SPECIAL EDition — Winter 2002

graphic design of school children raising their hands with school houses in the background

TEA Special Education Rules

TEA Special Education Rules out for Public Comment

A new set of state rules regulating special education services are now officially posted for public comment. The rules, once adopted, will become part of the Commissioner's Rules Concerning Special Education. New rules are needed to: implement changes made to state law during the most recent session of the Texas Legislature; comply with changes made to IDEA in 1997; or clarify current rules and/or practices. The proposed rules were drafted by the Texas Education Agency after conducting a series of "stakeholders' meetings" for input. COMMENTS ARE DUE TO TEA BY FEBRUARY 20.

There are three ways to give your comments: 1) online at TEA's website; 2) in a letter to TEA; or 3) by testifying at a public hearing. To see a copy of the proposed rules, go to TEA's special education website at http://www.tea.state.tx.us/special.ed/. There you will find a link to the Commissioner's Rules for Special Education (proposed). At that link you will also find a schedule of the public hearings and an online comment form. There will be a public hearing at each Education Service Center. You can find the same information and links at Advocacy Inc.'s home page, www.advocacyinc.org. The proposed rules are also in the December 21, 2001 Texas Register.

The proposal changes rules on issues important to students and families, including: graduation; parental rights of students at age 18; IEP meetings; and due process hearings. The most significant proposals are those establishing rules regulating the use of physical restraint and time-out. Until now, any policies on the use of restraint or time-out were left to individual districts. For the most part, these practices were unregulated. Reports of misuse of time-out and restraint finally reached the Texas legislature. As a result, the legislature passed a state law that directs the Commissioner of Education to develop and adopt by rule procedures for the use of both physical restraint and time-out. Texas law requires these rules to be consistent with:

  1. professionally accepted practices and standards of student discipline and techniques for behavior management;
  2. relevant health and safety standards; and
  3. to identify those practices and techniques which require training before use.

As proposed, the use of physical restraint would be limited to only emergency situations. Each campus would have to identify and train those individuals able to administer physical restraint in emergency situations. The training would have to incorporate professionally accepted practices and standards, including prevention and use of de-escalation techniques. Parents would be notified of any use of restraint.

Use of time-out would still be permitted, but persons using it would be required to receive training on an array of positive behavior interventions. Time-out would need to be addressed in either the student's IEP or BIP (Behavior Intervention Plan). The ARD committee would be responsible for deciding what information was needed to determine whether time-out had been effective and whether its use should be continued.

The rules governing use of locked seclusion restate the state law which bans that practice. State fire codes also prohibit placing someone in a space from which he cannot exit.

Adoption of rules governing time-out and restraint will give students in Texas public schools the same protections as children in other settings where restraint and time-out are already regulated. In addition, the required training on positive behavior interventions should assist more schools in implementing the system of positive behavior supports required by the IDEA. Too often, behavior management plans have been little more than a list of consequences to be applied when the student misbehaves rather than a plan for teaching and supporting desired behaviors.

Parents and advocates are encouraged to carefully read all of the proposed rules and to offer comment in writing or by attending a hearing. It is important to identify those items you support, not just those you oppose or would like to see changed. With the adoption of these rules for use of time-out and restraint, Texas has the opportunity to take an important step forward towards making schools a positive and safe place to be for all students. The limitations on the use of physical restraint, and the accompanying training requirement, will also protect staff from injury.

Parents who have experience with the due process system might also want to look closely at the last of the proposed rules (Sec. 89.1152. Presentment) which would prevent parents from raising any issue in a hearing they had not previously raised at an ARD meeting. Most parents do not have an attorney during the ARD process and do not know their rights at that point. OSEP has previously held that similar requirements in other states violated the IDEA. Parents who have been through due process are encouraged to provide comments on the impact of the proposed rule. This was the only issue in the proposed rules not presented at the stakeholders' meetings for discussion.

SPECIAL EDition, Winter 2002