Virginia Education Association. Special Education. Frequently Asked Questions

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1 Virginia Education Association Special Education Frequently Asked Questions Office of Legal Services Office of Teaching and Learning Spring 2010

2 New Business Item 12 at the 2009 VEA Delegate Assembly called for a revamping of special education. Delegates discussed a number of concerns related to how school building administrators and central office staff members interpret special education regulations. The VEA special education committee recommended that the VEA create a Frequently Asked Questions document regarding special education to assist members who experience issues in this area. Members call local UniServ offices and VEA Headquarters for assistance and advice on a variety of classroom-related topics. The VEA has compiled a list of the most frequent questions asked about special education and made them available for reference. Because every situation is unique, this document should only be used as a reference for background information in resolving a situation or addressing a concern. Members should always seek further clarification or guidance from a UniServ director if they find themselves in a situation where they feel they are being asked to violate state education regulations.

3 1. Can a Teaching Assistant be pulled by the Administration to substitute for an absent teacher or answer phones? The answer is yes, but keep track of how often and for how long. Helping out in an emergency and covering for an unexpected absence are fine; too much dependence on this practice can raise questions. Teachers, paraprofessionals such as teaching assistants or aides, and other school employees are employed by the local school board. Assignment to a school building, to a particular grade or class in a school, to work with certain students or to answer telephones can be changed. Salary, benefits and school employment are not changed by doing other school work, so the employee is not really hurt by a change in duties. So why keep track of how often and how long the teaching assistant is pulled from the classroom? The Standards of Quality require a teacher s aide in a kindergarten class with more than 24 students - taking a kindergarten aide out of the class often or for long periods of time could violate that Standard. In similar fashion, compliance with Individualized Education Plans (IEPs) could be jeopardized if an aide called for in IEPs is frequently removed for long periods of time. So questions might be appropriate not because the aide must work with a specific student, or the special education teacher has to have that aide, but because frequent changes are leaving the special needs student without assistance promised in the IEP. Finally, bookkeeping and accounting changes might have to be made if an aide paid from Title I funds does other work often or long. School administrators can change the aide s duties but may not be able to use the Title I funds to cover that expense. VEA Members may want to discuss with their UniServ Director details of how often the Assistant is asked to do other work, for how long, and under what circumstances. 2. How many students can be assigned to a special education class? How many students with IEPs can be included in a general education class? State regulations address special education class size very clearly, stating: No more than 14 children shall be assigned to a single class period if there are similar achievement levels and one subject area and level are taught. No more than 10 students shall be assigned to a single class period when there are varying achievement levels (8 VAC (C)). No statute or regulation requires special counting or weighting of a child with a disability assigned to a general education class as part of the child s general education placement. If special services required by the IEP are being delivered in that general education class the child with a disability is counted in special education calculations. Accommodations are not considered specialized services. Therefore, a child with a disability is student-counted like any other child in the general education class. It may seem inconsistent to limit a special education classroom to 14 children with disabilities but not place any limit on how many children with disabilities are included in the larger general education class. But the law does not require any Virginia Education Association 2010 Page 1

4 special weight be assigned to children with disabilities taking the same instruction in a general education class. 3. How is class size different than caseload? Caseload applies to special education teachers and students. Caseload counts children with disabilities for whom the special education teacher is assigned oversight and case management responsibility. Caseload tasks typically include: IEP writing, scheduling meetings, behavior intervention plans, attendance at eligibility and other meetings, administering and writing evaluation reports for triennial re-evaluation meetings, and communication with parents, other teachers, related service providers, and outside agencies. Some special education teachers spend all day teaching all subjects to a group of children with disabilities. If no students come from or go to instruction with other teachers during the day, there is no real difference between the special education caseload and class size. But many special education teachers provide some, not all, of the instruction for children with disabilities who come and go between regular and special instruction. In this model mixing special education and general instruction, the case load for the special education teacher is typically determined through the use of a building average. Each student is assigned a weight based on level of service required in the IEP and the identified disability. This building average takes into consideration the number of special education teachers and paraprofessionals assigned to the building, and the weight assigned to each student. In most schools, the building average must be 20 points per teacher. Again, state regulation limits class size if children with disabilities are assigned to a single special education classroom: 14 students for a single subject taught to students of similar achievement levels, and 10 for varying achievement levels (8VAC (C)). But children with disabilities have no special weight or count if they receive regular instruction in a general education classroom. 4. How many grade levels can be grouped for content-area special education courses? How am I supposed to cover all the material for the SOL test or VGLA? Achievement level is the only aspect of grouping addressed in special education regulations. Again, 10 students of varying achievement levels can be assigned to a single class period (8 VAC (C)(3)). Your VEA UniServ Director may be able to help you seek guidance and clarification from your principal or special education coordinator as you try to instruct and supervise students of different ages and abilities. Virginia Education Association 2010 Page 2

5 5. Can the special education teacher be assigned to more than one inclusion class at a time? Can an assistant be the special education staff member assigned to the inclusion class? Assignments of special education staff to inclusion classes depend on the specific language of student IEPs. Virginia special education regulations distinguish between collaboration and co-teaching. "Collaboration" means interaction among professionals as they work toward a common goal. Teachers do not necessarily have to engage in co-teaching in order to collaborate (8 VAC ). Co-teaching, on the other hand, is defined as a service delivery option with two or more professionals sharing responsibility for a group of students for some or all of the school day in order to combine their expertise to meet student needs (8 VAC ). Therefore, if the IEP calls for collaboration, the special education teacher can be assigned to more than one place at the same time. If the IEP calls for co-teaching for certain subjects, the special education teacher should be present for the majority of instruction and involved in the majority of the planning in the subject areas specified. If the IEP says that the services will be delivered by special education staff, then it is acceptable for an assistant or paraprofessional to be the team member assigned to an inclusion class. 6. Who is required to attend an IEP meeting? What does my signature mean on the IEP? An IEP is a written statement developed, reviewed and revised in accordance with procedures spelled out in federal regulations. The federal regulations define the IEP team as including: the parents of the child with disabilities, not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); not less than one special education teacher or provider of a service (such as speech therapy, occupational therapy, physical therapy, etc.) to the child; a representative of the school division who is qualified to provide or supervise instruction meeting the needs of a child with disabilities and knows about the general curriculum and the resources of the school division; an individual who can interpret the instructional implications of evaluation results (this can be one of the other team members); at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child; and, whenever appropriate, the child with a disability (34 C.F.R ; 34 C.F.R ). Virginia Education Association 2010 Page 3

6 The regular education teacher is expected to provide input into both appropriate positive behavioral interventions and supports and other strategies for the child; and supplementary aids and services, accommodations, program modifications or supports for school personnel that will be provided for the child (34 CFR (a)(3)). For students who are not currently participating in the regular education environment, a regular education teacher must be part of the team if the child may participate sometime during the year. Because a student s placement is not determined until after all services and goals are determined, most schools assume that all students may participate at some point and require a regular education teacher to be present for each annual IEP meeting. The regulations allow a school division and the parents to excuse a member of the IEP team if that person is unable to attend. If the IEP meeting is a mid-year addendum that addresses only a limited portion of the IEP, the parent and the school division can document a written agreement that excuses members of the team whose areas are not being discussed. Members of the team can still be excused if their area of the curriculum is being discussed, as long as the parents and school division agree to it in writing, and the team member submits written input to the parents and the rest of the team prior to the meeting (34 C.F.R ). The regulations also allow an IEP meeting in the absence of the parents if the school could not convince the parents to attend; but the school must keep detailed records of efforts to communicate with parents by telephone, in writing, and by visiting home or workplace trying to arrange the IEP meeting (34 C.F.R ). Different parties sign the IEP for different reasons. The rights to special services and procedures belong to the child with disabilities and that child s parents. Parents must consent to evaluation and for services (34 C.F.R ). Therefore, the parents must sign to show consent. Some schools have parents sign more than once to show attendance and consent separately. A school employee authorized to represent the school division signs to show the division agrees to deliver the services spelled out in the IEP. Other individuals on the IEP team sign to indicate attendance at the IEP meeting. All school employees who work with the child with disabilities are required to follow the IEP, regardless of whether or not they attended the IEP meeting or signed the IEP. However the IEP does not create legal rights or liabilities for the school employees, other than the risk of discipline or dismissal from school employment. Disputes about the IEP are between the parents of the child with disabilities and the school division. Virginia Education Association 2010 Page 4

7 7. What if I disagree with the IEP placement in my class? Can I protest it or refuse to have a student in my class? Teachers cannot decide who they teach or veto student placement. It is not appropriate or legal to refuse to work with a child based solely on his or her identified disability or global and generalized concerns about what might happen. But you can and should communicate and document why you believe a student is not properly placed. Provide specific examples of the academic or behavioral difficulties in your class, or recorded and documented in the student s record. Be very specific about conditions that pose a danger or disrupt instruction of other students in the class. List all your questions about when, where and how, including questions about what happens during fire drills, school emergencies, staff absences, and other unusual circumstances. You may get answers that help you work with the student, or convince others to rethink and change the student s placement. Contact your UniServ Director for help organizing your information and communicating your concerns. You can always request an IEP meeting to address your own concerns. When your concerns are specifically behavioral in nature, ask that the IEP team conduct a functional behavioral analysis to identify the student s needs and triggers. Once this analysis has been completed, the team should create a behavioral intervention plan, which will provide you with guidance and support about how to handle the student s needs. It is possible that as a result of this process, the team will determine that your classroom is no longer an appropriate placement for the student. 8. What it RtI? How is it supposed to work? RtI stands for Response to Intervention. It is intended by advocates to be a general education initiative that provides access to high-quality instructional and behavioral techniques and interventions to students prior to identification for special education. In most models, teachers use regular benchmark assessments to create flexible groupings for instruction. Students whose progress is below the benchmarks set by the school system receive targeted interventions intended to bring their performance up to standard. If students continue to show slow progress, they are moved into an even more intensive, more finely targeted, supportive group for the skill areas in which they are struggling. The child is referred to special education only if he or she fails to make appropriate progress after multiple interventions are used. Regulations adopted after the re-authorization of Individuals With Disabilities Education Act (IDEA 2004) allow school divisions and states to use a process for determining whether a child has a disability based on the child's response to scientific, research-based intervention and permits each local educational agency to use other alternative research-based intervention and procedures (34 CFR ). The regulations also allow for what are called early intervening services which provide additional academic and behavioral supports to children who are not currently identified as needing special education so that they can succeed in a general education environment. There is currently a lot of controversy among special education researchers about using measures of responsiveness to identify students with learning Virginia Education Association 2010 Page 5

8 disabilities, though most people would agree that the principles of research-based instruction and flexible grouping are sound. These regulations around the identification process and early intervening services have prompted many school systems to adopt a more systematic approach to flexible grouping and monitoring of student progress. The adoption of this approach has not always gone well for teachers and school divisions. Teachers frequently complain about the amount of benchmark testing required, as well as the amount of documentation and paperwork added to their jobs. Additionally, there are often concerns that necessary high-quality professional development has not been included in a school system s adoption of RtI. Teachers who are successful at implementing RtI need support in organizing and maintaining the instructional data regarding student progress, as well as using that data to make instructional decisions and how to utilize the research-based programs and instructional techniques selected by their school system. 9. What is a Behavioral Intervention Plan? Can a child with disabilities be subject to school discipline? A behavioral intervention plan incorporates positive behavioral interventions and supports to address behaviors that interfere with the learning of the child with disabilities, interfere with the learning of other students, or require disciplinary action. The behavior of the child with disabilities is preventing that student or other students from learning, or the school is considering a change in placement or a long-term suspension in response to the behavior. An IEP meeting must be held to determine if the behavior is a manifestation of the student s disability, or related to an inappropriate or improperly implemented IEP. If the behavior is a manifestation of the disability or is related to an inappropriate or improperly implemented IEP, the IEP team must either create a behavioral intervention plan that addresses the behavioral needs, or develop goals and services within the IEP to address the identified needs. The plan must include a description of the student s behavior, the reasons for the behavior and how positive interventions, strategies and supports will be used to address the behavior. If it is determined that the behavior is unrelated to the student s disability and that the IEP was both appropriate and properly implemented, the school can discipline the student in the same manner as they would a student without a disability. 10. What if I don t know how to teach a student included in my class? Can the school require that I attend Mandt training? What if I don t want to teach a child who needs restraint? Virginia s special education regulations require the state Department of Education to provide training and technical assistance to schools and teachers that need support providing a student Virginia Education Association 2010 Page 6

9 with a disability access to the least restrictive environment (8VAC (9)). If you feel that you need additional training and support to adequately include a student with disabilities in your class, this should be discussed during an IEP team meeting so plans can be made for you to receive the training and support. If you have concerns about the appropriateness of that child s placement in your class, you should document your observations and request additional supports and accommodations. It is not appropriate or legal for you to refuse a child based solely on his or her identified disability or global and generalized concerns about what might happen. It is appropriate for you to document specific, observable incidents from your classroom or the child s record, and ask the team to create a plan for handling those incidents and getting you the training and support you need to implement the IEP. It is very possible that during the planning process, the team will decide that the child needs a different environment based on the services and modifications that they identify. Providing a safe and orderly learning environment is part of a teacher s job description. And teachers are expected to use appropriate behavior management techniques. So, your principal or supervisor can require that you receive training in a specific behavior management programs or procedures. Mandt is one of the State Department of Education approved training programs which is frequently used to provide additional support for students with behavioral needs. While the Mandt curriculum includes training on proper techniques for safe physical restraint of students, it is not simply a system of restraint. It includes a major focus on positive behavioral supports and building strong relationships to avoid the need for physical restraint whenever possible. If the IEP team has determined that Mandt or a similar program is required as a part of a student s IEP, the teachers must participate in the training that is offered. Proper use of restraint and seclusion is making national news right now. Numerous reports have been published in the last 12 to 18 months about abusive practices in U.S. schools and residential facilities in the name of restraint and seclusion. Additionally, every year, we see numerous members who are investigated for child abuse in relation to restraints or physical contact that occurred in their classroom. Being trained in a state department program, and then applying and documenting how you use the training with your students, could not only protect you from physical harm but also help if your actions with the student come under scrutiny. If you have specific, individual concerns about required training or your ability to provide appropriate and safe restraint due to physical limitations, please discuss your concerns with your UniServ director. Virginia Education Association 2010 Page 7