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U.S. Department of Education: Promoting Educational Excellence for all Americans

Personnel qualifications (Sec. 300.156)

Comment: One commenter requested that Sec. 300.156 use the term "standards" when referring to personnel qualifications.

Discussion: We are not changing Sec. 300.156 because its language follows the specific language in section 612(a)(14) of the Act. Current Sec. 300.136 refers to "personnel standards" but was removed consistent with the changes in section 612(a)(14) of the Act.

Changes: None.

Comment: Some commenters requested that the personnel qualification requirements in Sec. 300.156 apply to personnel who provide travel instruction and teachers of children with visual impairments. Other commenters requested that personnel who provide therapeutic recreation services be required to meet the personnel qualifications. Some commenters requested that the personnel qualifications apply to preschool special education teachers.

Discussion: It is not necessary to list the specific personnel who provide services to children with disabilities under the Act and to whom the requirements in Sec. 300.156 apply because the regulations are sufficiently clear that all needed personnel are covered. This includes personnel who provide travel instruction or therapeutic recreation services; teachers of children with visual impairments, if such personnel are necessary to carry out the purposes of this part; and preschool teachers in States where preschool teachers are considered elementary school teachers. Section 300.156(a), consistent with section 612(a)(14)(A) of the Act, requires each SEA to establish and maintain personnel qualification requirements to ensure that personnel necessary to carry out the purposes of Part B of the Act and part 300 are appropriately and adequately prepared and trained, and have the content knowledge and skills to serve children with disabilities.

Changes: None.

Comment: One commenter stated that the regulations should define what it means to be qualified to provide services to children with disabilities under the Act. The commenter stated that the regulations do not include any requirements for general education teachers or administrators who are involved in providing instruction and services for children in special education.

Discussion: It is not necessary to change the regulations to define what it means to be qualified to provide services because we believe that, aside from the "highly qualified" requirements for teachers and special education teachers in ESEA and the Act, other personnel qualifications are appropriately left to the States, in light of the variability in State circumstances. Further, Sec. 300.156, consistent with section 612(a)(14) of the Act, makes it clear that it is the responsibility of the SEA, not the Federal government, to establish and maintain qualifications for personnel who provide services to children with disabilities under the Act.

Changes: None.

Comment: One commenter objected to the removal of the requirements for a comprehensive system of personnel development in current Sec. 300.135. The commenter also stated that regular education teachers need to be trained to work with children with disabilities to ensure that their inclusion in the regular classroom is successful.

Discussion: Current Sec. 300.135 required States to have in effect a system of personnel development to ensure an adequate supply of qualified special education, regular education, and related services personnel. Section 612(a)(14) of the Act removed this requirement. The removal of current Sec. 300.135, however, does not diminish the responsibility of each State to establish and maintain qualifications to ensure that personnel (including regular education teachers) necessary to carry out the purposes of the Act are appropriately and adequately prepared and trained, consistent with Sec. 300.156.

Changes: None.

Comment: Some commenters recommended that the regulations include language from note 97 of the Conf. Rpt., p. 192, which requires SEAs to establish rigorous qualifications for related services providers to ensure that children with disabilities receive the appropriate quality and quantity of care. Several commenters requested that the regulations require SEAs to consult with LEAs, other State agencies, the disability community, and professional organizations regarding appropriate qualifications for related services providers and different service delivery models (e.g., consultative, supervisory, and collaborative models).

Discussion: We believe that States already have sufficient incentive to ensure that related services providers provide services of appropriate quality so that children with disabilities can achieve to high standards and that further regulation in this area is not necessary. Section 300.156(b), consistent with section 612(a)(14)(B) of the Act, includes the qualifications for related services personnel. There is nothing in the Act that requires SEAs to consult with LEAs, other State agencies, or other groups and organizations to determine the appropriate qualifications for related services providers and the use of different service delivery models, and while we agree that this is good practice and encourage SEAs to participate in such consultation, we do not believe that we should regulate in this manner. States should have the flexibility, based on each State's unique circumstances, to determine how best to establish and maintain standards for all personnel who are providers of special education and related services.

Changes: None.

Comment: Numerous commenters objected to Sec. 300.156(b) and the removal of the requirement in current Sec. 300.136 for State professional requirements to be based on the highest requirements in the State. The commenters stated that the removal of this requirement relaxes the qualification standards for speech-language pathologists and other related services personnel. Several commenters stated that speech-language professionals should be required to have advanced degrees (i.e., master's level) because a bachelor's degree does not provide adequate preparation. Many commenters expressed concern that the requirements in Sec. 300.156(b) will lead to a decline in the quality of related services provided to children with disabilities in public schools. Other commenters expressed concern that increasing the standards will exacerbate the shortage of related services personnel experienced by large urban school districts.

Discussion: We are not changing Sec. 300.156 because it reflects the specific language in section 612(a)(14) of the Act, which was intended to provide greater flexibility to SEAs to establish appropriate personnel standards, including the standards for speech-language pathologists. As indicated in note 97 of the Conf. Rpt., p. 192, section 612(a)(14) of the Act removes the requirement for State professional requirements to be based on the highest requirements in the State because of concerns that the previous law, regarding the qualifications of related services providers, established an unreasonable standard for SEAs to meet, and as a result, led to a shortage of related services providers for children with disabilities. We believe that States can exercise the flexibility provided in Sec. 300.156 and section 612(a)(14) of the Act while ensuring appropriate services for children with disabilities without additional regulation.

Changes: None.

Comment: Many commenters expressed concern that Sec. 300.156(b) establishes qualifications for related services providers in public schools that are less rigorous than the qualifications for related services providers who provide Medicaid services or services in other public settings, such as hospitals. The commenters stated that less rigorous qualifications would result in a two-tiered system in which related services providers in public schools will be less qualified than related services providers in other public agencies. Another commenter expressed concern that the relaxation of standards for speech-language pathologists would cause LEAs to lose Medicaid funds that are used to assist children with disabilities.

Discussion: Section 300.156, consistent with section 612(a)(14)(B)(i) of the Act, clarifies that it is up to each SEA to establish qualifications for personnel to carry out the purposes of the Act. This will require weighing the various policy concerns unique to each State. The qualifications of related services providers required under Medicaid, or in hospitals and other public settings, and the fact that Medicaid will not pay for providers who do not meet Medicaid provider qualifications should serve as an incentive for States that want to bill for medical services on children's IEPs to impose consistent requirements for qualifications of related services providers.

Changes: None.

Comment: Some commenters stated that related services personnel should be considered to have met the qualifications in Sec. 300.156(b)(1), regarding State-recognized certification, licensing, registration or other comparable requirements, if such personnel hold an academic degree consistent with their profession's national certification or State license to practice; demonstrate satisfactory progress toward full certification in the schools as prescribed by the State; and assume related services personnel functions for a specified period not to exceed three years.

A few commenters objected to the requirement that related services personnel must not have had certification or licensure requirements waived. One commenter stated that emergency, temporary, or provisional certificates are necessary for professionals relocating from different States or different countries, and predicted that professionals with emergency, temporary, or provisional certification would work for contract agencies to bypass the requirements.

Discussion: We believe the provisions in Sec. 300.156(b) that State qualifications for related services personnel must include qualifications that 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, are sufficient to ensure related services personnel are qualified to provide appropriate services to children with disabilities while maintaining the States' flexibility to establish appropriate personnel standards for related services personnel. We do not believe, therefore, that it is necessary to include additional regulation as suggested by commenters.

Section 300.156(b)(2)(ii) tracks the statutory requirement in section 612(a)(14)(B)(ii) of the Act, which requires that related services personnel not have certification or licensure requirements waived on an emergency, temporary, or provisional basis. We do not believe this provision unnecessarily hinders States from hiring professionals from other States or countries. States, in examining the credentials of prospective related services personnel from other States or countries, may find that their existing certification or licensure requirements are ones that these related services personnel could readily meet. Because each State has full authority to define and enforce its own requirements that personnel must meet in order to receive full State certification or licensure, States that employ related services personnel from other States or countries may, consistent with State law and policy, consider establishing a separate category of certification that would differ from emergency, temporary, or provisional certification in that the State would not be waiving any training or experiential requirements.

Changes: None.

Comment: One commenter recommended using nationally recognized standards to determine the qualifications of related services personnel. Another commenter recommended requiring SEAs to consider current professional standards in establishing appropriate qualifications for related services personnel. One commenter requested adding language to the regulations to prevent professional organizations from establishing personnel standards for related services personnel that override standards set by the SEA.

Discussion: We do not believe it is necessary to regulate as suggested by the commenters because these matters are better left to States to decide as States are in the best position to determine appropriate professional requirements for their States. There is nothing in the Act that requires an SEA to determine qualifications of related services personnel based on nationally recognized standards or current professional standards. Professional organizations may establish personnel standards for related services personnel that differ from the standards established by a State, but section 612(a)(14) of the Act clarifies that the State is responsible for establishing and maintaining personnel qualifications to ensure that related services personnel have the knowledge and skills to serve children with disabilities under the Act.

Changes: None.

Comment: A few commenters requested that the regulations specify that an SEA, and not the State, has the authority to establish certification and licensure qualifications of related services personnel.

Discussion: We do not believe it is necessary to change the regulation because Sec. 300.156(b), which follows the language in section 612(a)(14)(B) of the Act, clarifies that the SEA must establish qualifications for related services personnel that are consistent with State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to related services personnel.

Changes: None.

Comment: Some commenters requested that the regulations require related services providers who do not meet existing State standards to be supervised by qualified personnel.

Discussion: Related services providers who do not meet the personnel qualifications established by the SEA would not be considered qualified to serve children with disabilities under the Act even with supervision by qualified personnel. Section 300.156(d), consistent with section 612(a)(14)(D) of the Act, clarifies that each State must ensure that LEAs take measurable steps to recruit, hire, train, and retain highly qualified special education personnel to provide special education and related services to children with disabilities under the Act.

Changes: None.

Comment: Some commenters recommended that the regulations require high standards for paraprofessionals. Several commenters requested guidance on the appropriate use of paraprofessionals to ensure that paraprofessionals and assistants are not used as a means of circumventing certification and licensing requirements for related services providers. A few commenters requested language clarifying that the elimination of the requirement that State professional requirements be based on the highest requirements in the State in current Sec. 300.136(b) must not be used to justify the inappropriate use of paraprofessionals or related services providers. Another commenter asked that the regulations require States to ensure that paraprofessionals are properly supervised at all times. One commenter stated that the regulations should clarify the use of State standards for speech-language pathology paraprofessionals.

Discussion: We believe the provisions in Sec. 300.156, consistent with section 612(a)(14) of the Act, are sufficient to ensure that paraprofessionals meet high standards and that including additional requirements in these regulations is unnecessary. These provisions require an SEA to establish and maintain qualifications to ensure that personnel, including paraprofessionals, are appropriately and adequately prepared and trained, and have the content knowledge and skills to serve children with disabilities; and require the qualifications for paraprofessionals to be 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. In addition, the ESEA requires that paraprofessionals working in a program supported by title I of the ESEA, including special education paraprofessionals who assist in instruction in title I-funded programs, have at least an associate's degree, have completed at least two years of college, or meet a rigorous standard of quality and demonstrate, through a formal State or local assessment, knowledge of, and the ability to assist in instruction in reading, writing, and mathematics, reading readiness, writing readiness, or mathematics readiness, as appropriate. Paraprofessionals in title I schools do not need to meet these requirements if their role does not involve instructional support, such as special education paraprofessionals who solely provide personal care services. For more information on the ESEA requirements for paraprofessionals, see 34 CFR 200.58 and section 1119 of the ESEA, and the Department's nonregulatory guidance, Title I Paraprofessionals (March 1, 2004), which can be found on the Department's Web site at: http://www.ed.gov/policy/elsec/guid/paraguidance.pdf.

With regard to the commenter requesting that the regulations clarify the use of State standards for speech-language paraprofessionals, we do not believe it is appropriate to include clarification regarding a specific discipline in these regulations because the Act requires States to establish and maintain qualifications to ensure that paraprofessionals, including speech-language paraprofessionals, are appropriately and adequately prepared and trained.

Section 300.156(b)(2)(iii), consistent with section 612(a)(14)(B)(iii) of the Act, does specifically allow paraprofessionals and assistants who are appropriately trained and supervised, in accordance with State law, regulation, or written policy, to assist in providing special education and related services to children with disabilities under the Act. However, this provision should not be construed to permit or encourage the use of paraprofessionals as a replacement for teachers or related services providers who meet State qualification standards. To the contrary, using paraprofessionals and assistants as teachers or related services providers would be inconsistent with the State's duty to ensure that personnel necessary to carry out the purposes of Part B of the Act are appropriately and adequately prepared and trained. Paraprofessionals in public schools are not directly responsible for the provision of special education and related services to children with disabilities; rather, these aides provide special education and related services to children with disabilities only under the supervision of special education and related services personnel. We believe the provision in Sec. 300.156(b)(2)(iii) sufficiently ensures that paraprofessionals and assistants are adequately supervised and further clarification in these regulations is unnecessary.

The Act 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 FAPE under Part B of the Act. There is no need to provide additional guidance on how States and LEAs should use paraprofessionals and assistants because States have the flexibility to determine whether to use them, and, if so, to determine the scope of their responsibilities.

Changes: None.

Comment: One commenter recommended different requirements for paraprofessionals who perform routine tasks and those who perform specific activities to assist in the provision of special education and related services.

Discussion: We do not see the need to make a change to the regulations as suggested by the commenter because, under Sec. 300.156, consistent with section 612(a)(14) of the Act, SEAs have the responsibility for establishing and maintaining qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained. Furthermore, SEAs and LEAs have the flexibility to determine the tasks and activities to be performed by paraprofessionals and assistants, as long as they are consistent with the rights of children with disabilities to FAPE.

It should be kept in mind, however, that the ESEA has different requirements for paraprofessionals, including special education paraprofessionals, who assist in instruction in title I schools versus paraprofessionals in title I schools who do not provide instructional support, such as special education paraprofessionals who solely provide personal care services.

Changes: None.

Comment: A number of comments were received on the qualifications for special education teachers in Sec. 300.156(c) that were similar to the comments received regarding the definition of highly qualified special education teacher in Sec. 300.18.

Discussion: We combined and responded to these comments with the comments received in response to the requirements in Sec. 300.18.

Changes: None.

Comment: Some commenters requested that the regulations allow alternative routes to certification for related services personnel and other non-teaching personnel, just as such routes are allowed for highly qualified teachers.

Discussion: As we stated earlier in this section, section 612(a)(14)(B) of the Act, clarifies that the SEA must establish qualifications for related services personnel that are consistent with State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to related services personnel. While the Act does not address alternative routes to certification programs for related services personnel or other non-teaching personnel, there is nothing in the Act or the regulations that would preclude a State from providing for alternate routes for certification for related services personnel or other non-teaching personnel. It is, however, up to a State to determine whether related services or non-teaching personnel participating in alternative routes to certification programs meet personnel requirements established by the State, consistent with the requirements in Sec. 300.156 and section 612(a)(14) of the Act.

Changes: None.

Comment: Many commenters recommended that Sec. 300.156 provide more guidance to ensure that States and LEAs implement proven strategies for recruiting and retaining qualified personnel. A few commenters stated that this is especially important for speech-language pathologists because large caseloads, increased paperwork, and lack of time for planning and collaboration have been shown to contribute to their burn out and attrition. Several commenters recommended that strategies to recruit and retain qualified personnel include reasonable workloads, improved working conditions, incentive programs, salary supplements, loan forgiveness, tuition assistance, signing bonuses, streamlined application processes, State and national advertising venues, school and university partnerships, release time for professional development, certification reciprocity between States, grants to LEAs for recruitment and retention programs, alternate professional preparation models, caseload size standards, and classroom size standards.

One commenter requested that the requirements to recruit, hire, train, and retain highly qualified personnel in Sec. 300.156(d) apply to paraprofessionals who provide special education and related services.

Discussion: The list of strategies recommended by the commenters includes many strategies that may be effective in recruiting and retaining highly qualified personnel; however, we do not believe it is appropriate to include these or other strategies in our regulations because recruitment and retention strategies vary depending on the unique needs of each State and LEA. States and LEAs are in the best position to determine the most effective recruitment and retention strategies for their location.

With regard to the comment regarding the applicability of Sec. 300.156(d) to paraprofessionals who provide special education and related services, Sec. 300.156(d), consistent with section 612(a)(14)(C) of the Act, applies to all personnel who provide special education and related services under the Act, including paraprofessionals.

Changes: None.

Comment: A few commenters stated that the rule of construction in Sec. 300.156(e) is inconsistent with the rule of construction in the definition of highly qualified teacher in proposed Sec. 300.18(e). Some commenters requested that the regulations clarify that the rule of construction in Sec. 300.156(e) is applicable to both administrative and judicial actions.

A few commenters requested that the regulations specify that a parent may file a State complaint with the State regarding failure of their child to receive FAPE because staff is not highly qualified. However, several commenters stated that parents should not be allowed to file a State complaint under Sec. Sec. 300.151 through 300.153 regarding staff qualifications.

Discussion: We agree that the rules of construction in both proposed Sec. 300.156(e) and proposed Sec. 300.18(e) must be revised so that both rules are the same. The changes will clarify that a parent or student may not file a due process complaint on behalf of a student, or file a judicial action on behalf of a class of students for the failure of a particular SEA or LEA employee to be highly qualified; however, a parent may file a complaint about staff qualifications with the SEA. In addition to permitting a parent to file a State complaint with the SEA, an organization or an individual may also file a complaint about staff qualifications with the SEA, consistent with the State complaint procedures in Sec. Sec. 300.151 through 300.153. We believe that this is appropriate given the wording of section 612(a)(14)(E) of the Act "...or to prevent a parent from filing a complaint about staff qualifications with the State educational agency" and incorporated in the regulations in Sec. 300.156(e) and new Sec. 300.18(f) (proposed Sec. 300.18(e)). By incorporating the wording from the construction clause in section 612(a)(14)(E) of the Act in the regulations as previously noted, parents and other interested parties, may seek compliance through the State complaint process.

Changes: We have added "or a class of students" to Sec. 300.156(e) to clarify that a judicial action on behalf of a class of students may not be filed for failure of a particular SEA or LEA employee to be highly qualified. We have substituted the word, "employee" for "staff person" to be more precise and for consistency with the rule of construction in new Sec. 300.18(f) (proposed Sec. 300.18(e)). We have also reformatted Sec. 300.156(e).

Comment: Some commenters recommended adding language to the regulations restricting a parent's right to file a complaint regarding an LEA's failure to take measurable steps to recruit, hire, train, and retain highly qualified personnel.

Discussion: We believe the regulations do not need clarification. Section Sec. 300.151(a) is sufficiently clear that an organization or individual may file a State complaint under Sec. Sec. 300.151 through 300.153 alleging a violation of a requirement of Part B of the Act or of this part. This includes the requirement that an LEA take measurable steps to recruit, hire, train, and retain highly qualified personnel consistent with section 612(a)(14)(D) of the Act.

Changes: None.

Comment: Some commenters requested that the regulations clarify that, unless the State has statutory control over district staffing, parents cannot obtain compensatory damages or services or a private school placement based on the lack of highly qualified personnel.

Discussion: We do not agree that the exception requested by the commenter should be added to the regulations because new Sec. 300.18(f) (proposed Sec. 300.18(e)), and Sec. 300.156(e) are sufficiently clear that nothing in part 300 shall be construed to create a right of action on behalf of an individual child for the failure of a particular SEA or LEA staff person to be highly qualified.

Changes: None.

Comment: One commenter recommended that the qualifications of all personnel should be made a matter of public record.

Discussion: To do as the commenter recommends would add burden for local school personnel and it is not required under the Act. In contrast, title I of the ESEA required that LEAs receiving title I funds provide parents, at their request, the qualifications of their children's classroom teachers. There is nothing in the Act or these regulations, however, which would prevent an SEA or LEA from adopting such a policy should it wish to do so. In the absence of a congressional requirement in the Act, such policies are matters best left to State law.

Section 1111(h)(6) of the ESEA requires LEAs to inform parents about the professional qualifications of their children's classroom teachers. The ESEA requires that at the beginning of each school year, an LEA that accepts title I, part A funding must notify parents of students in title I schools that they can request information regarding their children's classroom teachers, including, at a minimum: (1) whether the teacher has met the State requirements for licensure and certification for the grade levels and subject-matters in which the teacher provides instruction; (2) whether the teacher is teaching under emergency or other provisional status through which State qualification or licensing criteria have been waived; (3) the college major and any other graduate certification or degree held by the teacher, and the field of discipline of the certification or degree; and (4) whether the child is provided services by paraprofessionals, and if so, their qualifications. In addition, each title I school must provide each parent timely notice that the parent's child has been assigned, or has been taught for four or more consecutive weeks by, a teacher who is not highly qualified. These requirements apply only to special education teachers who teach core academic subjects in Title I schools.

Changes: None.