Special Education and Section 504
Even if you are not a special education teacher, you need to know about special education because many students receiving special education services are placed in general education classes.
A student is eligible for modifications to instruction, discipline, or placement under either the federal Individuals with Disabilities Education Act (IDEA) or Section 504 of the federal Rehabilitation Act of 1973 if:
- The student has a disability; and
- Is unable to benefit from the regular educational program without modifications.
The term "special education" generally refers to programs offered under the IDEA, which requires that all students who have a disability specified in the law receive a “free and appropriate public education” (FAPE). Students are eligible for federally funded special education services under IDEA if they have one of a number of specific disabilities.
IDEA, along with the state regulations that define how Texas implements the federal requirements, establish a very specific process for how a student is identified and tested and how modifications to instruction, discipline, or placement will be determined and changed.
Section 504 prohibits discrimination based solely upon disability in any program receiving federal financial assistance.
Students who have a condition meeting the general definition of a disability but who do not fall into one of the IDEA categories might be eligible for accommodations under Section 504. Such accommodations might include modification of instruction, grading, or placement.
Unlike IDEA, Section 504 does not describe a specific procedure for identifying disabilities and deciding on accommodations. Instead, school districts set their own policies, but most use a process very similar to that used for special education students.
The procedures outlined below are applicable to IDEA, but many districts use a similar process for Section 504.
What if you think a student may need special services?
Students must be assessed to determine if special instruction or related services are necessary for the student to benefit fully from the educational program:
- When the student is suspected of having a disability.
- After a referral of assessment is made by a classroom teacher or other source (any person with reason to believe a student might need special services can refer that student for testing).
- Within 60 days from the date the referral was initiated.
- With consent from the parent or legal guardian.
- According to very particular procedural protections for the student and parents.
- At the school’s cost.
How are placement and services determined?
- Admission, review, and dismissal (ARD) committees make all decisions concerning: whether a student is eligible for services; the placement or setting in which the student will receive those services; at what point the child no longer needs special education; and, at least initially, what specific services the student needs.
- An ARD committee is composed, at a minimum, of a student’s parents, an administrator, a representative from special education, and a regular education teacher if the student will be educated in the regular setting. In some circumstances, there may be additional members. Other nonvoting participants may be included if they are needed to provide helpful input.
- ARD committees develop an individualized education program (IEP) for each student. An IEP sets out goals for a particular student and specifies how those goals will be met. It may also include instructions for special therapy services, adaptive technology, modified class work, or a special behavioral intervention plan (BIP). If a student’s class work needs to be modified, those modifications must be initially developed through the ARD process and placed in the IEP.
Where should students with disabilities be educated?
- IDEA presumes that students with disabilities will be educated with their peers without disabilities in the least restrictive environment (LRE) that is appropriate. (This is where the concept of inclusion comes from.)
- Districts must provide supplementary aids and services necessary to make placement with peers without disabilities possible, such as computer-assisted technology, special furniture, a modified curriculum, training for the teacher, or provision of a special education teacher or aide—in short, whatever device or service is necessary for the satisfactory implementation of the IEP in the regular classroom setting.
- When a student is placed in a more restrictive setting, the district must be able to show that the regular setting was not appropriate for implementation of that student’s IEP.
- If the education of the other students in a class would be significantly impaired by the presence of a particular student with a disability, then that class is not an appropriate placement for that student. However, consideration first must be given to all supplementary aids and services that might accommodate the student in that setting.
- An IEP is an official document developed by an ARD committee that records all aspects of a student’s educational program.
- An IEP should include, at a minimum, annual goals, short-term instructional objectives, and all special education and related services to be provided to a particular student.
- Districts are responsible for seeing that all aspects of IEPs are properly implemented.
- Teachers are required to follow the modifications set forth in IEPs.
Each teacher of a student with disabilities should be given relevant sections of that student’s IEP.
Special education law
In general, special education law creates the presumption that it isn’t fair to punish a student for actions the student couldn’t control due to a disability. The law requires that students’ disabilities be taken into account in the discipline decision-making process.
- Only a special education student’s ARD committee can make a permanent change in that student’s placement in a school.
- There is no absolute limit as to how many days a special education student may be removed from their current educational placement. Although the original 10-day rule is no longer in effect, it is likely still a required district practice to use that standard when deciding when an ARD should be called. However, no later than 10 days after the child’s cumulative removals first exceed 10 days, the ARD must meet to: (1) conduct a functional behavior assessment if one has not been done already, and (2) create or review the behavior intervention plan (BIP) for modifications to address the behavior.
- The procedural protections of IDEA kick in when the removal would be considered a “change in placement.” An ARD must be held if there is a change in placement, which is defined as: (a) a single removal of more than 10 consecutive school days; or (b) a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year. Factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another are also factors that contribute to a "pattern."
- When an ARD committee considers a student’s removal, it must consider whether the behavior was caused by or had a direct and substantial relationship to the student’s disability or whether it was caused by the district's failure to follow the student's IEP. If the committee determines the behavior was not caused by one of the factors, the district can remove the student so long as similar behavior by a regular education student would also result in that student’s removal. However, if the committee determines the behavior was caused by or had a direct and substantial relationship to the student’s disability or was caused by the district's failure to follow the student's IEP, it must review the student’s BIP if one exists or create one if appropriate. The ARD committee can also determine that a different placement would be appropriate.
- Districts can place special education students in disciplinary alternative education programs (DAEPs) only for conduct that would require regular education students to be expelled or placed in a DAEP.
- A special education student must continue to receive appropriate services in the new placement, including a DAEP.
- A district can remove a special education student from their current placement for up to 10 days without an ARD committee meeting.
- A district can remove a special education student from current placement for up to 45 school days if it has clear and convincing evidence that the student:
- Possessed a weapon, as defined by law, at school.
- Possessed illegal drugs at school.
- Inflicted serious bodily injury at school or at a school-related function.
Discipline other than a change in placement
- Generally, special education students who commit student conduct code infractions that don’t rise to the level of an offense for which removal is appropriate should be disciplined according to the regular code of conduct. The only exceptions are when the student has a BIP as part of their IEP or when the behavior was a manifestation of the student’s disability.
- The BIP outlined in the IEP governs the discipline techniques that can be used with that particular student.
- If the ARD committee determines that the misconduct was caused by the student’s disability or the district's failure to implement the IEP, then the student may not be disciplined for that conduct. In this instance, only the ARD committee has the authority to implement modifications in the student’s IEP or BIP (except for certain drug-, weapon- and assault-related offenses).
- IDEA requires districts to show there is a legitimate educational purpose before changing special education students’ placement or educational programs.
- If a student’s parents disagree with a change, they can request mediation or a hearing with the Texas Education Agency (TEA).
- If the parent disagrees with a proposed change, the district can still make the change while the parent contests the decision. The old "stay put" rule no longer exists.
Other ways to address a student's behavioral problem
If a student has persistent behavioral problems related to a behavioral disability, the ARD committee should evaluate whether the district is providing sufficient supplementary aids and services to enable the student to obtain an appropriate education. Efforts to accommodate a student who has a behavioral disability could include the following:
- Development of a BIP specifically tailored to address the student’s particular disability.
- Training for the teacher in behavior intervention and behavioral disabilities.
- Consultation with a behavioral specialist regarding the student’s disability and implementation of the student's BIP.
- Coordination of behavior intervention strategies among all personnel who work with the student.
- Cooperation with the parents in terms of communication and follow-through on behavior intervention.
- Counseling and psychological services for the student.
- Provision of an aide to assist with meeting the student’s needs.
- Instructional strategies provided by itinerant special education teachers or resource classes.
- Reducing the ratio of students to instructional staff.
Special education law is designed to protect students’ rights; therefore, the parents of special education students can be educators’ greatest allies or most difficult foes. Parents are often dealing with personal issues that can lead to distrust of educators’ motives. For that reason, it’s especially important for educators to have the best relationships possible with students’ parents.
- Keep parents well informed of their child’s progress. A parent who hasn't been informed about problems as they arise and therefore doesn’t know problems have existed for some time may feel an educator simply isn’t being patient if the first notice isn’t until the change is being contemplated. Also, an educator should keep parents informed of all behavioral intervention techniques used with the student as well as the techniques' effectiveness.
- Share positive comments about the student with the student’s parents. This shows parents that the educator is being fair and will make parents less likely to become defensive when confronted with a problem.
- Read each student’s IEP and BIP. These documents are “the law” as far as that student is concerned and must be followed, even if an educator disagrees with the services or modifications. Every teacher dealing with a special education student is entitled to relevant portions of that student’s IEP or BIP.
- Document students’ progress and problems. Documentation shows the extent of problems and how an educator has tried to solve them. Good documentation is essential because when a change in a student’s placement is needed, the district must be able to prove the change is necessary.
- Description of the behavior
- Any triggering influences
- Steps taken to correct the behavior
- The student’s reaction to the correction
- Amount of time taken to handle the behavior and the frequency with which it occurs
- Effect on the student's learning
- Keep both the parents and the administration informed of students’ discipline problems. A teacher can’t make a change regarding a special education student on their own. The teacher needs the cooperation and assistance of both the administration and parent. If they’ve been included and know the teacher has tried to make the situation work, they will be more likely to support the teacher’s opinion that a change is necessary.
- Request an ARD committee meeting when a change is needed. Only a student’s ARD committee can change the student’s placement, services, or discipline management plan. A teacher has the right to request an ARD committee meeting but can’t force the committee to convene. This is another reason documentation is important: to convince the administration and parents that an ARD committee meeting is needed.
In order to promote student safety, on the request of a parent, school board trustee, or staff member, a school district or open-enrollment charter school must install and operate video recording equipment in a self-contained special education classroom in which the majority of the students are receiving special education services. The requesting staff member may be either a teacher or aide who is assigned to the classroom or a campus administrator on the campus.
The video recording must include audio as well as an image.
Individual school districts must adopt policies regarding the use of the video equipment. These policies must include:
- The procedures for requesting video surveillance.
- The procedure for notifying staff, parents, and students who will be assigned to a room containing video surveillance equipment, including a notice at the entrance to any classroom.
- A requirement that video equipment operate at all times during the instructional day when students are present in the room.
- A requirement that video surveillance continue as long as the classroom continues to meet the criteria established for surveillance.
- A description of who can view the recordings and the role of each individual allowed to view the recordings.
- A requirement that recording capture all classroom areas except bathrooms or toileting areas.
- A requirement that recordings be retained for at least six months.
- A prohibition against use of recordings for routine teacher evaluations, though the recordings can be used as evidence related to a specific allegation against an educator.
- The procedure for registering a complaint or allegation that an incident occurred in a classroom containing video equipment.
- A statement that the video is confidential and a description of the circumstances in which it could be viewed.
- A staff member or the parent of a student involved in an incident for which a complaint has been reported.
- Appropriate peace officers, Child Protective Services representatives, administrators, and TEA or State Board of Education personnel as a part of an investigation into an incident.
Published/reviewed: March 17, 2021
The legal information provided here is accurate as of the date of publication. It is provided here is for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.