POLICY LETTER: December 15, 2008 to National Association of Private Special Education Centers Executive Director and CEO Sherry Kolbe

12/15/2008Sherry KolbeExecutive Director and CEO NAPSEC1522 K Street, N.W.Washington DC 20005-1202Dear Ms. Kolbe:The U.S. Department of Education, Office of Special Education Programs (OSEP) is in receipt of your letter dated July 18, 2008, requesting clarification on Highly Qualified teacher requirements. Specifically, you requested information about the Highly Qualified teacher requirements for teachers who teach to functional levels versus grade levels. You stated that members of your organization, the National Association of Private Special Education Centers (NAPSEC), serve students that cannot be successfully educated in the regular education classroom and that these students are usually the more severe and profound population of special education students. The Part B regulations implementing the 2004 reauthorization of the Individuals with Disabilities Education Act (IDEA), at 34 CFR 300.18, defines the term highly qualified special education teachers. As you know, 34 CFR 300.18(h) specifies that this definition does not apply to teachers hired by private elementary and secondary schools. You indicate though, that some States are requiring, as a matter of State law, that private school teachers in private schools that accept placements by public agencies meet the same highly qualified standards that the States apply to teachers in public schools. In this context you ask for clarification of the highly qualified requirements for teachers teaching students at a functional, rather than grade, level.Under 34 CFR 300.18(c) the requirements are set out for special education teachers teaching to alternate academic achievement standards established by a State under 34 CFR 200.1(d). This section provides:When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate academic achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the profession, may either:Meet the applicable requirements of section 9101 of the Elementary and Secondary Education Act (ESEA) and 34 CFR 200.56 for any elementary, middle, or secondary school teacher who is new or not new to the profession; or Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of subparagraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, as determined by the State. (Emphasis added)The regulations promulgated under Title 1 of the ESEA permit States to use alternate academic achievement standards to evaluate the performance of a small group of children with the most significant cognitive disabilities who are not expected to meet grade-level standards even with the best instruction. An alternate academic achievement standard sets an expectation of performance that differs in complexity from a grade-level academic achievement standard. Therefore, 34 CFR 300.18(c)allows special education teachers teaching exclusively children who are assessed against alternate academic achievement standards to meet the highly qualified teacher standards that apply to elementary school teachers, or, if a teacher (who is teaching exclusively to alternate achievement standards) is teaching students who need instruction above the elementary school level, the teacher must have subject matter knowledge appropriate to the level of instruction needed to effectively teach to those standards. The purpose of this requirement is to ensure that teachers exclusively teaching children who are assessed based on alternate academic achievement standards above the elementary level have sufficient subject matter knowledge to effecBased on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented.We hope this provides the information you need. If you have questions about this issue, please do not hesitate to contact Laura Duos in the Office of Policy and Planning at (202) 245-6772.Sincerely,/s/William W. KnudsenActing DirectorOffice of Special Education Programs Page PAGE 2 Sherry Kolbe