Despite Teacher Shortage, OSEP Says IDEA Compliance Requires Certified Teachers, No Waivers
The recent teacher shortage has caused districts to get creative regarding schedules, student grouping, and staff assignments. But just how creative can you be when it comes to the employees in your special education classrooms? The Office of Special Education Programs (OSEP) issued guidance on this topic on October 4, 2022, indicating that proper credentials will be an area of focus as we continue to navigate the post-COVID era.
In its memorandum, OSEP asserts that providing a free and appropriate public education (FAPE) includes compliance with the Individuals with Disabilities Education Act (IDEA), which includes ensuring that special education teachers and related services providers are appropriately and adequately trained. States must establish qualifications to ensure that special education personnel have the content knowledge and skills to serve children with disabilities. But the memo clarified that many states have policies and procedures for emergency permitting that are not consistent with requirements under the Individuals with Disabilities Education Act (IDEA). Specifically, the IDEA prohibits State Educational Agencies (SEAs) from waiving certification or licensure requirements on an emergency, temporary, or provisional basis. Thus, special education teachers generally must be properly certified. However, there is one approved exception to this general rule.
To properly serve as a special education teacher without first obtaining full certification, the teacher must be actively participating in an alternate route to special education certification program wherein the teacher:
(A) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;
(B) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;
(C) Assumes functions as a teacher only for a specified period of time not to exceed three years; and
(D) Demonstrates satisfactory progress toward full certification as prescribed by the State.
34 C.F.R. § 300.156(c).
In Texas, the teacher must also obtain probationary certification through the State Board for Educator Certification (SBEC). This certification is only valid for one year, after which the teacher must have completed all training and apply for standard certification.
This OSEP guidance, which is based on the IDEA regulations, appears to negate any other state alternatives to conventional certification that do not require the prospective teacher to be in a certification program. Of course, these options are still available for your general education teachers, but for special education, teachers must either be fully certified or participating in an alternative certification program that meets the above requirements. At the same time, note that the regulations specifically state that students do not have a right of action based on a special education teacher’s lack of required certification, instead any due process complaint must challenge the district’s identification, evaluation, placement, or provision of FAPE to the student. So, when faced with a lack of certified teachers, districts should continue to be creative about identifying, recruiting, retaining, and utilizing certified special education personnel, but also focus on how to provide students their IEP services in a way calculated to enable students to make progress appropriate in light of their individual circumstances.
For additional information on this topic or to request assistance regarding your options in this teacher shortage, contact the author of this post or any member of the Thompson & Horton Special Education Team.