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.”
When a teacher is called out of class to attend an IEP, is it lawful for the attending paraprofessional to supervise that class until the regular educator returns from the meeting?
This may depend on your particular’s state’s rules on classroom management / substitutes. This isn’t legal advice, but I would give the school the benefit that the teacher attending an IEP meeting is helping another student with a disability and that the paraprofessional handling the class for that short period of the meeting is understandable and should be tolerated. If it is a regular occurrence, then likely no.
No, there should always be a certificated staff in the room. That could mean a para with a Sub certification in your room. Hope that helps.
That is not entirely accurate, at least not for all states. Different states have differing qualifications requiremenets as to the teaches and staff in a classroom and what certifications meet those requirements. So the answer is it depends on state law. If you are not a lawyer, you should not be giving legal advice or information.
How do I find the law for my state, Washington’s ? I looked on the state education site and I found nothing.
You won’t find it there. Special education law is federal law, not state law. It applies to all 50 states the same. I just wrote a blog on this very issue, which you can read here: https://schoolkidslawyer.com/2023/12/14/special-education-law-is-federal-law-not-state-law/
What are the laws in the state of Montana if a Dr ordered the school to have a paraprofessional for a child but they say they are unable to get one.
What can the parent do??
A physician is not authorized to order a school to do anything, regardless of a state law. A school will follow an IEP which is a contract between the school and the family with the child with a disability. Thus, a parent can submit the doctor request and request a paraprofessional at an IEP meeting. If the IEP Team (including the parent) agrees, that service is put into the IEP and enforceable. If the school members of the IEP Team don’t agree, then the parent can file for due process to challenge that decision and use the doctor note as evvidence that the child needs that service. Hope that helps explain what the law provides (this is federal law and applies in all 50 states).
I am a TA zero certifications or training in Spec Ed
The director of sped has dictated that I WILL be in the classroom with a first grader with major disabilities physically and mentally, from 7:35- 10:50.
Took me out of PreK where I worked all last year.
That is literally all that was said to me. I don’t know what I’m supposed to be doing! I don’t know what her abilities and disabilities are!!! I don’t feel qualified or comfortable!!!
Is it the sped directors job to give you the training and info on child? If there are sped aides wouldn’t they be the first choice???
As an aide can I say No I don’t want to help with spec Ed without losing my job??
I had no issue with helping sped children until this happened!!! Just throw me into it with zero training or info, no expectations no communication!!!
Training and personnel decisions are made based on State law and/or District policy. The key thing from a federal law perspective is that anyone in the classroom with a special ed student should have reviewed that student’s IEP and understand what services, accommodations, and goals are in that IEP. You might consider speaking with the union representative (if there is one) or a personal attorney who deals with employment or education law. I cannot give personal legal advice on this blog.
What is the law under IDEA that states specifically who can legally deliver special education services in the public school setting? Thank you.
IDEA does not provide specifics as to who may provide special education services in the public schools. In general, this is left to the individual states and their qualification requirements. See 34 C.F.R. 300.156 which states: “The SEA must establish and maintain qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained, including that those personnel have the content knowledge and skills to serve children with disabilities.” Subpart (c) of that regulation does provide a bit more on qualifications, but states mut set their own standards within these rules. “The qualifications described in paragraph (a) of this section must ensure that each person employed as a public school special education teacher in the State who teaches in an elementary school, middle school, or secondary school— Has obtained full State certification as a special education teacher (including certification obtained through an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in 34 CFR 200.56(a)(2)(ii) as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, the teacher must meet the certification or licensing requirements, if any, set forth in the State’s public charter school law . . . .” There are some further provisions, but you need to research what your state says on this.