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From the Texas Tribune: 5th Circuit upholds feds’ $33 million penalty for Texas decrease in special education funding

5th Circuit upholds feds’ $33 million penalty for Texas decrease in special education funding” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Texas’ decision to spend $33.3 million less on students with disabilities in 2012 will likely cost it millions in future federal funding after a Wednesday afternoon 5th U.S. Circuit Court of Appeals ruling.

According to the New Orleans-based court, the U.S. Department of Education was within its rights to try to withhold the same amount from Texas’ special education grants, since a 1997 federal statute prohibits states from reducing their funding for kids with disabilities from year to year. Texas had appealed the department’s decision, arguing that statute was vague and unenforceable.

A little more than a month after hearing both sides, and the day after a momentous midterm election, the three-judge panel effectively upheld the education department’s decision to financially penalize Texas in an opinion that called the state’s argument “unpersuasive.” The 13-page opinion questions Texas’ current system for funding special education, saying it could give the state reason to minimize the needs of kids with disabilities in order to save money.

The court also ruled that Texas must pay the federal government’s appeal costs. Texas has not publicly indicated whether it will try to appeal the ruling.

Since 1995, Texas has weighted funding for kids with disabilities, paying schools more to educate kids who have more severe disabilities or need more personalized attention in order to learn. It argued it spent $33.3 million less in 2012 because its special education programs successfully got students to “overcome their disabilities,” decreasing their need. School districts reported students in need of less expensive services that year and so the state allocated less money, lawyers argued.

The federal government’s argument is simple: States cannot decrease their funding from year to year, a provision that ensures they use the additional federal money to enhance services, instead of cutting their budgets.

Texas’ weighted funding system “poses the potential for future abuse” of that statute, the panel said in an opinion written by Judge Jerry Smith, who had expressed skepticism towards the state’s argument in October.

“Though Texas law requires the state to allocate funding based on the needs of disabled children, it is the state itself that assesses what those needs are,” Smith wrote. “Hence, the weighted-student model creates a perverse incentive for a state to escape its financial obligations merely by minimizing the special education needs of it students.”

At a Texas House Appropriations Committee hearing last month, state education officials prepared lawmakers for a potential loss at the 5th Circuit, saying the penalty — which amounts to 3 percent of Texas’ annual federal special education grant — would have minimal impact on their special education programs.

Texas is separately working to overhaul its special education programs after a U.S. Department of Education investigation concluded earlier this year that the state had effectively denied services to thousands of students with disabilities who needed them. Officials estimate spending $3 billion more on kids with disabilities over the next three years, since more students are likely to be eligible for services.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/11/07/texas-special-education-funding/.

 

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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Commissioner updates SBOE on SpEd, contracting, budget

The Texas State Board of Education (SBOE) opened its Wednesday meeting with an update from Education Commissioner Mike Morath.

The commissioner began by praising the board’s work on the Long-Range Plan for Public Education, and suggested that there is significant overlap with the agency’s own strategic plan.

TEA Commissioner Mike Morath testifying before the SBOE, September 12, 2018.

Morath caught members up to speed on the recent debate over a cosmetology course, and indicated that the course is not expected to go away. The commissioner testified he asked staff to look into ways to ameliorate the high cost of the associated licensure.

Regarding special education, Morath claimed progress in a number of areas. The commissioner said the agency has accomplished more than half of the items under the corrective action plan. The agency was tasked with setting up a large field apparatus, and 70 percent of 55 vacant positions have been filled, including all leadership positions. Justin Porter, who helped write the corrective action plan, is the special education director.

A total of 14 grants have been posted, and an additional five have been completed internally and will be finished within the next couple months. Statements of work have been drafted for 15 of the contracts related to strategic plan.

On a separate but related note, Commissioner Morath acknowledged recent contracting issues that resulted in a rebuke from the Texas State Auditor’s office, while defending staff involved. Morath state that starting in November of last year, the agency initiated a top-to-bottom review of contracting practices.

With regard to the agency’s legislative appropriations request (LAR), in which the agency submits its budget requests for the next biennium to the Texas Legislature, Morath noted that the agency is requesting two exceptional items. These consist of $50 million to support districts providing compensatory services in order to comply with the special education corrective action plan, and roughly $50 million for health and safety, $20 million of which is aligned to the governor’s school safety plan.

The commissioner then offered a review of “A through F” school district ratings, which were released in August. Additionally, Morath noted that the state saw a one-year reduction of 247 “improvement required” (IR) campuses. This marks the last set of campus ratings under the “met standard” or IR labeling system, and campuses will instead receive A-F ratings next August.

Finally, Commissioner Morath briefed members on the first TEA annual report on the state of public education in Texas and solicited feedback from members. Relating to teacher recruitment and retention, Morath noted board members will receive a briefing on the Texas lesson study initiative tomorrow.

SBOE committee update: Dyslexia handbook

The three committees of the State Board of Education (SBOE) met Thursday morning to discuss items under the umbrella of school initiatives, instruction, and school finance/permanent school fund.

SBOE Committee on Instruction meeting June 14, 2018.

The Committee on Instruction began its meeting by considering changes to the rules regarding credit by examination (CBE), which was opposed by school administrators. Witnesses warned that some of the changes, such as the method of external validation, were infeasible. The committee ultimately amended the rules following a lengthy conversation with stakeholders.

The committee also approved amendments to the Dyslexia Handbook, which were proposed as a result of testimony received by special education advocates in April. The handbook is being adopted into state administrative rule in order to ensure all schools comply with the provisions contained within it. Witnesses on Thursday expressed concern over the ability of districts to create their own reading programs under the new rule. Other witnesses warned about the potential consequences of arbitrarily placing all dyslexic children in special education programs as opposed to Section 504. Member Tincy Miller (R-Dallas) urged staff to ensure a balanced approach in the handbook.

The full board is scheduled to meet again on Friday to wrap up its June meeting.

Teach the Vote’s Week in Review: June 8, 2018

Here’s your weekly wrap-up of education news from ATPE Governmental Relations:


School finance commission working group on expenditures meeting June 6, 2018.

The Texas Commission on Public School Finance met this week both as a whole and in smaller working groups. ATPE Lobbyist Mark Wiggins followed the conversation and provided updates for TeachTheVote.org. His first post details Tuesday’s meeting of the full commission, in which members heard from a number of invited witness who talked about teacher supports, such as merit pay programs.

The working group on revenues, led by state Sen. Paul Bettencourt (R-Houston), held a last-minute meeting afterward that resulted in most of the public not being able to attend, but reports from those inside provided an idea of what the group has planned. State Rep. Dan Huberty’s (R-Houston) working group on expenditures met Wednesday morning, and engaged in a lively discussion about textbooks and classroom technology.

The commission is scheduled to meet again on July 10, followed by an expenditures meeting on July 11 in which the working group will vote on recommendations to submit to the full body.


The Senate Select Committee on Violence in Schools and School Security is set to hold two hearings next week in response to the tragic school shooting in Santa Fe, Texas. Lt. Gov. Dan Patrick assigned Senate Education Committee Chair Larry Taylor (R-Friendswood) to chair the select committee, which is composed of six Republicans and three Democrats.

Monday’s agenda includes invited and public testimony on the following: “Improve the infrastructure and design of Texas schools to reduce security threats, and discuss various proposals to harden school facilities, including limiting access points, improving screening and detecting of weapons, retrofitting school facilities with improved locks, emergency alarm systems, and monitoring cameras.”

Tuesday’s agenda includes invited and public testimony on the following: “Study school security options and resources, including, but not limited to, the school marshal program, school police officers, armed school personnel, the Texas School Safety Center, and other training programs to determine what improvements can be made to provide school districts and charter schools with more robust security options.”

Texas Speaker Joe Straus (R-San Antonio) asked the House Committee on Criminal Jurisprudence to study a “red flag” law that would provide a legal process for temporarily removing guns from someone considered potentially dangerous by family members or law enforcement. Straus also announced nine new interim charges for House committees:

Committee on Appropriations

“Examine the availability of federal funding and Governor’s Criminal Justice grants that may directly or indirectly improve school safety. Evaluate the potential costs of proposals identified by the Governor and House Committees related to improving access to mental health services for children, improved school safety, and enhanced firearm safety.”

Committee on Public Education

“Review the effectiveness of schools’ current multi-hazard emergency operation plans. Determine any areas of deficiency and make recommendations to ensure student safety. Research violence prevention strategies, such as threat assessment, that are available for school personnel to identify students who might pose a threat to themselves or others. Identify resources and training available to schools to help them develop intervention plans that address the underlying problems that caused the threatening behavior.”

“Examine current school facilities and grounds. Consider any research-based ‘best practices’ when designing a school to provide a more secure environment. Review the effectiveness of installing metal detectors, cameras, safety locks, streaming video of school security cameras, and other measures designed to improve school safety.”

Committee on Criminal Jurisprudence

“Examine current statutes designed to protect minors from accessing firearms without proper supervision and make recommendations to ensure responsible and safe firearm storage, including enhancing the penalty to a felony when unauthorized access results in death or bodily injury.”

Committee on Homeland Security and Public Safety

“Evaluate options to increase the number of school marshals available, and identify current statutory requirements that limit utilization of the program.”

“Examine best practices and measures adopted in other states regarding reporting lost or stolen firearms. Gather information on reporting strategies, fines, and/or penalties for noncompliance, and receive testimony from law enforcement related to mishandling of firearms.”

Committees on Public Education and Committee on Public Health (Joint Charge)

“Consider testimony provided at the May 17 House Public Health Committee hearing regarding improving mental health services for children. Identify specific strategies that would enhance overall school safety. Study ways to help parents, youth and primary care providers support school personnel in their efforts to identify and intervene early when mental health problems arise. In addition to school-based trauma-informed programs and those that treat early psychosis, consider the benefits of universal screening tools and expanding the Child Psychiatry Access Program (CPAP). Make recommendations to enhance collaboration among the Health and Human Services Commission, the Texas Education Agency, local mental health authorities, and education service centers.”

Committee on Homeland Security & Public Safety and Committee on Judiciary and Civil Jurisprudence (Joint Charge)

“Examine current judicial procedures and practices and make recommendations to assist all courts and jurisdictions in reporting judgments and verdicts which make up the information sent to the National Instant Background Check System (NICS). Review and make recommendations regarding the list of convictions, judgments, and judicial orders which disqualify a person from possessing a firearm.”

Committee on Defense & Veterans Affairs and Committee on Homeland Security & Public Safety (Joint Charge)

“Examine the experience of other states in prioritizing retired peace officers and military veterans for school security. Determine the minimum standards necessary to implement such a program.”

ATPE will be attending these hearings will post updates at TeachTheVote.org. The House and Senate actions come after Gov. Greg Abbott released his outline of ideas to prevent further school shootings last week. Many of those ideas would require legislative action, which is among the things the committees will consider.

 


State Rep. Larry Gonzales (R-Round Rock) announced his resignation this week, saying it’s time to move on. The Texas Tribune reported on his announcement, which we’ve been expecting since he announced last year he wouldn’t be running for reelection. Rep. Gonzales chaired the House Appropriations Subcommittee on Articles VI, VII and VIII of the state budget, which includes funding for big state agencies such as the Texas Department of Transportation (TxDOT). As a member of the Texas Legislature, he was well known for being a friendly guy and a straight shooter who worked with both parties to get things done. Gonzales was a good friend of public education, and his presence in the legislature will be dearly missed.

The race to follow Rep. Gonzales in representing House District (HD) 52 is between Republican Cynthia Flores and Democrat James Talarico. You can click on each of their names to view their candidate information and survey responses they provided to TeachTheVote.org. This is expected to be a close race, which underscores the importance of every vote.

The November 6 General Election will be the last opportunity for education supporters to make sure pro-public education candidates are elected into office. Whomever voters choose will decide what direction to take the Texas Legislature when it meets in January. Will we see a resurrection of vouchers and bills attacking teachers? Or will we see a comprehensive school finance reform bill that puts more resources into classrooms and gives local taxpayers a break? It all depends on who you elect!

 


 

Education Commissioner Mike Morath announced Wednesday the criteria for schools affected by Hurricane Harvey to receive waivers from the state accountability ratings. Campuses, districts, and open enrollment charter schools are eligible to be evaluated under the Hurricane Harvey Provision if 10% or more of students or teachers were reported as homeless after the storm, if the campus was closed for ten or more instructional days, or if the campus was reported as being displaced due to the geographic relocation of students or the sharing of instructional facilities. Campuses or districts that meet at least one of these criteria AND are labeled Improvement Required or receive a B, C, D, or F rating will have their accountability rating changed to Not Rated. You can read the full announcement here.

 


ATPE educator and Round Rock ISD fourth grade teacher Stephanie Stoebe testifying at the Texas Capitol June 7, 2018.

Lawmakers on the House Committee on Public Education Subcommittee on Educator Quality and the House Committee on Higher Education combined forces on Thursday to discuss educator preparation programs (EPPs). The differences between alternative certification or “alt-cert” programs and traditional EPPs was examined during the hearing. The combined committees also heard from ATPE member Stephanie Stoebe, who spoke about her efforts to identify what marks a quality EPP. Stoebe’s recommendations for the committees included creating a dashboard to share EPP information and setting high standards relevant to student achievement. Teacher pay and attrition were also among the topics discussed at the hearing. The combined committees also heard from Stephen F. Austin University, College of Education Dean, Dr. Judy Abbott about partnerships between colleges, universities, and local districts. A detailed breakdown of the hearing can be found in this post by ATPE Lobbyist Mark Wiggins.

 


On Wednesday, June 6, the Texas Education Agency (TEA) released guidelines to all administrators relating to services for students with dyslexia and other disorders. The provisions come after a final monitoring report from the U.S. Department of Education Office of Special Education Programs (OSEP) disclosed that TEA failed to comply requirements in the Individuals with Disabilities Education Act (IDEA). The provision of services outlines the appropriate responses educators should have if a student is showing early signs of dyslexia, the need for special education, or other services. Read the full correspondence here.

House committee looks at testing, special ed issues

The House Committee on Public Education met Thursday morning at the Texas Capitol to discuss interim charges related to testing and special education. The interim charges are assigned by Speaker Joe Straus (R-San Antonio) and are generally composed of a detailed list of topics for each standing committee to research and discuss before the next legislative session. The following charges were on Thursday’s agenda:

  • Examine research-based options for evaluating student achievement beyond standardized test scores, including adaptive and portfolio assessments. Examine the scope of the current Texas Essential Knowledge and Skills (TEKS)in grades with the state assessment, including the format, assessment calendar, and the limits of instructional days, if any. Determine if it is appropriate to limit TEKS to readiness standards that can be taught in less than the school year. Review current Student Success Initiative testing and make recommendations on its continuation or repeal. Review the ability of the state to waive standardized testing for students with significant cognitive disabilities.
  • Examine programs in public schools that have proven results meeting the needs of and improving student achievement for students with disabilities, with an emphasis on programs specializing in autism, dysgraphia, and dyslexia. Recommend ways to support and scale innovative programs for these students, including providing supplemental services, or incentivizing public-private partnerships or inter district and charter school collaborations. Monitor the implementation and funding for the pilot programs authorized in H.B. 21 (85R) and review the Texas Education Agency’s compliance with S.B. 160 (85R), which prohibits special education student caps.

After updating the committee on the Texas Education Agency’s (TEA) response to the Santa Fe school shooting and recent STAAR test glitches, Commissioner Mike Morath began his testimony by summarizing the overall design of the STAAR test and Texas Essential Knowledge and Skills (TEKS) upon which tests are based. Morath pointed to one idea, splitting the STAAR test into sections to allow more flexible scheduling, that he suggested may require legislative guidance before ordering further agency research.

House Public Education Committee meeting May 24, 2018.

Members of the committee raised questions about the writing test, in particular with regard to grading methods. Morath indicated that a writing program created as a result of legislation by state Rep. Gary VanDeaver (R-New Boston) has yielded useful information, and noted that additional appropriation to continue the program would be a positive step.

Rep. VanDeaver asked Morath how much money could be saved by eliminating standardized tests that are required by the state, but not by federal law. House Bill (HB) 515 filed by VanDeaver during the 2017 legislative session would have eliminated tests not mandated under the federal Every Student Succeeds Act (ESSA), and was estimated to result in a savings of $7 million. The bill was ultimately unsuccessful.

Other invited testimony included a panel of superintendents who testified to the overreliance on standardized tests for everything from student advancement to school accountability. Granger ISD Superintendent Randy Willis asked the committee to consider eliminating a single summative assessment at the end of the year in favor of multiple formative assessments and reducing the number of assessed standards. Doug Williams, Superintendent of Sunnyvale ISD, voiced support for dividing the STAAR into sections, ongoing diagnostic assessments, and making substantial changes to the writing portion of the exam. Part of the panel discussion touched on allowing teachers to directly grade writing exams, in other to provide better feedback and analysis.

ATPE Lobbyist Monty Exter testified before the committee on the specificity of the TEKS, teaching versus testing, and corollary applications to the teacher pipeline. Other public testimony focused on portfolio assessments, such as rubrics developed by the New York Performance Standards Consortium.

ATPE Lobbyist Monty Exter testifying before House Public Education Committee May 24, 2018.

After a brief break, the committee turned its focus to special education. TEA Deputy Commissioner Penny Schwinn walked members through the corrective action plan prepared by the agency to address the de facto cap on special education enrollment that resulted in a federal rebuke. Schwinn emphasized that current and future guidance indicates students with dyslexia should not be arbitrarily confined to Section 504 programs, but may qualify for special education services depending on the individual.

A number of advocacy organizations were invited to testify regarding the agency’s actions. Among the concerns raised by special education advocates was the timeline for implementation. Chris Masey with the Coalition of Texans with Disabilities presented the dichotomy between progress at the policy level and frustration felt by parents looking for meaningful results. Masey also noted there hasn’t exactly been a surge in special education enrollment after the cap was lifted. Heather Sheffield with Decoding Dyslexia suggested policymakers explore a way to enforce the Dyslexia Handbook developed by TEA.

Additionally, advocates asked for per-pupil funding for dyslexia, as well as having adequate instructional time and funding for both training and staffing. One advocate testified that training alone for a special education teacher can top $5,000. ATPE Lobbyist Monty Exter thanked the committee for the work done last session to address the cap, as well as funding weights for special education. Exter drew the committee’s attention to districts’ ability to provide external services already. While therapeutic and educational services are both available, the primary focus of special education should be on educational services, and any therapeutic services covered by district or state funds should be in furtherance of the educational objectives.

Expenditures working group addresses special ed

The Texas Commission on Public School Finance working group on expenditures led by state Rep. Dan Huberty (R-Houston) met Friday at the Texas Capitol to discuss special education spending.

As he testified in Thursday’s meeting of the full commission, Texas Education Agency (TEA) Chief School Finance Officer Leo Lopez testified the total state special education allotment in fiscal year 2018 is estimated at over $3 billion. This allotment is distributed according to subordinate weighted funding calculations for different instructional settings and is tied to contact hours. This year, 490,000 students are enrolled in special education, marking an increase of 40,000 since lawmakers ended TEA’s de facto 8.5 percent cap on special education enrollment.

School finance commission working group on expenditures meeting May 4, 2018.

Steven Aleman with Disability Rights Texas (DRT) and Kristin McGuire with the Texas Council of Administrators of Special Education (TCASE) testified that special education is a service, not a place. Furthermore, they testified that the current weights are outdated and the funding formula is not transparent. McGuire said inclusive settings are almost always the most desired outcome, but the system is not set up with this in mind. The current funding weights haven’t been updated since 1993.

McGuire noted that many dyslexic students are not receiving adequate services, and the State Board of Education (SBOE) is in the process of updating the dyslexia handbook. Commission and SBOE Member Keven Ellis (D-Lufkin) confirmed the board hopes to finalize a new handbook in the fall.

Aleman suggested reducing the number of steps involved in calculating special education funding, which could save districts money currently spent on consultants need to aid in navigating the funding process. Aleman also suggested undertaking a systemic study of the costs of weights, settings and services, and suggested weights should be updated. Additionally, the state should move toward a service intensity-based funding system, as opposed to a setting-based system, and should extend special education services to students with disabilities that are currently classified differently, such as under Section 504.

Responding to questions from the working group members regarding the true cost of special education services, McGuire said advocates nationwide have struggled to get a concrete handle on the subject. Huberty indicated that advocates need to offer hard numbers if they believe additional funding is necessary.

Justin Porter, Executive Director for Special Populations at TEA, responded to a number of questions from the board. Porter testified that children struggling with reading or math who may not have exhibited a clear disability and are currently served through interventions would be the most likely population to comprise a majority of students entering the special education program as a result of doing away with the special education cap. Huberty noted these would likely be students with dyslexia, autism or related disorders. Dyslexic students are served by the special education system in many other states, but that is not the case in Texas.

Porter testified that absentee rates among special education students could anecdotally be attributed to services outside of the public school setting, such as medical procedures, and indicated that untethering funding from daily attendance for special education students may be worth consideration. Working group members also asked TEA for a breakdown of the sources of funding used to provide transportation to special education students.

Regarding Section 504, Porter said TEA has no authority over 504, but is trying to offer more guidance to school districts in this area. Porter suggested 504 protections are generally offered to students in need of a variety of accommodations, such as those suffering from food allergies.

Huberty concluded by suggesting that providing resources for parents to spend outside the classroom may be more effective than increasing resources in the classroom, and suggested advocates bring more solutions to the table.

TEA seeking public input on special education plan

The Texas Education Agency (TEA) announced Tuesday it is accepting public comments on the draft strategic plan for special education through noon, April 18.

As reported previously at Teach the Vote, the agency released its Draft Special Education Improvement Plan and Corrective Action Response last month to fix critical failures in the state’s special education system. The draft plan varies little from an initial draft the agency circulated in January, and the agency is seeking additional input on the latest version. You can e-mail feedback to TexasSPED@tea.texas.gov.

The plan carries a $211 million price tag, which does not include a substantial cost anticipated to be incurred by local school districts. The districts will be expected to perform the bulk of the work meeting the needs of children who were wrongfully denied special education services in the past due to districts’ following a TEA directive to limit special education enrollment. Because of this funding challenge, many school administrators are warning they will need additional financial support from the state in order to properly serve qualifying children. The Texas Council of Administrators of Special Education (TCASE) noted this in a press release last month, saying the TEA plan “is rich with school district monitoring and compliance measures, but fails to offer adequate financial and other support to districts.” Read the full TCASE press statement here.

The TEA will aggregate feedback and send a final version of the special education improvement plan to the Office of Special Education Programs (OSEP) at the U.S. Department of Education by April 23, 2018.