Tuesday, May 23, 2017

TCEP Policy Brief: Abolishing the Arbitrary 8.5 Percent Cap for Identification and Enrollment of Students for Special Education Services in Texas

Happy to share another Texas Center for Education Policy brief that is germane to a bill that is currently sitting on Governor Greg Abbott's desk.  Senate Bill 160 is about a scandalous under-reporting in Texas of students qualified to receive Special Education Services.  You may have read some of the writeup on this in the Houston Chronicle last fall.  Education Policy and Planning Masters student, Rob Walker, does a great job in capturing not solely the travesty, but also the importance of a solution through statute.  You may also link to this piece [pdf] here.

Angela Valenzuela

Policy Brief

Abolishing the Arbitrary 8.5 Percent Cap for Identification and Enrollment of
Students for Special Education Services in Texas


Robert Walker, Research Assistant

Texas Center for Education Policy

The University of Texas at Austin

May 23, 2017

Executive Summary

            Currently at play in the 2017 85th Texas Legislative Session is Senate Bill 160 (SB160), authored by Senator José Rodriguez and co-authored by Senator José Menéndez, is a bill that is aimed at abolishing the 8.5 percent indicator or cap for identification and enrollment of students receiving Special Education services in Texas public schools.  With Senate Bill 160 currently on Governor Greg Abbott's desk awaiting his signature or veto, the purpose of this brief is to provide a brief history and policy context for the 8.5 percent performance indicator that was put in place by the Texas Education Agency (TEA) in 2004.  Specifically, this cap keeps the number of children enrolled in and/ or receiving Special Education services in all public school districts at or below an arbitrary 8.5 percent in order to avoid an over enrollment of students (Rosenthal, 2016a).

            According to surveys administered to Texas Special Education teachers, as well as listening sessions with teachers, administrators and parents conducted by the U.S. Department of Education, enforcement of the 8.5 percent indicator has led to several thousands of students not receiving services to which they are entitled under the law (Texas American Federation of Teachers, 2016). It was further found that under the cap, English Language Leaners (ELLs) were the most at risk to not receive services to which they would have otherwise been due in the absence of it (Rosenthal, 2016c). In order for every child that has special needs to receive the services that they require to be academically and socially successful, Governor Abbott must sign Senate Bill 160 into law.

Abolishing the Arbitrary 8.5 Percent Cap for Identification and Enrollment of
Students for Special Education Services in Texas


Robert Walker

Brief History and Policy Context
            Since the passage of the Individuals with Disabilities Education Act (IDEA) of 1975, any school-age child with a disability, whether they have a visual-, auditory-, physical-, mental-, emotional- and/or learning-related disability is to receive full access to a district’s Special Education services. (IDEA, 1975). Yet, despite this being the law of the land, the Texas Education Agency (TEA) implemented an 8.5 percent performance cap in what many believe to be an effort to avoid the costs of providing Special Education services (Rosenthal, 2016a). Texas currently has the lowest percentage of enrolled Special Education students in the nation (Rosenthal & Carrol, 2016). Districts have had to meet this indicator or cap to be labeled as being compliant with the TEA standards listed in the Performance Based Monitoring Analysis System (PBMAS) (Texas Education Agency, 2004).  PBMAS was implemented under state education commissioner Shirley Neeley Richardson and continued under the current education Commissioner Mike Morath. If districts provided Special Education services to more than 8.5 percent of their student population, they were labeled as guilty of over enrolling students and were subjected to corrective action plans. These corrective action plans included school and administration restructuring, fines, and in some cases, direct takeover of the supervision of Special Education enrollment in the district by the state (Texas Education Agency, 2004).

            The cap was instituted in 2004 after the TEA’s budget was cut by $1.1 billion in 2003  which led to the agency laying off 15 percent of its staff (Rosenthal, 2016a). From available evidence, the indicator was an attempt to save school districts money (Rosenthal, 2016a; 2016b). The TEA has said that the indicator was not meant to be cap on the number of children receiving legally mandated services, but worked instead to identify if a particular category of student fell outside given indicators (Texas Education Agency Full Statement to Chronicle Questions, n.d.).

            The TEA also denies that there has been any observable drop in Special Education enrollment across Texas public school districts and maintains that no student has been denied services (Texas Education Agency Full Statement to Chronicle Questions, n.d.). It is the TEA’s position that the PBMAS and the indicators written within it, were created with the collaboration of experts in Special Education and is in full compliance with IDEA (Texas Education Agency Full Statement to Chronicle Questions, n.d.).

            Despite the assertion by TEA officials that there is overwhelming evidence showing that there has not been a significant decrease in the enrollment of students in educational services across the state, the evidence suggests otherwise.  According to a Houston Chronicle investigation that took place in Fall, 2016, the percentage of identified Special Education students in Texas decreased significantly from 11.67 percent in 2004 to 8.5 percent in 2015 (Rosenthal, 2016a). The following is the exact decrease in percentages  types of special needs services in Texas since the implementation of the cap: There was a 46 percent decrease in the amount of services to children with learning disabilities; a 42 percent decrease in emotionally and mentally disabled children served; a 39 percent decrease of children with orthopedic impairments served; a 27 percent decrease of children with speech impediments served; a 20 percent decrease of children with brain injuries served; a 15 percent decrease in children with hearing impairments served; and an 8 percent decrease of students with visual problems served (Rosenthal, 2016a; Rosenthal & Carrol, 2016).

            In an effort to comply with state regulations, school districts, including the Houston Independent School District, utilized a number of tactics to keep their students from receiving Special Education services. These tactics ranged from not offering testing for mental and learning disorders, distributing Special Education assessment forms geared to blaming other factors for mental- and learning-related disorder symptoms and, in general, creating a system where learning disorder test results were “re-examined,” meaning that they were subsequently characterized as being related to other factors (Rosenthal & Barnard-Smith, 2016).

 Under the cap, it was found that English Language Learners (ELLs) were the most at risk to not receive services (Rosenthal, 2016c).  ELL students’ special needs-related behaviors were often attributed to their lack of understanding of English by school officials (Rosenthal, 2016c). In addition, ELL’s family often did not how attain Special Education services for the child because of the language barrier (Rosenthal, 2016c).


            Though the TEA has held a press conference announcing that in the coming year, the 8.5 percent performance indicator would eventually be eliminated (Disability Rights Texas, 2017), the bill should still be made into law as changing the education code of the state will permanently stop any such cap from being implemented again. In addition, a statewide policy of providing parents at the start of each school year with a list of their rights in terms of getting access to   disorder testing and Special Education services, in general, should also exist.  This list, as well as all other subsequent Special-Education-related information, should be made available and distributed in all the languages spoken in each school district. Lastly, the TEA should monitor and report biennially on all Texas school districts’ provision of Special Education services to ensure that they are in compliance with federal law. 



Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (1975)

Rosenthal, B. M. (2016a, September 10). Denied: How Texas Keeps Tens of Thousands of Children out of Special Education. Houston Chronicle.  Retrieved from

Rosenthal, B. M. (2016b, November 9). Denied: Mentally ill Lose Out As Special Ed Declines. Houston Chronicle. Retrieved from

Rosenthal, B. M. (2016c, December 10). Texas Schools Shut non-English Speakers Out of Special E. Houston Chronicle. Retrieved from

Rosenthal, B. M., & Barnard-Smith, S. (2016, December 27). Denied: Houston Schools Systematically Block Disabled Kids from Special Ed. Houston Chronicle.  Retrieved from

Rosenthal, B. M., & Carrol, S. (2016, December 24). Denied: Unable to get Special Education in Texas, One Family Moved. Houston Chronicle. Retrieved from

Senate Bill 160 85th Legislative Session (2017). Bill History.

Texas American Federation of Teachers (2016). Texas AFT Special Education Survey. Austin, Texas: Charles Luke

 Texas Education Agency (2004) Texas Education Enrollment target. Retrieved from

Texas Education Agency Full Statement to Chronicle Questions [Interview]. (n.d.). Retrieved from

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