Special Education and Section 504

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 for special education, establishes a very specific process for identifying and testing students and how modifications to instruction, discipline, or placement will be determined and changed.

Students who have a disability may also be entitled to accommodations and other protections under Section 504 of the Rehabilitation Act of 1973, a federal civil rights law. Section 504 protects students with a physical or mental impairment that substantially limits one or more major life activities.

Section 504 and the Individuals with Disabilities Education Act (IDEA) are separate laws with different requirements. A student may qualify under IDEA, under Section 504, or under both laws. A student does not have to fall outside one of IDEA's disability categories to be protected by Section 504.

When a school district has reason to believe that a student has a disability and needs services or accommodations because of that disability, the district must conduct an appropriate evaluation before initially providing services or making a significant change in placement. The evaluation must be based on information from a variety of sources, and decisions concerning eligibility and placement must be made by a group of persons who are knowledgeable about the student, the evaluation data, and the available placement options.

If a student is eligible under Section 504, the school must provide the services, accommodations, or aids necessary to meet the student's educational needs as adequately as the needs of students without disabilities are met.

School districts and charter schools may establish their own procedures for identifying, evaluating, and serving students under Section 504, but those procedures must comply with federal Section 504 requirements. Because Section 504 requirements are different from IDEA requirements, teachers should follow their school's procedures for referring a student they believe may need an evaluation or accommodations under Section 504.

If you are a teacher who believes a student may have a disability that is affecting the student's ability to access or participate in the educational program, raise the concern with the appropriate campus or district personnel and follow the school's referral procedures. You do not need to determine whether the student qualifies under Section 504 yourself. Your role is to identify and communicate your concerns so that the appropriate personnel can determine whether an evaluation is warranted.

What should you do if you think a student may need special education services?

If you have reason to believe a student may have a disability and may need special education services, you should follow your district or campus procedures for referring the student for a special education evaluation. A referral may be initiated by school personnel, the student's parent or legal guardian, or another person involved in the student's education or care.

You do not have to diagnose a disability or determine whether the student will ultimately qualify for special education. Your role is to raise the concern and make sure it gets to the appropriate person or department for consideration.

Once a referral is made, several important legal requirements and timelines apply.

If a parent makes a written request for an evaluation, the district or charter school generally must respond within 15 school days. The response must include the appropriate notice and procedural safeguards and, if the school agrees to conduct an evaluation, an opportunity for the parent to provide written consent. A parent may also make a request verbally, although the 15-school-day response timeline does not apply to a verbal request.

Once the school receives the parent's written consent for the evaluation, the evaluation generally must be completed within 45 school days. Texas law provides exceptions to this timeline, including certain circumstances involving student absences and the timing of consent near the end of the school year.

The evaluation must be conducted by appropriately trained personnel and must address the areas of suspected disability and the student's educational needs. The process is subject to specific procedural protections for the student and the student's parents.

After the evaluation is completed, the student's initial eligibility for special education services is generally determined by the ARD committee within 30 calendar days of the completion of the evaluation report, subject to additional timing rules that may apply when the evaluation is completed near the end of the school year.

The evaluation is provided at no cost to the parent.

If you are a teacher who believes a student may need special education services, don't wait for the student to fail or for the problem to become more serious before raising the concern. Follow your campus or district's referral procedures and document the academic, behavioral, or other concerns that led you to make the referral. The purpose of the referral is to determine whether the student has a disability and needs special education and related services—not for the teacher to make that determination independently.

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
• 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.
• 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 individualized education program (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 considered in the discipline decision-making process.

Student removal

• 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 10-day-per-school-year limit on disciplinary removals of a student receiving special education services. However, the 10-day rule remains important. A removal of more than 10 consecutive school days, or a series of removals that constitutes a qualifying pattern totaling more than 10 school days in a school year, is a change of placement under IDEA. Once a student has been removed for 10 school days in the same school year, the district also has additional obligations to provide services during subsequent removals.
• 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 a student with a disability violates the school's code of conduct and the school decides to change the student's placement because of the violation, the school must conduct a manifestation determination review (MDR). The MDR must take place within 10 school days of the decision to change the student's placement. The purpose of the MDR is to determine whether the student's conduct was related to the student's disability or resulted from the school's failure to implement the student's IEP.
• A student who has been removed from school for disciplinary reasons for more than 10 school days may be entitled to an MDR, but 10 days of removal does not automatically mean that the student's placement has changed. A series of removals that totals more than 10 school days may constitute a change of placement if the removals form a pattern. In determining whether a pattern exists, the school must consider factors such as the length of each removal, the total amount of time the student has been removed, the proximity of the removals to one another, and the similarity of the student's behavior across the incidents.
• Because these determinations can be fact-specific, teachers should not assume that an MDR is or is not required simply because a student has accumulated a particular number of disciplinary removals. If you are involved in disciplining a student receiving special education services, follow your district's special education and disciplinary procedures and promptly involve the appropriate special education personnel when required.
• 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.

Emergency situations

• 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).

Students’ rights

• 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).
• When a parent files a formal due process complaint, the student generally must remain in their current educational placement unless the parents and the district agree otherwise. However, this “stay put” rule does not apply to simple IEP disagreements and features specific exceptions for disciplinary actions and appeals.

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—which means 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 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 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.

1. Description of the behavior
2. Any triggering influences
3. Steps taken to correct the behavior
4. The student’s reaction to the correction
5. Amount of time taken to handle the behavior and the frequency with which it occurs
6. 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 cooperation and assistance from 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.

To promote student safety, a school district or open-enrollment charter school must provide video equipment, including cameras, when it receives a written request from an authorized person. Cameras must be placed, operated, and maintained in certain special education classrooms and other special education settings. The current law no longer uses the former "self-contained classroom" terminology. Generally, a covered setting is one primarily used to provide special education services to students who spend, on average, less than 50% of the instructional day in a general education classroom or setting.

The people who may make a written request for video equipment include:

A request by a parent or staff member generally applies to the classroom or setting in which the parent's child regularly attends or to which the staff member is assigned. A board, governing body, principal, or assistant principal may request cameras for specified classrooms or settings.

The cameras must be capable of recording both video and audio and must cover the areas of the special education classroom or setting, including an attached room used for time-out. The inside of a bathroom or an area where a student's clothes are changed may not be visually monitored, except for incidental coverage of a minor portion of the area because of the layout of the classroom or setting.

School districts and charter schools must adopt policies concerning the placement, operation, and maintenance of the cameras. Those policies must address matters including:

A district or charter school may not allow regular or continual monitoring of recordings. The recordings also may not be used for teacher evaluations or for purposes other than promoting the safety of students receiving special education services in the covered classroom or setting.

Who can view the recordings?

Video recordings made under this law are confidential and may be released or viewed only in circumstances authorized by the statute, FERPA, or other applicable law. The statute requires a district or charter school to make a recording available for viewing by:

The law also addresses situations in which an authorized person who views a recording believes it documents a possible violation of law or district policy. For example, certain viewers must notify the Texas Department of Family and Protective Services if they believe the recording documents possible child abuse or neglect. A recording believed to document a violation of district or school policy involving the neglect or abuse of a student may be used in disciplinary action against district or school personnel and must be released at the request of the student's parent in a legal proceeding.

A contractor or employee performing duties involving the installation, operation, or maintenance of the video equipment, or the retention of recordings, does not violate the confidentiality requirements merely by incidentally viewing a recording while performing those duties.

How long are recordings retained?

A school district or open-enrollment charter school must retain recordings for at least three months after the date they were recorded. If an authorized person requests to view a recording, the district or charter school must retain the recording while the request is pending and, if the recording documents an alleged incident, until the incident has been resolved, including the exhaustion of appeals.