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.”

 

 

Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).