From the Blog "Bill's View"
by Mass. Advocates for Children
By Bill Crane, Esq.
March 17, 2015
Bill Crane is Of Counsel to Massachusetts Advocates for Children. He works with other MAC attorneys on systemic special education issues, consults to attorneys representing low-income parents and students in special education disputes, and writes occasional postings for the MAC blog. Bill was a Hearing Officer at the Bureau of Special Education Appeals from 1999 to 2014.
This is the fifth of occasional postings on special education law and practice. In this post, he reviews a recently-revised Department of Elementary and Secondary Education (DESE) Advisory on the use of paraprofessionals for individual students with disabilities.
In a balanced and informed manner, the DESE revised Advisory identifies and helps resolve a number of challenges faced by school districts, parents, students and IEP Teams when considering the utilization of paraprofessionals. In addition, the Advisory emphasizes certain over-arching principles that provide guidance in this as well as other areas of practice.
The Advisory, which has been substantially redrafted since the original Advisory was issued last year, is Technical Assistance Advisory (SPED 2014-3) (revised) dated February 26, 2015. It may be found at: http://www.doe.mass.edu/sped/advisories/2014-3ta.html
I begin by discussing how the Advisory addresses the need for appropriate paraprofessional services for individual students and then focus on a number of concerns regarding the inappropriate utilization of these services.
The Need for Paraprofessional Services
Paraprofessional services may be essential for a particular student to receive a free appropriate public education (FAPE) and, in particular, to maximize learning and participation with non-disabled peers.
For example (as the Advisory states in footnote 3), these services may be needed “for a disabled student to learn … with non-disabled students to the maximum extent appropriate …, to allow the student to participate in extracurricular and other nonacademic activities, or to address a wide variety of other educational needs identified on a student’s individualized education program (IEP). Assignment of a paraprofessional may also be an effective tool to foster independent living by teaching a student how to utilize a personal care attendant.”
Additional examples (providing further guidance) are included in an attachment to the Advisory.
The Advisory notes that, as a general rule, if a “paraprofessional can increase the student’s access to the general education environment or assist in moving toward more independence, then generally the Team should identify use of the paraprofessional.” The Advisory is, at the same time, careful to remind the reader that any decision to assign (or not assign) a paraprofessional to an individual student is the sole province of the IEP Team.
The Advisory further explains: “The Team makes this decision solely on the basis of whether paraprofessional services are appropriate to meet the unique learning needs of the particular student so that he or she will have the opportunity to receive FAPE in the least restrictive environment and at the same time prepare for ‘further education, employment, and independent living.’”
Notwithstanding the importance of paraprofessional services for individual students, there has been a growing sense, at least within DESE, that some school districts may be overly-relying on paraprofessionals, to the detriment of both the students and the school districts—thus, the importance of a DESE Advisory that sheds light and provides guidance to school districts, parents, students and their advocates alike.
I therefore identify a number of concerns raised by the Advisory regarding the inappropriate use of paraprofessionals and then explain the responsive guidance from the Advisory.
Concern #1: Teachers, administrators and parents jump too quickly to the conclusion that a paraprofessional is needed for a particular student. For example, the Advisory explains that because of the educational profile of a student or because a classroom teacher is feeling overwhelmed by a demanding student, a school district might respond simply by assigning a paraprofessional.
An “essential premise” of the Advisory is the need to first determine the student’s “underlying learning needs”, then consider the “full array of supports and services that may successfully address [those] needs” and only then make a decision regarding the assignment of a paraprofessional.
Deciding that a paraprofessional should be assigned without first utilizing this process “may leave unaddressed key issues such as (a) improving teacher ability to educate a full range of students with disabilities; (b) building capacity in general education to design curriculum and instruction for mixed ability groups that include students with disabilities; and (c) changing or improving student behavior.”
As noted above, decision-making regarding the assignment of paraprofessionals for individual special education students is the sole province of the IEP Team. Guidance is provided to IEP Teams for breaking down the decision-making process into three separate steps to help ensure that the Team is looking at the student’s underlying learning needs and all of the possible services and supports that may meet those needs, prior to making a decision regarding assignment of a paraprofessional.
Concern #2: Inappropriate use of paraprofessional can have detrimental consequences to a student’s independence. Negative consequences may also include “interference with peer interactions, insular relationships, stigmatization, provocation of behavior problems, or diminished student-teacher interactions.”
The Advisory identifies an “over-arching goal of promoting students’ independence”. The Advisory explains that “[i]t is the essential mission of elementary and secondary education to prepare all students for successful adult life” and that “our public schools must always strive to build independence in our students, particularly as they begin to approach adult life.
Thus, decisions regarding assignment of paraprofessionals are to be made in a way that “allows each student to become as independent as possible, particularly in preparation for the end of secondary education.” At the same time, the Advisory notes that IEP Team decisions regarding use of paraprofessionals must “allow the unique learning needs of each student to be met.”
There may, of course, be tension between the twin principles of promoting a student’s independence and meeting his or her unique educational needs. The Advisory seeks to resolve (or at least reduce) this potential problem by instructing the IEP Team to consider “the entire range of specially designed instruction, related services and accommodations that can meet the student’s particular needs [italics in original].”
In this way, decision-making “seeks to ensure that service or support options (other than a paraprofessional) are also considered and utilized if they would address effectively a student’s learning needs and offer additional advantages such as fostering greater independence.”
Concern #3: Paraprofessionals are assigned responsibilities that require the skills of a licensed teacher. Paraprofessionals might inappropriately be given responsibility, for example, for “making curriculum decisions, planning lessons or designing adaptations, as compared with implementing decisions made by the teacher.”
The Advisory explains that “[a]ppropriate use of paraprofessionals depends, to a large extent, on whether the paraprofessional has the requisite skills to address effectively one or more aspects of a student’s unique needs.”
As discussed within Example W (one of four examples attached to the Advisory), a student might be “identified as presenting learning needs that are substantially different than those typically met by the general education teacher.”
It may be that “a paraprofessional … would not have the expertise or skills to meet these needs and that co-teaching with a special education teacher or collaboration between the special education and regular education teachers would appropriately address Student’s underlying learning challenges.”
Concern #4: Paraprofessionals are not properly trained and supervised. The Advisory notes that “[t]here have … been reports of inadequate training and supervision, making it impossible for a paraprofessional to be effective.”
The Advisory makes clear that “[s]chool districts have an affirmative obligation to ensure that all paraprofessionals are trained and supervised so that they will be able to provide the services for which they are responsible, as reflected in federal Office of Special Education Programs (OSEP) policy guidance.” OSEP has provided guidance in the form of comments on federal regulatory changes and an advisory letter. 
The Advisory further explains: “Therefore, once an IEP Team decides that a paraprofessional is needed for a student, the Team has a responsibility to determine the means by which a paraprofessional will have sufficient training and supervision. This may occasionally require additional services or consultation in the IEP.”
Concern #5: Paraprofessional services continue in amount and duration beyond what is needed. All students’ needs change over time, and for many students, other services or supports may eventually be appropriately substituted in whole or in part for paraprofessional services.
“Therefore, whenever an assignment of paraprofessional services is initially made, the Team should discuss and develop a plan for reviewing the continued need for these services, including a process to review and monitor the student’s progress and determine whether the student’s need can be met with other services or supports. The Team may establish criteria which, if met by the student, will trigger initiation of the IEP amendment process to consider a change in services.”
The Advisory cautions that each plan for fading paraprofessional services must be “individually tailored for the particular student.”
Concern #6: Paraprofessionals are relied upon more than necessary because of district-wide limitations. The Advisory includes recommendations to school districts for developing greater educational capacity to effectively serve diverse learners, thereby reducing reliance on paraprofessionals.
There may also be a kind of “unconscious” belief that paraprofessionals are always needed for students with a particular educational profile, and the Advisory recommends that school districts take steps towards changing these attitudes.
The Advisory makes clear the critical importance of paraprofessional services for many individual students with disabilities, and the need to identify each student’s underlying educational needs (and consider the full range of services, including paraprofessional services, that would meet those needs) before making a decision regarding an individual student.
The Advisory also highlights the significant negative consequences of making poor decisions regarding the utilization of these services. And, the Advisory guides the decision-making process so that paraprofessionals will more likely be appropriately assigned, effectively trained and supervised, and then faded and terminated if and when no longer needed by the particular student. DESE has afforded school districts, parents, students, and advocates with substantial guidance regarding these important issues and concerns.
 In my first posting (September 2014), I reviewed the United States Supreme Court’s decisions pertaining to special education. In the second posting (October 2014), I gave an overview of First Circuit special education decisions. In the third posting (December 2014), I discussed the “retrospective testimony” rule. (Retrospective testimony refers to testimony, in a BSEA proceeding or court appeal, that certain educational services not listed in the IEP would actually have been provided to the child if he or she had attended the school district’s proposed placement.) In the fourth posting (February 2015), I discussed a recent decision by the First Circuit that discussed settlement agreements used to resolve special education disputes.
 See 20 U.S.C. § 1400(d)(1)(A) (a principal purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to … prepare them for further education, employment, and independent living”); 20 USC § 1414 (d)(1)(A)(i) (requiring transition planning and services beginning at age sixteen); Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 201, n.23 (1982) (in enacting the IDEA, Congress endeavored to enable disabled students to “achieve a reasonable degree of self-sufficiency” and “become productive citizens, contributing to society”); MGL c. 71B, s. 2 (requiring transition services beginning at age fourteen or sooner).
 See Federal Policy and Guidance — OSEP Memorandum: Attachment 1 — Analysis of Comments and Changes – 05/04/2000, 64 Federal Register 12405, 12552 (March 12, 1999) (“When paraprofessionals are used to assist in the provision of special education and related services under these regulations, they must be appropriately trained and supervised in accordance with State standards”); Letter to Anonymous (11/08/2000) (“States [are] to ensure that all personnel who work with children with disabilities (including both professional and paraprofessional personnel who provide special education, general education, related services, or early intervention services) have the skills and knowledge necessary to meet the needs of children with disabilities”).