Is special education instruction by a paraprofessional legal?

Recently, I was asked this (not so) hypothetical:

“4th grade child has an IEP (high functioning Down Syndrome) and is placed in a life skills classroom. There is one special education teacher and seven aides rotating through the classroom.  Reading and math instruction is being solely taught by an aide with the teacher touching base with the child once a week for this instruction. Are there any laws or regulations that say direct instruction can be delivered by a paraprofessional?”

Here is my analysis and answer:

A State may only receive federal funding for special education under IDEA if: “The State educational agency has established and maintains qualifications to ensure that personnel necessary to carry out this subchapter are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A).

“The qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that— (i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; (ii) ensure that related services personnel who deliver services in their discipline or profession meet the requirements of clause (i) and have not had certification or licensure requirements waived on an emergency, temporary, or provisional basis; and (iii) allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, in meeting the requirements of this subchapter to be used to assist in the provision of special education and related services under this subchapter to children with disabilities.”  20 U.S.C. Sec. 1412(a)(14)(A) (emphasis added.)

So, first, paraprofessionals in the special ed environment (implementing an IEP) must be properly certified in the discipline they are teaching.  This is true for reading and math.  You must look to the State’s education code on who has the proper certification and/or licensing to meet this certification requirement.

They must also be appropriately TRAINED and SUPERVISED.

What does “trained” mean?

All special education teachers must be HIGHLY QUALIFIED.

“Each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school is highly qualified.”  20 U.S.C. Sec. 1412(a)(14)(C); 20 U.S.C. Sec. 6319(a)(1).

This is especially true for core academic subjects.  20 U.S.C. Sec. 6319(a)(2).

For paraprofessionals (aides), specific requirements are set forth in the No Child Left Behind Act.

“Each local educational agency receiving assistance under this part shall ensure that all paraprofessionals hired after January 8, 2002, and working in a program supported with funds under this part shall have— (A) completed at least 2 years of study at an institution of higher education; (B) obtained an associate’s (or higher) degree; or (C) met a rigorous standard of quality and can demonstrate, through a formal State or local academic assessment— (i) knowledge of, and the ability to assist in instructing, reading, writing, and mathematics; or (ii) knowledge of, and the ability to assist in instructing, reading readiness, writing readiness, and mathematics readiness, as appropriate.”  20 U.S.C. Sec. 6319(c) and (d).

What does “supervised” mean?

Again, the No Child Left Behind Act explains the duties of a paraprofessional (aide).   20 U.S.C. Sec. 6319(g).

“A paraprofessional may not provide any instructional service to a student unless the paraprofessional is working under the direct supervision of a teacher consistent with this section.”  20 U.S.C. Sec. 6319(g)(3)(A).

The question is whether the special ed teacher checking in once a week is appropriate direct supervision.  This will depend on the facts of what the teacher means by “touching base” with the student.  In other words, is the teacher ever observing or monitoring how the aide is providing instruction?

Conclusion

So, can paraprofessionals teach core subjects under an IEP?  Maybe, but doubtful.  (1) They must be properly certified; (2) “highly qualified”; and (3) properly supervised.  Investigation into the facts of each case will determine if these three required elements are being satisfied.

Sorry to give the age old lawyer answer of “it depends”, but each case can be different and the only way to give a definite answer is by what the detectives on Dragnet always said, “Just the facts, ma’am, just the facts.”

 

 

10 thoughts on “Is special education instruction by a paraprofessional legal?”

  1. My question is as a paraprofessional in Texas, can I be left in a classroom without a teacher all day,even with instructions? And how long can a para be left alone without a teacher present?
    Thanks

    1. Unfortunately, this is a state law question and I am not licensed in TX. I also can’t provide legal advice here, but it does not sound right to leave a para alone in a classroom for other than a very short period (like an emergency). I assume that you don’t have a teacher’s license. I would look into state law on classroom requirements and I would also look at the IEPs of the students in the classrooms. Good luck.

  2. I apologize if I have hijacked another thread. I can’t figure out a way to begin a new topic.

    Short story is, due to staffing issues, even during Covid where things are virtual (SMH), my special ed teacher for two classes was pulled to run a new self contained unit. In one class, I started with a special ed teacher replaced by a special ed teacher replaced by a long term sub then replaced by another long term sub. It was enough to make my head spin. Four special ed resources in three weeks. My second class is now staffed every other day by a special ed teacher and a paraprofessional.

    My question is this… can service hours be met when the services hours are provided by a paraprofessional half of the time and a long term sub (unlicensed, her licensed lapsed a long time ago) Neither one of them has experience or training in my subject area – 7th grade language arts. Both parties are expected to be with me for the year. This isn’t a temporary fix.

    I know things are muddied because of Covid and IEP addendums and I don’t know how this is supposed to look when we return for a modified schedule. I know that I only get to see a two page profile sheet, not the IEPs. I asked the principal the question about the para and long term sub and got quite a song and dance which makes me REALLY believe it’s wrong since he wouldn’t answer directly.

    1. From your post, I assume you’re a teacher and not a student. I can’t speak to your specific situation, but I can offer the following. When the No Child Left Behind law was amended, it got rid of the requirement of “highly qualified teachers” for special education. What that did was leave it up to the states to determine the necessary qualifications for providing special education and related services. Many states require that special education teachers must have a certification in special ed, not just a general teacher’s license. Paraprofessionals may provide certain services, but that is also determined by state law. You may consider consulting with a lawyer in your state to determine the specific laws that apply. I hope that helps.

  3. Im in Pa and my girlfriend is a para. I’m frustrated for her learning that she is often left alone with aggressive students, those students are disrupting class so she has to take them elsewhere (alone) and recently told by Principal, There are no teacher subs available, it’s up to the paras to run class. This happen before covid and is currently happening in Virtual setting. Is it really the responsibility of a Para to run the classroom when there are no certified teachers to cover a class? I can see if it happens once, but multiple times? She is asked not to take it further because “the school can outsource them if they make waves”. Currently they will have students coming back, they are told to stay 3-6 ft away from students, they are not allowed to sit at desks and must be walking around the room to help students. There are 6 1:1 Paras, 6 students and 1 teacher in a room. How can proper distance be maintained if they are all walking around? (You dont have to answer that one..that’s just a common sense thought) None of this sounds right to me. Any help/direction would be appreciated. (I put her email in the box)

    1. In general, a para should not be running a class. My understanding is that even in PA a certified teacher must be running the class. There are also whistleblower laws that protect individuals like this para for complaining to authorities about violations of the law. And there are also laws against retaliation. I cannot give you specific legal advice as to what she should do [I don’t do that in a blog post and my PA license is currently inactive], but I STRONGLY RECOMMEND you contact a school law attorney in PA to protect her rights. Try wrightslaw.com and they have a directory or copaa.org and their directory. Good luck to the both of you.

      1. As a Resource Sped. para. I’m being told to do reading assessments on our students with IEP’s using the Fountas and Pinnell assessment tool. I have always been told that Para’s should never do any assessments. I told the teacher that I didn’t feel qualified or comfortable doing these assessments. Now I have to have a meeting with a district program specialist to help me understand why I’m wrong. Help please!!! I’m in California.

        1. I cannot offer you legal advice, but I would strongly suggest speaking with your union representative (if you are a member of the union) and/or an outside education attorney to protect your rights. If you are fired as a result of this scenario, consider consulting with an employment attorney for violation of whistleblower laws and/or retaliation. I am not licensed in California and am not familiar with the laws there, so you would need to find an attorney licensed in California. Good luck and I’m sorry this is happening to you.

  4. I’m a special needs para in WA. We have up to 5 students per 1 para.. We are FULLY running and TEACHING class for roughly 5+ hours a day in front of a large screen WITHOUT teacher supervision. We take students (1 para and 4-5 students) some with physical dissabilities out into the community and 1-2 hour job sites (2 students only for job sites) alone as well. We were recently told that this is the way things will be run from here on out. With much less community outings. This was happening prior to Covid as well. Teachers are scrambling days before IEP’s to get info on those students. And looking to us para’s for that info.We feel we have become the TEACHERS. And we are not the teachers.(2 teachers 15+ students. Teachers most often in office doing zoom with now only 3 students. 2 separate buildings. Left with 1 available teacher at times). Most of us are NOT comfortable with this. In that recent meeting were told if we didn’t like it contact a higher up. Problem with that is teachers are very close to higher up person.
    Where do we go from here?

    1. While I cannot offer legal advice to you on this blog and because you are in WA, I do recommend you talk to a special ed attorney out there to get advice. You may wish to work with the parents of the kids in your classes, as it is the kids and their parents’ rights at issue. If you have a union, I would recommend speaking to your union representative and/or union lawyer. You need legal advice!

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