Services

Assist vs. Provide

The regulations that implement the IDEA state that “paraprofessionals and assistants who are appropriately trained and supervised” can be used “to assist in the provision of special education and related services under [the IDEA] to children with disabilities.” [34 C.F.R. § 300.156(b)(2)(iii)] The crux of the matter is the meaning of the word assist. The United States Department of Education/Office of Special Education Programs (OSEP) explains that “this provision should not be construed to permit or encourage the use of paraprofessionals as a replacement for teachers or related service providers who meet State qualification standards.” [Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol. 71, No. 156, p. 46612 (August 14, 2006)] Clearly, this means that any assistant cannot be solely responsible for the provision of special education instruction and services, cannot be used as a replacement for a special education teacher, cannot be directly responsible for providing special education instruction and services, and any provision of special education can occur only under the supervision of special education personnel. [Id.]

The question then to be answered is when does assistance cross the line from assisting in the provision of special education to providing special education and related services? Although the specific language of the IDEA does not directly answer this question, OSEP again provides some guidance in this regard: “The [IDEA] makes clear that the use of paraprofessionals and assistants who are appropriately trained and supervised must be contingent on State law, regulation, and written policy giving States the option of determining whether paraprofessionals and assistants can be used to assist in the provision of special education and related services under Part B of the Act, and, if so, to what extent their use would be permissible. However, it is critical that States that use paraprofessionals and assistants to assist in providing special education and related services to children with disabilities do so in a manner that is consistent with the rights of children with disabilities to [a] FAPE under Part B of the Act.” [Id.]

Frequency vs. Duration

Among other things, each child’s IEP must include “a statement of the special education and related services and supplementary aids and services … that will be provided to enable the child to advance appropriately toward attaining the annual goals, and to be involved in and make progress in the general education curriculum, and the projected date for the beginning of the services, and the anticipated frequency, location, and duration of those services. [34 C.F.R. § 300.320(a)(4) and (7)] To meet the requirement above that an IEP must include information on the frequency and the duration of a particular service, it is generally understood that frequency refers to how often a student will receive a service (the number of times each week), and duration refers to how long each session will last (the number of minutes/session) and the start and end dates of that service.

There is no requirement that the amount of services cannot vary from week to week if necessary, and there is nothing in the regulations that would bar such an arrangement; however, if the services are less than daily or weekly, then the IEP must specifically and clearly provide an explanation. [See Letter to Matthews, 55 IDELR 142 (United States Department of Education/Office of Special Education Programs (OSEP) 2010)] Although the exact number of minutes of a special education service to be provided to a student does not have to be included in the IEP, the amount of services must be reasonably known to all parties involved in the development and implementation of the IEP. [JL v. Mercer Island School District. F 3d, 109 IDELR 48649 (9th Cir. 2009)] To this end, the amount of time for each service must be stated in the IEP with sufficient clarity to be understood by all persons involved in the development and implementation of the IEP. [Letter to Gregory, 17 IDELR 1180 (OSEP 1991)]

Placement vs. Location

Placement decisions must be made by a group of persons, including the parents, and others knowledgeable about the child who understand the meaning of evaluation data and the placement options, and must base their decisions on the child’s IEP. [34 C.F.R. § 300.116] The IDEA regulations state that schools “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.” [34 C.F.R. § 300.115(a)] This continuum must include “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.” [Id. at subsection (b)(1)] Schools are required to “make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.” [Id. at subsection (b)(2)]

The Commentary to the IDEA regulations explains: “Historically, we have referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services. [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B–State Eligibility, Federal Register, Vol.71, No. 156, p. 46588 (August 2006)]

“A public agency may have two or more equally appropriate locations that meet the child’s special education and related services needs and school administrators should have the flexibility to assign the child to a particular school or classroom, provided that determination is consistent with the decision of the group determining placement.” [Id.] Therefore, a placement decision is not the determination of a particular classroom within a school or the identification of a particular teacher or school personnel who will be providing services to the child. The United States Department of Education Office of Special Education Programs (OSEP) provides guidance in this regard by explaining that schools are permitted to make determinations about specific classrooms, teachers and support personnel as a matter of administrative concern and prerogative. [Letter to Wessels, 16 IDELR 735 (16 EHLR 735)(OSEP 1990)]