New Q&A on FAPE issued following Supreme Court decision

The Office of Special Education and Rehabilitative Services (OSERS) announced this month its release of a Question and Answer (Q&A) document addressing the Endrew F. decision. OSERS is issuing this Q&A document to provide parents and other stakeholders information on the issues addressed in Endrew F. and the impact of the Court’s decision on the implementation of IDEA.

The Q&A explains the case and provides a summary of the Court’s final decision and prior case law addressing the FAPE standard. The document also explains how FAPE is currently defined, clarifies the standard for determining FAPE and addresses how this ruling can support children with disabilities.

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Changes in Texas Law on Bullying

The Texas legislature has passed a law (SB 179) that adds to the rules on harassment, bullying and cyberbullying of a public school student or minor.

Starting September 1, 2017, notice of alleged bullying must be given to the parent of the target student on or before the third business day after the incident is reported.  The alleged bully’s parent is to be notified within a “reasonable time.”

Chapter 37 is amended to allow for expulsion or DAEP for a student who 1) engages in bullying that encourages suicide; 2) incites violence through group bullying; or 3) releases or threatens to release “intimate visual material” of a minor or an adult student without consent.

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My Child’s 504 Plan Doesn’t Seem to Be Working. Now What?

Are you concerned your child’s 504 plan isn’t working? Sometimes 504 plans need to be adjusted to better serve your child and help her make progress. Here are steps you can take if you think your child’s 504 plan isn’t working.

1. Define what “not working” means to you.

The first step is to identify why you think the 504 plan isn’t working. Maybe you expected your child to improve in certain areas or have higher grades because of the 504 plan. Maybe you’re concerned that there’s a snag or mix-up with your child’s services and supports. You might think she needs different accommodations or more help than the school currently provides.

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HB 21 Passed in the 2017 Texas Legislature Special Session

Grant programs for students with Autism, and another for students with Dyslexia were approved. $20 million is budgeted to fund ten public or charter schools for each program for two years beginning in the 2018-19 school year. The programs are for children three through eight years of age. Parents must give consent for their child being in the program.

The programs must incorporate: evidence-based and research-based design; the use of empirical data on student achievement and improvement; parental support and collaboration; the use of technology; meaningful inclusion; the ability to replicate the program for students statewide.
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Does My Child’s 504 Plan Have to Be Reviewed at the Beginning of Each School Year?

Does my child’s 504 plan have to be revisited at the beginning of each school year? Is there a legal requirement to review it annually?

No, unlike with IEPs, there’s no legal requirement to review a 504 plan each year. But it’s a good idea to have an annual 504 plan review meeting anyway. In fact, it’s hard to imagine a situation where you wouldn’t want to revisit the plan at the start of the year.

The new school year brings a lot of changes for your child—such as new teachers, curriculum and classes. If your child is starting middle or high school, she may be in an unfamiliar setting for the first time. There are also possible changes in medication, as well as new extracurricular activities, like sports and clubs. A 504 plan should adjust for these changes.

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TEA’s ESSA State Plan Draft Is Open for Comments

The draft of the Texas ESSA state plan has been posted online at: http://tea.texas.gov/About_TEA/Laws_and_Rules/ESSA/Every_Student_Succeeds_Act/

Comments on the plan can be made until August 29th, 2017.  However, the draft mentions disabilities very little. If anyone has any addition information on the state plan, please let us know.

The Texas Education Agency (TEA) has also posted the following video:

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2017 Texas Bills Regarding Education

Chuck Noe, PRN Education Specialist, shares his insights on newly signed Texas legislation. Please keep in mind that even though a bill is effective immediately, the Texas Education Agency (TEA) must go through the process of developing and posting rules before schools can begin implementing some of the laws.


HB 1866

“Sec. 8.061.  DYSLEXIA SPECIALIST. Each regional education service center shall employ as a dyslexia specialist a person licensed as a dyslexia therapist under Chapter 403, Occupations Code, to provide school districts served by the center with support and resources that are necessary to assist students with dyslexia and the families of students with dyslexia.”

Currently, students in kindergarten thru second grade must be tested for dyslexia and related disorders.  Now students in kindergarten and first grade must also be screened at the end of the school year.  The question becomes, will the Texas Education Agency (TEA) feel that schools must do much if anything different than what they are currently doing.

TEA must annually develop a list of training opportunities regarding dyslexia.  At least one of these must be available online.  These opportunities must comply with the knowledge and practice standards of an international dyslexia organization, enable an educator to understand and recognize dyslexia as well as implement instruction that is systemic, explicit, and evidence-based to meet the educational needs of a student with dyslexia.

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Texas Legislative Update for June 2017

Chuck Noe, PRN Education Specialist,  shares his insights on newly signed Texas legislation.  Please keep in mind that even though a bill is effective immediately, the Texas Education Agency (TEA) must go through the process of developing and posting rules before schools can begin implementing some of the laws.

HB 657 

An ARD committee (IEP team) may promote a student to the next grade level if the committee concludes that the student has made sufficient progress in the measurable academic goals contained in the student’s IEP despite not passing the STAAR.  At the beginning of each school year, a district must inform parents of the options of the ARD committee if the student does not perform satisfactorily on an assessment instrument.  Effective immediately

HB 1645 

If a district allows a student to participate in a Special Olympics event, they must allow the student to earn a district letter.  This seems to be addressing a “fairness” or discrimination issue.  Effective immediately

SB 160

TEA may not adopt or implement a performance indicator in any agency monitoring system, including the performance-based monitoring analysis system, that solely measures a school district’s or open-enrollment charter school’s aggregated number or percentage of enrolled students who receive special education services.  TEA may still collect and examine data to determine whether significant disproportionality based on race or ethnicity is occurring in the state and in the school districts and open-enrollment charter schools.  Effective 5/22/2017

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Who Won Endrew F?

I got an email from a reporter last week asking a fascinating question: did parents or school districts win in the Endrew F decision by the US Supreme Court? You can read the entire high court decision here. Also our previous posts concerning the case are available here and here.

The reporter noted that it seems that parent groups are hailing the decision as a victory for them while at the same time school district groups are saying that they are already providing educational benefit at the level required by this decision. You can see the apparent discrepancy in this story by PBS on whether the decision is a game-changer for special ed.

So who won…well the answer is not very clear. I’m going to give you my analysis, but I’d love to hear your opinion as well. Who won and why?

For the parties to the actual case, the matter was remanded to the Tenth Circuit. This means that there will be further court proceedings before we know who prevailed in this case.

For purposes of special education law, however, the answer is a little foggy. School districts clearly won to the extent that the Supremes did not overturn Rowley. In fact the decision does not even mention the battle between some benefit vs. meaningful benefit that the earlier pleadings and argument seemed to involve. So Rowley is still good law.

On the other hand, parents clearly won to the extent that the high court required more benefit than the more than trivial or de minimis standard used by the Tenth Circuit Court of Appeals. To provide FAPE, a school district has to do better than that. The unanimous Supreme Court held that the standard is “markedly more demanding” than the standard used below.

However, school districts clearly won to the extent that the court rejected the potential maximizing standard that was previously rejected by Rowley. The Court refused to require an IEP that lead to self-sufficiency, academic success, and the ability to contribute to society. The Court rejected the argument that opportunity equal to that received by non-disabled students is necessary. In this regard, the Court mentioned that the Congress had amended IDEA a number of times since 1982 and yet never overruled Rowley so that it was good law still. Potential maximization arguments that had been rejected in Rowley continue to be rejected. So an IEP must be reasonable not ideal.

Nonetheless, parents clearly won to the extent that the court made FAPE turn on the individual circumstances of the child. The Court stated, “The goals may differ, but every child should have the chance to meet challenging objectives…” Rather than develop a bright line rule, the Court adopted an individualized fact specific approach.

OK so everybody won. Or at least you can see why they all believe that they won.

The real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.  The new standard requires that an IEP must be reasonable given the unique circumstances of the child with a disability. In other words, the IEP must be reasonably calculated to enable a child to make progress in light of his own individual circumstances. Students fully integrated in general education classrooms will be expected to make passing grades and advance from grade to grade. Other special education students may not need to make grade level success to receive FAPE as the standard for them is somewhat lower. 

Hearing officers and courts will follow the Supreme Court’s instruction and apply the revised standard on a case by case basis. They will engage in a fact-specific analysis involving the unique circumstances of the child with a disability. To some extent, what is “reasonable” is in the eye of the beholder.

So how will hearing officers and courts apply the newly clarified FAPE standard? Stay tuned.


Supreme Court Decision in Endrew F. Focuses on Mainstreaming, Progress, and Designing IEPs to Meet Child’s ‘Unique Needs’

What a great day! On March 22, 2017, the U.S. Supreme Court issued another unanimous ruling in favor of children with special needs and their parents.

The Court emphasized that full inclusion is the primary standard, with the “child progressing smoothly through the regular curriculum.”

The Court held that “merely more than de minimis” progress is not enough. Chief Justice Roberts wrote, “…IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

If a child is not fully included, school officials must look at the child’s unique needs before developing an IEP that is “pursuing academic and functional advancement.”

The decision in Endrew F. is a great victory for those who advocate children being fully integrated in regular education classrooms.

Per the statute – unique needs = specialized instruction.

Read Pete Wright’s analysis of the Supreme Court decision in Endrew v. Douglas County.

Return to Data Collection

What do you know about your child’s unique needs? You will get information about your child’s unique needs from test data that measures your child’s strengths, weaknesses, and educational needs.

How do you measure the educational benefit? You look at changes in the test data over time.

  • Are your child’s standard scores, percentile ranks going up over time or going down?
  • Is your child regressing? Is he being damaged by an inappropriate educational program?
  • Is your child making progress and showing educational benefit?

We hope that the decision in Endrew F. will lead to a return to data collection and analysis of the data over time, instead of relying on subjective perceptions about a child’s progress.

Schools used to rely on data and objective measures of progress, before the 1991 decision in Shannon Carter’s case. After Carter, school districts stopped using objective tests to measure progress and embraced subjective “teacher observations.”

This is a great day! In Endrew F., the Court focused on educational progress, growth, and developing IEPs to meet the child’s unique needs, while also re-emphasizing the goal of integration or inclusion in regular education.

Congratulations to Endrew F’s parents and their attorney, Jack Robinson, Esq. of Spies, Powers & Robinson, Denver, CO. This was such a long battle. You lost at every level, until the Supreme Court agreed to hear your case, then ruled in your favor.