Special Education Dispute Resolution

Has the definition of “specially designed instruction” changed?

The IDEA regulations define special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.” [34 C.F.R. § 300.39(a)(1)] The regulation continues: “[s]pecially designed instruction means adapting, as appropriate to the needs of the eligible child … the content, methodology, or delivery of instruction.” [Id. at subsection (a)(3)] The United States Department of Education/Office of Special Education Programs (OSEP) “recognizes that classrooms across the country are changing as the field of special education responds to innovative practices and increasingly flexible methods of teaching. [However], [w]hile the needs of many learners can be met using such methods [best teaching practices or services that are part of a school’s regular education program], they do not replace the need of a child with a disability for unique, individualized instruction that responds to his or her disability and enables the child to meet the educational standards within the jurisdiction of the public agency that apply to all children.” [Letter to Chambers, 59 IDELR 170 (OSEP 2012)] If a child with a disability can access the general education curriculum without specially designed instruction or related services, the child’s eligibility under the IDEA would be called into question.

If a special education teacher provides accommodations and helps a student with his/her assignments, is that specially designed instruction?

The regulations that implement the Individuals with Disabilities Education Act (IDEA) define special education as specially designed instruction, which “means adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction.” [34 C.F.R. § 300.39(b)(3)] While this means that special education is different from general education, it also means that special education is something more than providing accommodations and/or assisting a student with assignments. Although students eligible for special education may need some accommodations to access the general education environment, simply providing accommodations and/or academic support does not equate with specially designed instruction.

Can paraprofessionals provide specially designed instruction?

The federal IDEA regulations allow appropriately trained and supervised paraprofessionals to be used to “assist in the provision of special education and related services . . . to children with disabilities.” [34 C.F.R. § 300.156(b)(2)(iii)] However, 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)] Therefore, paraprofessionals can work with a student to reinforce instruction provided by a special education teacher and assist in the delivery of specially designed instruction, but they cannot be the sole provider of the specially designed instruction.

What exactly are related services, and is adapted/adaptive PE a related service?

“Related services” means transportation and such developmental, corrective, and other supportive services that are required to assist a child with a disability to benefit from special education. [34 C.F.R. § 300.34(a)] Related services include: “speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training. . . . Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g. mapping), maintenance of that device, or the replacement of that device.” [Id. at subsections (a) and (b)(1)]

The regulations that implement the IDEA do not identify adapted PE as a related service; however, special education is defined to mean “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including – – (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (ii) Instruction in physical education.” [34 C.F.R. § 300.39(a)(1)] (Emphasis added) If an eligible student needs adaptive PE in order to receive a free appropriate public education, as determined by the child’s IEP team, the school must make such service available.