News From the Front

By Heather Zakson, Esq.

“If the Board of Education had authorized the proposed regulation, thousands of children would have been stranded without their aides and therapists.

And the public schools, unable to provide for these students’ needs, would have been in legal jeopardy with no way to implement IEPs.”

Program Limbo?

Where does a family go when there is no program in the public school district where their child can benefit? What does a family do when the teachers, aides and staff at the public school just don’t have what it takes to help the child learn?

Many Must Look to Non-Public Agencies and Schools

State and Federal special education law provide that when a school district can’t provide the services that a child needs to enjoy a free and appropriate public education, the district can (and should) secure those services from an outside source.

Districts contract with “non-public agencies” and “non-public schools” that are private organizations with special state certification to provide publicly-funded special education services. They more commonly referred to as “NPA” and “NPS” providers.

NPA and NPS Services

Some children attend NPS schools full time. NPS schools are regarded as among more restrictive placements, because typically, a NPS school will enroll only children with disabilities, meaning those students cannot interact at school with typically-developing peers.

Other students divide their time and are “dual-enrolled” in the NPS and public schools, sometimes to provide an opportunity to be in the less restrictive environment of the public school.

NPA providers can provide clinical services such as physical therapy or speech therapy, or facilitative services within the school environment, for example, a behavior aide who helps a child to function in a regular classroom with typical peers by supporting the child in his or her specific areas of need.

Quality Control

The state has established a stringent set of regulations that govern the qualifications of NPA and NPS staff and programs.

Most of the requirements are more demanding than those imposed on public school district staff and programs, and it’s the quality of programming offered by the non-public agencies that equips them to offer a level of intervention that is beyond what the school district’s internal systems can provide.

How are those regulations developed? A small number of policy analysts within the bureaucracy of the California Department of Education in Sacramento examine regulations and propose changes. Then, in a process that is virtually hidden from public scrutiny, CDE passes the regulations to the State Board of Education for approval and adoption into the California Code of Regulations (the regulations that govern NPA and NPS providers are found in Title 5 of the CCR).

Bureaucracy And Your Child’s Education

This means that the CDE policy analysts who have very little interaction with special education students have a great deal of influence over what kind of services are available for those students. Last fall, CDE proposed amendments to section 3065 of CCR Title 5 that would have easily put almost every California NPS and NPA provider of behavior intervention services out of business.

The policy analysts had intended to increase the level of training required for behavior interventionists such as classroom behavior aides and ABA therapists, instituting a requirement that each interventionist complete a semester’s worth of specialized coursework at a university.

The problem is, very few universities in California even offer the coursework; private university correspondence courses are impractical and expensive, adding thousands of dollars to the cost of training each person; and even individuals who only fell short by a couple of credits would need at least a semester to complete them.

If the Board had authorized the proposed regulation, thousands of children would have been stranded without their aides and therapists. And the public schools, unable to provide for these students’ needs, would have been in legal jeopardy with no way to implement IEPs.

11th Hour Rescue

Why didn’t this special education meltdown happen? At the eleventh hour, our office learned about the new regulations that had been proposed to the Board of Education. There was one last opportunity for public input to the process before the Board acted on the Department of Education’s recommendation and authorized the regulation change.

We contacted NPA’s, NPS’s and a network of parents and interest groups who, within a week, generated a flood of letters, faxes and emails to the Department of Education – resulting in a withdrawal of the proposed amendment and a complete re-tooling of the policy initiative.

This experience taught us, that contrary to how we sometimes feel, our special education family does have the power to influence policy at the statewide level.

This fall, the Department of Education proposed a new amendment to section 3065 that brings the California regulations in line with the standard for training and qualifications that have been widely adopted by behavior interventionists nationwide, with a reasonable timeframe for compliance.

There is no dispute that high standards for qualifications and training of NPA and NPS staff are important. It is also important that the Department of Education stay in touch with the agencies that are governed by those regulations, and most critically, with the students and the families who rely on the services that NPA’s and NPS’s provide.

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