Last summer and fall, the Utah State Board of Education adopted a new special education rule. Most of the changes to that rule are quite appropriate. However, several of the changes to Section X, the funding section, are problematic.
School districts and charter schools want to use a fully licensed special education teacher with their special education students. However, there is a limited supply of special education teachers, so school districts and charter schools also rely on appropriately trained and supervised paraprofessionals. Unfortunately, the board’s special education manual (specifically Section X.U, defining “incidental benefit”) significantly narrowed when school districts and charter schools may use special education dollars to pay paraprofessionals to serve students with a disability.
Federal law has long permitted school districts and charter schools to use special education funds to pay those paraprofessionals, even if the paraprofessional’s services also provide “incidental benefit” to students without an individual education plan. Per federal law, “incidental benefit” may accrue to “one or more” students without a disability.
Special education law permits Utah to adopt more stringent standards than the federal government, and the Utah board did that. Under the board’s more stringent definition of “incidental benefit,” a school may use special education funds to pay for a paraprofessional working with a group of 10 or more students only if
a) At least half of the students in the group have an IEP, and
b) Those students’ IEPs all require the services provided by the paraprofessional.
While many charter schools have more than 12% of their students with IEPs, it is almost impossible for a group that meets the requirements above to exist “naturally” in a classroom. In other words, the board’s more stringent definition of “incidental benefit” means schools almost have to use “pull out” models of special education, since “push in” models can almost never meet the board’s more stringent definition of “incidental benefit.”
Special education research and law show that a student with an IEP is more successful when educated in that student’s “least restrictive environment,” as determined by the IEP team. Unfortunately, the board’s more stringent definition of “incidental benefit” pushes schools away from less restrictive environments and towards more restrictive environments.
While the board was considering its new rules last year, we expressed concerns about those more stringent standards. When the board opted for the more stringent definition, Sen. Jake Anderegg opened the bill file that became Senate Bill 175. Our goal has always been very simple. We want to make sure that principles of “least restrictive environment” are among the highest values in Utah’s special education system.
To accomplish that, SB 175 adopts federal definitions of “least restrictive environment,” “incidental benefit,” “IEP team” and “specially designed instruction.” SB175 further directs the State Board of Education to require LEAs to provide special education in the “least restrictive environment.”
Critics of SB175 have claimed that the bill sets up one set of rules for how schools can use state special education funds, and another set of rules for how schools can use federal special education funds. That is false. Instead, SB175 rejects the board’s more stringent standard for “incidental benefit,” and adopts the existing federal standard. It requires one standard, the more flexible federal standard.
SB175 requires school districts and charter schools to educate all students in each student’s “least restrictive environment.” And by adopting the federal standard, it permits us to use all the flexibility the federal government allows. To best educate Utah’s students with disabilities, our schools need as much flexibility as the federal government permits. And that’s what SB 175 does.
Sen. Jake Anderegg, R-Lehi, represents District 13 in the Utah Senate.
Royce Van Tassell is the executive director of the Utah Association of Public Charter Schools.