evaluation, or educational placement of or the provision of a FAPE to a student.

Several options exist for resolving disputes at any level or stage. Some of those options include but are not limited to: ARD meetings; meetings or conferences with the student’s teacher, campus administrator, or special education director; mediation through TEA; and filing a complaint or due process hearing through TEA. Districts and parents utilize these formal and informal methods to problem solve and settle disagreements.

But once a parent has formally filed a request for a due process hearing, is there any hope left for resolution or are the parent and district forced to go through with a due process hearing before a hearing officer? The answer is, yes, there is hope for resolution before a due process hearing. In fact, the majority of due process hearing requests are resolved without a hearing.

Sports, Clubs, Competitions, Oh My! Ensuring Equal Opportunity to Extracurriculars for Students with Disabilities 

Bring on the extracurriculars! Educators, families, and students would likely agree – extracurricular activities are a significant part of education. Both the IDEA and Section 504 must provide students with disabilities an equal opportunity to participate in extracurricular activities.  

What does this mean for school districts? A guidance from the Department of Education gives us some insight. First off, school districts should avoid denying students with disabilities the opportunity to participate in or benefit from an aid, benefit, or service because of the student’s disability. Instead, school districts must afford students with disabilities an equal opportunity for participation in extracurricular services and activities.   Remember that Section 504 protects the rights of students with disabilities even if that student is not eligible for services under IDEA.