AUSTIN, Texas — Facing increasing criticism over its special education enrollment benchmark, the Texas Education Agency this month told schools that they must provide services to all eligible students with disabilities and that they will no longer be penalized for serving too many children.

In a five-page letter, Penny Schwinn, the agency’s deputy commissioner of academics, advised school districts that a federal provision known as “child find” requires them to locate and evaluate all kids who live within their boundaries who might qualify for services such as tutoring, counseling and therapy.

“A school district’s failure to meet the child find requirements is a serious matter,” Schwinn wrote. “Furthermore, the failure to identify a child may entitle the child to compensatory education or tuition reimbursement.”

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Schwinn told the districts that the TEA eventually would end the decade-old benchmark that has set 8.5 percent as the ideal rate of special education. And effective immediately, she wrote, exceeding the target would not “adversely affect” district performance levels or determinations about whether districts are audited.

A decade of audit threats related to the target has left Texas with the lowest rate of special education in the country. If the state was at the national average, more than 250,000 more students would be receiving services.

But as in the past, Schwinn also defended the policy, saying it was not a “cap” on enrollment and did not seriously punish districts for failing to comply.

“It has been alleged that some school district personnel and others may have interpreted the (benchmark) to mean that districts are required to achieve a special education enrollment rate of no more than 8.5%,” she wrote. “This interpretation is incorrect.”

The letter followed through on a promise to the U.S. Department of Education, which last month ordered the TEA to end the enrollment target and remind schools about the requirement to provide special education services to children with disabilities.

The department’s involvement, which is still ongoing, was prompted by a Houston Chronicle investigation that revealed the target and showed that the TEA had quietly implemented it in 2004 while facing a $1.1 billion state budget cut and without consulting state lawmakers, federal officials or any research.

No other state has ever set a target for special education enrollment.

In the years since the Texas policy took effect, the percentage of public school students in the state receiving services has dropped from near the national average of 13 percent down to 8.5 percent. That is the lowest in the country — by far.

Texas schools have used a variety of tactics to cut enrollment, including mass purges of special education rolls, the Houston Chronicle has found. Some districts have also delayed services by requiring teachers to go through a new instructional program called “Response to Intervention” (RTI) before requesting that a student be evaluated for special education. The federal government has explicitly condemned that practice.

In its letter, the TEA told districts that it would be “inconsistent” with federal law for a school to “delay an initial evaluation on the basis that a student has not participated in an RTI framework.”

The agency also announced it would create a new unit dedicated to providing additional technical assistance to districts struggling with special education laws.

But some advocates and lawmakers said the TEA’s message was undercut by its refusal to accept responsibility for the benchmark.

“TEA says it understands the complexities of schools differentiating between problems due to disability and other factors,” said Dustin Rynders, of Disability Rights Texas. “In reality, the complexity is deciphering the mixed messages TEA sends schools.”

“We welcome the reminder that schools should evaluate those suspected of needing special education, however TEA is the cause of the problem,” he added, arguing that “TEA has no credibility” because it “keeps trying to sell its preposterous story that the 8.5 percent indicator was not a cap or a goal for the percentage of students receiving special education, while offering no explanation for why they awarded their best performance level to districts that served fewer than 8.5 percent of students.”

Texas Senate Minority Leader José Rodríguez, who has introduced legislation to eliminate the benchmark permanently, said he also doubted the TEA and would continue to push the bill.

“This guidance from TEA would not have been needed if the agency hadn’t created this misguided performance indicator in the first place,” said Rodríguez, D-El Paso. “Yet the agency refuses to acknowledge that they contributed to a culture that incentivizes schools to keep their special education numbers down. I don’t think that culture will be changed by a letter, and I don’t have confidence that rulemaking via this agency will correct it. The legislature needs to step in.”

© 2016 Houston Chronicle
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