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Spotl ight On Practice

Post-Hughes Bil l Behavior Requirements

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What We’ll Focus On. . . . Overview of AB 86 IEP Requirements for Students Whose Behavior

Impedes Learning Addressing Behavior for Students Requiring

Manifestation Determinations FBAs BIPs Use of Aversives and Emergency Interventions

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I . Overview of Assembly Bil l 86

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Some Background Hughes Bill enacted in 1990 Behavior intervention program mandate for

students who exhibited “serious behavioral problems”

Requirements were more stringent than federal law (IDEA)

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Assembly Bill 86 (2013) AB 86 repealed the Hughes Bill

No longer required to conduct FAAs and develop “Hughes Bill” BIPs for students with “serious behavioral problems”

IDEA controls (address behavior when it impedes student learning or that of others)

Address behavior through IEP process

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Assembly Bill 86 (2013) AB 86 (cont’d)

Behavior Intervention Case Manager (“BICM”)BICMs are no longer required when BIP is being

developed/implementedSuperintendent of Public Instruction to review

sufficiency of behavior training in current teacher credentialing requirements

May use Board Certified Behavior Analyst for assessments and services

Also clarified rules for use of emergency interventions (more on this later)

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Practice Pointer

After AB 86, it is important to make sure your district’s Board Policies and Administrative Regulations are up to date

Review your current policies to ensure information about FBAs and BIPs are in accordance with state and federal law.

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I I . IEP Requirements for Students Whose Behavior

Impedes Learning

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When Must Behavior Be Addressed?

1. When behavior “impedes” learning—the student’s, or others’

2. For certain disciplinary actions resulting from student’s misconduct

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Who DeterminesWhen Behavior Impedes Learning?

IEP team decides No guidance in either federal or state law Extensive case law history offers some

guidance and provides examples

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Examples Cases have found behavior impeded learning

when: Repeated disruption of teacher and/or students during

classroom instruction Refusal to participate and follow directions in class Classroom outbursts and/or temper tantrums Sleeping in class

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Federal Law If behavior impedes learning, IEP team

must consider positive behavioral interventions, supports, and other strategies to address that behavior

(34 C.F.R. §300.324(a)(2))

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What Types of Behavior Interventions and Supports Must Be Considered? Once again, law is silent Up to the IEP team to decide But . . . LRE obligation applies

Consider more restrictive options only when lesser ones fail to adequately address the problem behavior

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Accommodations,Modifications,

and/or Adaptations

Supplementary Aids & Services

IEP Goals

Functional Behavioral Assessment

Behavioral Intervention Plan

Change in Placement

View Behavior Interventions on a Continuum

School Rules

Classroom Behavior

Management

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Practice Pointer

Include all IEP team members in any discussion about student’s behavior

Parents, teachers, service providers can provide vital information

And document on the IEP and/or IEP notes What behavior was consideredWhat supports were discussedWhat was decided

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I I I . Addressing Behavior for Students Requiring a

Manifestation Determination

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Manifestation Determinations Legal Review

Required within 10 school days after proposed removal that would be change of placement

MD decisions reached by team consensus; Parent who disagrees may seek due process

Behavior is manifestation of disability if:Caused by, or had direct and substantial relation to,

student’s disability; ORWas direct result of failure to implement IEP

(34 C.F.R. §300.530(e))

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Obligation to Address Behavior If behavior is manifestation of disability

Conduct FBA (unless one had been previously conducted before behavior giving rise to change of placement occurred)

Develop and implement BIPIf BIP is already in place, review and modify as

necessary to address behaviorReturn student to previous placement, unless parent

and district agree to change of placement as part of modification of BIP

(34 C.F.R. § 300.530(c)-(d); 34 C.F.R. § 300.532(c))

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Obligation to Address Behavior If behavior is not manifestation of disability

Subject to same sanctions as nondisabled studentMust continue to receive FAPEMust receive, as appropriate, an FBA and behavior

intervention services and modifications “that are designed to address the behavior violation so that it does not recur”

(34 C.F.R. § 300.530(c)-(d); 34 C.F.R. § 300.532(c))

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IV. Functional Behavioral Assessments (FBAs)

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What Is an FBA? Process that searches for explanation of the

purpose behind student’s behavior No formal IDEA requirements for specific

process of how to conduct IDEA does not require that an FBA precede

all behavioral interventions The regulations focus on interventions and strategies,

not assessments although an FBA “typically precedes” developing positive behavioral intervention strategies

(71 Fed. Reg. 46683 (Aug. 14, 2006).)

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FBA’s Purpose = To provide the IEP team with more information

regarding the problem behavior(s)

FBA’s Goal = To develop a hypothesis about the behavior

and to develop replacement behaviors that are acceptable

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When Must an FBA Be Conducted? When manifestation determination concludes that

Student’s behavior giving rise to disciplinary removal was related to disability

If appropriate, when Student is removed for more than 10 consecutive school days for conduct not determined to be a manifestation of his/her disability (or removed to an IAES)

To be considered (as part of positive behavior intervention and supports) when IEP team determines that student’s behavior impedes his/her own learning or that of others

(34 C.F.R. 300.530(f); 34 C.F.R. 300.324(a)(2))

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Practice Pointer

Not every behavior challenge a student presents warrants an FBA

When deciding if an FBA is needed, look to:Whether behavior is impeding learningWhether behavior is not readily explainable If answer to both is “yes”, FBA should be

conducted

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How Are FBAs Conducted? Decisions on areas to be assessed as part of FBA

are determined by specific needs of student Multiple ways by which underlying cause of

behavior may be uncovered No mandated procedures, timelines, required

personnelLaws regarding assessments apply

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Who Conducts FBAs? IEP team has obligation to ensure FBA is

completed when it is required, but IDEA does not suggest IEP team must itself conduct the FBA

California law: “Trained and knowledgeable personnel” Board Certified Behavior Analyst (“BCBA”)

may conduct FBAs

(Ed. Code, §56525)

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Parental Consent Requirements Will the FBA focus on the educational and

behavioral needs of a specific child? If so, the FBA qualifies as an assessment

or reassessment under the IDEA and California law; requires all of the same procedural safeguards, including the need to seek parental consent

If the district uses an FBA as a widespread intervention tool to improve the behavior of all students in its schools, the FBA is not an evaluation and parental consent is not necessary

(Letter to Christiansen (OSEP 2007) 48 IDELR 161)

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What Is an “Independent FBA”?

Parent who disagrees with an FBA that is conducted in order to develop an appropriate IEP is entitled to request an IEE (i.e. an independent FBA)

Same IEE rules apply District can defend its FBA at due process

or agree to fund independent FBA Must meet district criteria

(Questions and Answers on Discipline Procedures (OSERS 2009) 52 IDELR 231)

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What Is an “Independent FBA”? Case example: Penn-Delco Sch. Dist. (SEA PA) Parent awarded independent FBA because

District’s FBA: Did not provide understanding as to causes of Student’s

aggressive behaviors Did not help staff predict when behaviors would occur

As a result, staff were unable to formulate effective interventions or strategies to prevent behavior from occurring

(Penn-Delco School Dist. (SEA PA 2013) 113 LRP 25807)

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Remember FBA vs. FAA: Know the Difference!! FAA

FAA under Hughes Bill: Highly prescribed and regulated primarily for use with students demonstrating severe behavior problems

No longer required! FBA

FBA under federal law: No specific requirements for conducting

Might consist of a record review, interview and/or direct observation

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V. Behavioral Intervention Plans (BIPs)

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What Is a BIP? Written document addressing how IEP team

will improve difficult/challenging behaviors Proactive, not reactive Generally BIPs are based on assessment of

student’s behaviors Converts observations in FBA into plan of action for

managing student’s behavior But, except in discipline context, no specific IDEA

requirement to conduct FBA before developing BIP

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When Must A BIP Be Developed? When manifestation determination concludes that

Student’s behavior giving rise to disciplinary removal was related to disability

If appropriate, when Student is removed for more than 10 consecutive school days for conduct not determined to be a manifestation of his/her disability (or removed to an IAES)

To be considered (as part of positive behavior intervention and supports) when IEP teams determines that student’s behavior impedes his/her own learning or that of others

(34 C.F.R. §300.530(f); 34 C.F.R. §300.324(a)(2))

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Remember

Student’s need for BIP is determined by IEP team on case-by-case basis

And there is generally no requirement to develop BIPs to address behavior outside of school if student makes educational progress in the classroom

BUT . . . failure to develop a BIP when needed may result in denial of FAPE

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Procedural Requirements for BIPs Developed as component of IEP

No specific requirement in IDEA, unlike Hughes Bill

But BIP is element of overall offer of FAPE and, therefore, is a part of the IEP

IEP parental consent rules apply

(34 C.F.R. §300.324(a)(2); 34 C.F.R. §300.300)

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Attach the BIP to the IEP because…

It must be attached to the IEP if the student needs it to receive FAPE

It should be developed by the IEP team

This assures parental consent

Everyone implementing the IEP needs to see it

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Content Requirements of BIPs IDEA says . . . nothing But all BIPs usually contain:

Description of behavior that is interfering with Student’s learning or learning of others

Expected behavioral changesList of positive strategies and supports that will

be used to change the behavior Must contain enough information to allow

staff to implement it successfully

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Content Requirements of BIPs Examples of BIPs that have been found to

have denied FAPE A BIP that failed to match list of strategies with list of

specific behaviors A BIP that called for supervision of Student but failed to

indicate who would supervise him A BIP that removed Student from general ed classroom

for certain behaviors and required him to “earn” his way back

A BIP that required Student to refrain from name-calling but did not provide counseling/training when he did so

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Revisions to BIPs

Cannot be done unilaterally Changes in targeted behaviors or

intervention strategies contained in the BIP must be made in accordance with IEP amendment process

Parents who disagree with BIP provisions (or revisions) may challenge through due process

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Revisions to BIPs (cont’d) Case example: Boulder Valley Sch. Dist. (SEA CO) ALJ rejected Parent’s claim that District did not do

enough to address 7-year-old’s behavior Student eloped from class and had frequent tantrums District revised BIP multiple times in response to

escalating behaviors Ultimately implemented successful interventions after

several attempts ALJ cited collaboration to find “new and better methods”

to control Student’s behavior

(Boulder Valley School Dist. RE-2 (SEA CO 2014) 114 LRP 11623)

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Practice Pointer

To ensure effective and compliant BIP implementation, meet with relevant staff to review plan details and answer questions

Remind administrators not to make unilateral removals when BIP contains specific intervention strategies

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Who Implements BIPs? California special education regulations

provide qualification requirements for individuals assigned to design and plan behavioral interventionsVarious licensing and credentialing requirements

BIPs can be implemented by individuals with qualifications to design and plan, or by other personnel under their direct supervision (Cal. Code Regs., tit. 5, §3051.23)

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Who Implements BIPs? Staff implementing a BIP must receive

information and training necessary to implement the BIPThis may mean scheduling a one-time staff

training when a BIP is first implemented and also scheduling periodic consultations during the year to consult/collaborate on BIP implementation issues as they arise

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BIPs for Section 504 Students Required when behavior significantly

interferes with student’s ability to benefit from his or her education

Plan should “ensure that [student] is able to maintain the placement that is determined to appropriately meet his or her educational needs”

(Elk Grove (CA) Unified School Dist. (OCR 1996) 25 IDELR 759)

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VI. Use of Aversive Interventions and Emergency

Interventions

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Federal Guidance IDEA emphasize positive behavioral interventions But “[it] does not flatly prohibit the use of

mechanical restraints or other aversive behavioral techniques”

Whether to allow IEP teams to consider use of aversive interventions is “a decision left to each state”

(Letter to Anonymous (OSEP 2008) 50 IDELR 228; Letter to Trader (OSEP 2006) 48 IDELR 47)

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Use of Aversive Interventions Case example: Temecula Valley USD (OAH 2014)

4-year-old Student’s behaviors included hitting, spitting, kicking, biting and throwing objects

Hit one teacher in stomach and threatened physical harm to another

District restrained Student and placed him in unlocked seclusion room when less drastic measures did not work

ALJ found aversive interventions were justified

(Student v. Temecula Valley Unified School Dist. (OAH 2014) Case Nos. 2013120202 and 2014010234, 114 LRP 29088)

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California law Districts serving students with exceptional needs

cannot “authorize, order, consent to, or pay for” the following interventions: Intervention designed to or likely to cause physical pain Intervention that involves release of noxious, toxic or

unpleasant substance near face Intervention that denies adequate sleep, food, water,

bedding, shelter, comfort, or access to bathroom facilities

Intervention designed to or likely to subject the individual to verbal abuse, ridicule, humiliation or cause excessive emotional trauma . . . (cont’d)

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California law (cont’d) Intervention employing device that immobilizes all four

extremities (except that prone containment may be used by trained personnel as limited emergency intervention)

Locked seclusion, unless it is in facility licensed or permitted by state law to use a locked room

Intervention that precludes adequate supervision Intervention that deprives individual of one or more of his

or her senses

(Ed. Code, §56521.2)

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Emergency Interventions Only in extremely limited circumstances May be used only to control unpredictable,

spontaneous behavior that poses: A clear and present danger of serious physical harm to

the individual with exceptional needs, or others, and Cannot be immediately prevented by a response less

restrictive May not be used as substitute for BIP

(Ed. Code, §56521.1)

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Emergency Interventions – Duration and Force Duration: Cannot employ the emergency

intervention for longer than is necessary to contain the behavior

Force: The amount of force used in an emergency intervention must be reasonable and necessary under the circumstances

(Ed. Code, §56521.1)

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Prohibited Emergency Interventions

Locked seclusion, unless it is in facility licensed or permitted to use a locked room

Intervention employing device that immobilizes all four extremities (except that prone containment may be used by trained personnel as limited emergency intervention)

An amount of force that exceeds that which is reasonable and necessary under the circumstances

(Ed. Code, §56521.1)

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Emergency Interventions – Notice and Reporting Requirements Districts must notify parents/guardians within one school

day if an emergency intervention is used or serious property damage occurs.

A behavioral emergency report (BER) should be completed immediately, reviewed by a designated administratorand maintained in the student’s file

If BER is written for student without a BIP, IEP team must convene within two days to determine need for FBA and interim BIP

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BER Documentation1. Name and age of the individual with exceptional

needs (student);

2. Setting and location of the incident;

3. Name of the staff or persons involved;

4. A description of the incident and the emergency intervention used and whether the student is currently engage in any systematic behavior intervention plan; and

5. Details of any injuries sustained by the student, or others, including staff, as a result of the incident

(Ed. Code §56521.1)

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Information in this presentat ion, including but not l imited to PowerPoint handouts and the presenters ' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your spec if ic fac ts and circumstances .

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Information in this presentat ion, including but not l imited to PowerPoint handouts and the presenters ' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your spec if ic fac ts and circumstances .