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.  

Regarding state complaints filed with the TEA, the proposed amendments would not adopt the two-year statute of limitations period that went into effect for due process hearings on September 1, 2022, leaving the one-year period intact for TEA complaints. As there are many benefits to a one-calendar-year statute of limitations period, including the ability to resolve concerns relating to the identification, evaluation, placement, and provision of FAPE in a timely manner, this is good news for school districts. 

The proposed amendments would also specify that the complaint timeline would commence on the business day that the TEA receives the complaint and that, if a complaint is received on a day other than a business day, the complaint timeline would commence on the first business day after the day on which the TEA receives the complaint. This is good news for Districts, especially when complaints are filed during school holidays. In addition, the one-calendar-year statute of limitations for a complaint would then be determined based on the day that the complaint timeline commences. However, if the complainant does not provide the school district with a copy of the complaint at the same time the complaint is filed with TEA, the timelines would commence on the day TEA provides the complaint to the school district.  

However, the proposed amendments would allow the TEA to resolve any other credibly alleged violation of the IDEA or a state special education statute or administrative rule that it receives even if a sufficient complaint is not filed with the TEA. This means that the TEA would have the discretion to investigate claims that the complainant did not raise in the complaint itself, dramatically expanding TEA’s role in the special education complaint resolution process. This proposed amendment would likely have grave implications for school districts, drastically increasing the amount of time and resources school districts must expend to defend themselves in this process. Fortunately, the proposed amendments clarify that anonymous complaints, complaints that are received outside the one-calendar-year statute of limitations, and complaints that do not include sufficient information or detail for the TEA to determine that an alleged violation occurred will not be considered. And the proposed amendments would allow school districts to request reconsideration within 15 calendar days of the date that TEA issued its findings in these situations.  

Finally, the proposed amendments would require a school district to provide a hard copy of the Notice of Procedural Safeguards to a parent who files a TEA complaint against the district, unless the parent has elected to receive the required notice via email. This would require many school districts who have moved towards providing notices electronically in most situations to revert to old practices. Likewise, one of the best and easiest ways to document the provision of procedural safeguards is to have email proof. Therefore, should this proposed amendment be adopted, school districts must re-train special education personnel to document the provision of these hard copies to parents and possibly include a form that a parent signs proving receipt of procedural safeguard.  

Currently, the proposed effective date for these amendments is January 3, 2023. It is important to understand that these amendments are just proposed at this time. The public comment period began on September 23, 2022 and will last until October 24, 2022. School districts, agencies, and individuals wishing to comment on these proposed amendments may do so here. There will also be a public hearing to solicit testimony and input on the proposed at 9:00 a.m. on October 6 and 7, 2022, via this Zoom link. For questions relating to these proposed amendments or guidance on the public comment period, contact the author of this post or any member of the Thompson & Horton Special Education Team.