Shayne L. Aldridge, a former teacher and special education administrator, is an attorney in the Springfield office of Hodges, Loizzi, Eisenhammer, Rodick & Kohn.

As did Hamlet's mother, Queen Gertrude, the Illinois State Board of Education decried "more matter, with less art" in special education classrooms when finalizing its new class size and work load regulations in 2007. In essence, the state board said no more rhetoric — get on with educating special needs children.

Beginning with the 2009-10 school year, districts must comply with a new set of rigorous class-size standards that reduce the number of special education students allowed in special and general education classrooms. The regulations also put class size and work loads in the category of subjects to be bargained in contract negotiations by requiring school boards to adopt a plan to address special education teacher work loads.

Compliance will be problematic for school districts and there seems to be no way around the compounding affects this will have on educational programs.

Federal law mandates that special education students be educated with their non-disabled peers to the greatest extent practicable. Beginning in 2009-10, the new state class-size regulations will require that when a student's Individual Education Plan (IEP) calls for services to be provided in a general education classroom, the student must be served in a class composed of students of whom at least 70 percent are without IEPs. The class must use the general education curriculum while being taught by an instructor certified for general education. Additionally, the classroom cannot be a general remedial classroom through practice or designation.

While this is a laudable goal, it will be difficult for some school districts to accomplish. The regulation implies that any student with an IEP counts toward the 30 percent special education student limit in a regular education classroom. Most notably, this includes those students in the early grades who only receive speech and language services for minimal time, but are in the general education classroom the entire rest of the school week.

Because speech and language services are very common at the early grades, the scheduling and class assignment for elementary schools will turn into a frightful task for the building principal.

In the upper grades, the problems dissipate some, but are not completely removed. High schools also will find themselves in the position of spending administrative time scouring their master schedules to ensure that special education students do not out-number their non-disabled peers in the general curriculum classrooms.

The bigger problem for middle schools and high schools is that special education teams are accustomed to placing students in lower track, remedial classes in order to meet the students' regular education needs — a strategy unavailable under the new regulations. This will force teachers and administrators to create an adequate number of general track courses to accommodate the influx of special education students who cannot occupy more than 30 percent of the general classroom seats.

One unintended consequence may be that school districts become more willing to take a closer look at Section 504 plans prior to referring an at-risk student for a special education evaluation. The Rehabilitation Act of 1973 established Section 504 plans, which prohibit discrimination of, or denying services to, an individual with a disability, even if that person is not eligible for special education services. The new regulations expressly apply the class-size limitations to students with IEPs, but are silent regarding Section 504 plans.

School administrators, many of whom dislike discussing Section 504 plans and have avoided them in the past, may now come to embrace them as a way to meet both the law and students' educational and behavioral needs.

The new regulations define class size to mean the total number of students a teacher serves during any special education class. Currently, regulations separate and determine special education classrooms by the disability category of the students in that classroom. For example, instructional classes for children whose primary disability is a severe visual, auditory, physical, speech or language impairment, autism, traumatic brain injury, or an emotional disability or behavioral disorder have a maximum enrollment of eight students. The district, however, may add up to five more students, if the program includes a classroom aide.

When the 2009-10 school year begins, the new regulations will start to phase out this type of disability placement and focus on the amount of time the students spend in the special and general education environments.

As school districts assign students to these programs, they must consider the students' ages, the nature and severity of their disabilities, their educational needs and the degree of intervention necessary. The IEP team is to focus on the student's educational and behavioral needs, not his or her disability.

The new regulations also now classify students according to the percentage of time they spend in special education and limit the number of students in each percentage category. Classes in which all the students receive special education services for 20 percent of the school day or less must have at least one qualified teacher for each 15 students in attendance during any given class period. Classes between 20 percent and 60 percent of the school day may only have 10 students in attendance during that class period.

The most intensive programs, where students spend more than 60 percent of their school day in special education programs, must have no more than eight students in attendance during that class period. The problem with the new system is that one student in the classroom with a higher percentage of time in the special education classroom lowers the class size limit for the entire class.

Currently, classification is by a more general percentage standard and disability category. Students who receive special education services for 50 percent or more of the school day are "instructional" students and those receiving 49 percent or less are "resource" students. Enrollment in a "resource" classroom is limited to the number of students who can effectively and appropriately receive assistance, up to a maximum of 20 students. "Instructional" student enrollment in a special education classroom is dictated by the students' disability categories and is lowered as the severity of the students' disabilities increases.

The new regulations attempt to approximate the existing classroom limitations, without the labels. In Illinois, the state board has had its problems with federal judges regarding the placement of students into programs according to a label rather than the students' academic or behavioral needs.

In an effort to ward off any criticism, and, in keeping with the overarching objectives of the federal law, the state board eliminated the ability of school districts to place students according to their disability. School districts must now look at the amount of time the student spends in the special education program, rather than in a classroom that has the same name as the student's disability.

Notwithstanding all of the number crunching that school districts may have to do to make class-size limitations work, school districts still may have to limit the size of special education classes to meet the students' needs. The determining factors will be the type of individualized instruction and the amount of special education services the students require.

School districts also may need to further restrict class sizes to accommodate the teacher time needed to address the students' needs for related services in accordance with IEPs. The goal, as always, is to provide a free, appropriate public education in the least restrictive environment to which students are entitled under state and federal law.

In 1955, Tennessee Ernie Ford sang, "You load 16 tons and what do you get? Another day older and deeper in debt."

In the business world, a common definition of "work load" is a measure of the amount and types of work performed by an individual within a given period of time. This is both a quantitative measure of the total work performed and a qualitative measure of the person's perception of his ability to perform the work.

The new work load regulations for special education will drive school districts to look at and eventually plan for the "amount and types of work" preformed by a special education teacher during a school day. The regulations require districts to develop and adopt a plan to specify the limits of the work load of its special educators.

The language implies that the reason for the work load limit is to ensure that students receive the services required under their IEPs. This would include academic as well as all needed ancillary and support services.

One common complaint in the special education field is that there are not enough hours in the school day in order to provide services at the requisite level of intensity for students' needs. The regulations seem to be calculated to force school districts to take this into account when looking at staffing levels for special education programs.

The state board wants all plans in place for 2009-10, or as soon as possible after that, if a current collective bargaining agreement is in place that runs through the school year.

The teachers union must be involved in developing the plan, which makes sense as work load clearly fits into "wages, hours, terms and conditions of employment," the statutory subjects of bargaining. School districts must engage the "affected employees" in developing the plan, which has to be developed "in cooperation with" those most intimately involved: the special educators.

This means school boards must go a little further than just showing "good faith" in developing the plan with special education staff. If there is an exclusive bargaining representative in the school district, the plan must be developed in accordance with the Illinois Educational Labor Relations Act. Accordingly, while the school board must develop the plan "in cooperation with" its staff, it does not have to reach agreement on the plan, so long as it does not engage in an unfair labor practice.

Even though the regulation is titled "work load for special educators" it does not define the term "special educator." Broadly construed, this term would mean everyone from the classroom teacher to school psychologists to social workers to occupational therapists. Being undefined makes a school board's job of developing the plan "in cooperation with" everyone who could be a "special educator" very difficult.

This lack of clarity extends well beyond the development stage and makes it difficult or impossible for a school board to know whose work loads must be limited.

One intention of the new regulations is to ensure that students with IEPs receive the free, appropriate public education that school districts are mandated to provide. Special educator work load plans are to be "based on an analysis of the activities for which the district's special educators are responsible."

The plan should cover what special education teachers and staff do in their daily duties when providing special education services. The plan also must cover: individualized instruction; consultative services and other collaboration among staff members; attendance at IEP meetings and other staff conferences; and paperwork and reporting.

Individualized instruction is the mainstay of special education. With the reauthorization of the federal special education law, a student's free, appropriate public education is to be based on quality instructional methods and proven curriculum provided in special education classrooms. Ensuring that methods and curriculum used in those classrooms are scientifically-based and peer-reviewed takes time. Then, once the methods and curriculum are chosen, the teacher must have time to impart the instruction to the students. That makes time an important element of the work load equation.

The plan must address time for consultation and collaboration. Since the 1980s, special and general education teachers have tried to find more ways to work together for the good of special needs students. The plan is a way to ensure that teachers have the time to meaningfully confer with each other regarding individual students. Consultation also is a large part of the related services providers' days. This would encompass time such as when an occupational therapist confers with a general education teacher regarding a student's handwriting, or when the speech pathologist meets with a parent regarding home therapy.

Very few other activities take up as much time for the special educator as the IEP meeting. The time spent in the actual meeting may last less than an hour, but preparation can take many hours. Computerized IEP systems have helped the process, but the amount of time a special educator spends preparing and drafting IEP documents is still two or three times the amount spent in the actual meeting.

IEPs of 25 or 30 pages are not unheard of in the field of special education. Paper work and reporting historically have taken time away from student instruction and service delivery. The plan must address how the school district will account for the time a special educator spends in completing paper work and drafting reports. Because special education compliance is document driven, school districts are now faced with addressing the problem head-on.

To quote Dr. Seuss: "You have brains in your head, you have feet in your shoes, you can steer yourself in any direction you choose." So, how should a school board approach developing a plan for the 2009-10 school year as required under the new regulations?

First, begin the process now. It would be unwise for a school board to wait until June 30, 2009, to start discussing plan development. The best avenue for a school board would be to establish a team to engage in the dialogue needed for development.

The team should consist of administration, affected special education teachers (and other special educators if in the bargaining unit) and union representatives. Once the team is formed, begin the process of determining the "measure of the amount and types of work performed by an individual within a given period of time."

Next, once the team is engaged in "cooperating with" each other, it should draft language that addresses the issues in the district. There is no requirement that the plan be incorporated into a collective bargaining agreement, only that it be developed to limit the work loads of special educators. The team should work cooperatively to establish a plan that is acceptable to the special educators and school administrators in their district.

The board must remain mindful that it is financially responsible to the district and the plan should not create an undue fiscal burden. Most likely this would come in the form of additional staff.

Finally, the board has the ultimate authority to adopt or reject the plan. If the school board does not believe the plan is in the best interest of the district, it should send the plan back to the team with comments for revisions. Even though the "in cooperation with" language means a little more than in "good faith," it does not mean that the school board gives up its right to reject a plan that it believes is unsound.

A school board has no choice but to accept its fate under these new regulations and move ahead to develop its plan. Class size and work loads are the state board's way of telling school districts that it wants "more matter, with less art."

115 ILCS 5/1 et seq.

23 Illinois Administrative Code §§ 226.731 and 735

20 U.S.C. § 1401 et seq. (Individuals with Disabilities Education Act)

J.P. Friedman, Dictionary of Business Terms, Third Edition, Barron's Education Series Inc., 2005

Theodor Seuss Geisel, Dr. Seuss, 1904-91

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