Q. My child has behavior problems which may put her at risk of suspension and/or expulsion. Are there any special services or protections that apply to her?
A. In 1990, the California Legislature enacted Assembly Bill 2586 (Hughes). This bill, and especially its accompanying regulations at Title 5, California Code of Regulations (5 Cal. Code Regs.) Sections 3001 and 3052, have substantially changed the way school districts must serve special education students with serious behavior problems. These regulations do not apply to students who are only identified as "disabled" under Section 504 or to any other students.
If your child is enrolled in special education and exhibits a serious behavior problem, the district must provide a functional analysis assessment by a behavior intervention case manager -- who must have training and experience in positive behavior intervention. The behavior intervention case manager must develop a positive behavior intervention plan which (1) identifies the function of the negative behavior for your child and (2) teaches her positive replacement behaviors which accomplish the same objectives for her but in a socially appropriate way.
A "serious behavior problem" is a behavior problem which (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).]
When agreed upon by the IEP team, the positive behavior intervention plan becomes part of your child's IEP. It must contain goals and objectives specific to the targeted behaviors, and it must describe the services to be provided in order to achieve the goals and objectives. [Id.] The behavior interventions selected by the case manager must be positive. That is, they must respect your child's dignity and privacy, assure her physical freedom, social interaction, and individual choice, help her learn to interact effectively socially, assure her access to education in the least restrictive environment, and result in lasting positive change. [5 Cal. Code Regs. Sec. 3001(d).]
Positive behavior interventions shall be used only to replace specified negative behaviors with acceptable behaviors and shall never be used solely to eliminate maladaptive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, districts should not use techniques that simply contain or suppress maladaptive behaviors -- they must simultaneously try to teach appropriate substitute behaviors.
Q. Do the new positive behavior intervention regulations specifically prohibit some behavior programming or techniques?
A. The behavior interventions used by the district cannot involve the infliction of pain or trauma. [5 Cal. Code Regs. Sec. 3001(d), 3052(a)(5).] In a behavioral emergency, that is, the demonstration of a behavior that has not been previously observed and addressed or for which no previous intervention has been effective, properly trained school personnel may use prone containment. The regulations contain very specific guidelines on the handling and documentation of emergencies. However, even in emergencies (and in all other behavior services) behavior interventions may not include:
(1) Release of toxic or unpleasant sprays near the student's face;
(2) Denying adequate sleep, food, water, shelter, bedding, comfort, or access to bathroom facilities;
(3) Subject the student to verbal abuse, ridicule or humiliation or cause emotional trauma;
(4) Use locked seclusion;
(5) Impede adequate supervision of the student;
(6) Deprive the student of one or more of his/her senses; or
(7) Employ any device, material, or object that simultaneously immobilizes all four extremities (except for prone containment in emergencies). [5 Cal. Code Regs. Sec. 3052(i), (l).]
Q. Do the new positive behavior intervention regulations have any impact on the discipline of special education students?
A. Yes. If a district wishes to expel a student for a behavior that has been targeted for change under a positive behavior intervention plan, the IEP team would almost certainly have to find that the behavior was related to the student's disability. Thus, expulsion would be prohibited. In California, a special education student cannot be expelled unless the IEP team determines that she was appropriately placed at the time of her misconduct. [Cal. Ed. Code Sec. 48915.5(a)(3).] Thus, if a student did not receive a positive behavior assessment and intervention for a behavior that fit the definition of serious behavior problem (see Question 21), the IEP team should find that she was not appropriately placed at the time of her misconduct. This situation would also preclude expulsion.
However, school districts may suspend special education students for misconduct even though the behavior involved is targeted for change in the student's positive behavior intervention plan -- subject to the limitations discussed above regarding consecutive and total number of days.
For further information on the positive behavior intervention regulations, see Chapter 5, Information on Related Services.
A. Yes. Although not specifically identified as related services under federal or state special education law, services to address serious behavior problems must exist in California. In 1990, the Legislature enacted Assembly Bill 2586 (Hughes). [Cal. Ed. Code Sec. 56520 to 56524.] This law prohibited the use of aversive behavior interventions and mandated the development and implementation of positive behavior intervention plans for special education students with serious behavior problems. In addition, the law required that CDE develop regulations to implement positive behavior intervention services for special education students in school. The regulations are at Title 5, California Code of Regulations, Sections 3001 and 3052. The "Positive Behavioral Intervention Procedural Flowchart" at the end of this chapter sets out procedures to (1) identify and assess behavior problems, and (2) develop intervention plans. The second page of the flow chart sets out "Emergency Intervention Procedures."
Q. What does "behavioral intervention" mean and what purpose does it serve?
A. "Behavioral intervention" means the systematic use of procedures that results in lasting positive changes in the student's behavior. The intent of using a behavioral intervention program is to provide the student with greater access to a variety of community settings, social contacts and public events, and ensure that her behavior does not hinder her placement in the least restrictive educational setting. Positive behavioral interventions respect the student's dignity and personal privacy and assure physical freedom, social interaction, and individual choice. Positive behavioral interventions do not include procedures which cause pain or trauma. [5 Cal. Code Regs. Sec. 3001(d).]
Q. What do the new positive behavior intervention regulations require of school districts?
A. The new regulations require that every special education student who demonstrates a serious behavior problem receive a functional analysis assessment. The assessment is then used in developing a positive behavior intervention plan for him. The plan becomes part of his IEP. [5 Cal. Code Regs. Sec. 3001(f).] The plan has its own set of goals and objectives related to reducing maladaptive behaviors and substituting appropriate behaviors.
Personnel with training in behavior analysis, with an emphasis on positive behavior intervention, must perform the functional analysis assessment, develop the positive behavior intervention plan, and supervise the implementation of the plan. This individual, called a behavior intervention case manager, becomes a member of the IEP team for every student with serious behavior problems. [5 Cal. Code Regs. Sec. 3052(a)(1).]
The regulations include many other procedures for evaluating the intervention plan, for modifying the plan, and for documenting emergency interventions. You can obtain a copy of the positive behavior intervention regulations by calling a Protection and Advocacy office -- 1-800-776-5746.
Q. What is a "serious behavior problem" for purposes of qualifying for positive behavior intervention services under the regulations?
A. A "serious behavior problem" is a behavior problem which: (1) is self-injurious or assaultive or (2) causes serious property damage or (3) is severe, pervasive, and maladaptive, and for which instructional/behavioral approaches specified in the student's IEP are found to be ineffective. [5 Cal. Code Regs. Sec. 3001(y).]
If the child's behaviors are not to the level of a serious behavior problem which would entitle her to a functional analysis assessment, parents should insist that any behavioral interventions used be specified in the IEP. If the milder behavioral problems develop into more severe, pervasive and maladaptive behaviors, but nothing has been specified in the IEP to address them, a child may not technically meet the definition of "serious behavior problem," and a school district may insist on one more opportunity to try to address the otherwise serious behaviors with "instructional/behavioral approaches" rather than a functional analysis.
Q. What is a "functional analysis assessment"?
A. A functional analysis assessment report must include the following:
(1) A description of the serious behavior problems targeted for change;
(2) The current frequency of the behaviors;
(3) A description of the circumstances that often lead to the behaviors (for example, the physical and social setting, the activities going on, and the student's degree of choice at the time);
(4) The consequences that maintain the behaviors (for example, does the behavior serve a communicative function for the student -- is it a request or a protest?);
(5) A description of the frequency of alternative behaviors, the circumstances under which they occur, and the consequences of those alternative behaviors. [5 Cal. Code Regs. Sec. 3052(b)(2).]
The functional analysis assessment involves a great deal of observation of the student and study of his environments and past history as part of the process of obtaining the information described above. [5 Cal. Code Regs. Sec. 3052(b)(1).]
Q. What is a "positive behavior intervention plan"?
A. A positive behavior intervention plan must include the following:
(1) A summary of information from the functional analysis assessment;
(2) An objective and measurable description of the targeted serious behaviors and positive replacement behaviors;
(3) Goals and objectives specific to the targeted behaviors;
(4) A detailed description of the behavioral interventions to be used and the circumstances for their use;
(5) Schedules for recording the frequency of use of the interventions and the demonstration of replacement behaviors;
(6) Criteria for determining when the interventions will be phased out or replaced with less intense or less frequent interventions;
(7) The extent to which interventions will be used in the student's home and in other settings.
(8) Specific dates for the IEP team to review the behavior intervention program's effectiveness. [5 Cal. Code Regs. Sec. 3001(f).]
Behavior intervention plans must contain sufficient detail to direct their implementation. [5 Cal. Code Regs. Sec. 3052(c).]
Q. What are "positive behavior interventions"?
A. Positive behavior interventions are procedures which, for example, a teacher could use each time a student displays, or is likely to display, a targeted serious behavior problem. Behavior interventions must not simply eliminate serious behavior problems, but must simultaneously teach alternative positive behaviors. [5 Cal. Code Regs. Sec. 3052(a)(2).] In other words, school districts should not use techniques that simply contain or suppress problem behaviors unless they also teach the student substitute appropriate behaviors.
The procedures include, but are not limited to:
(1) Altering events in anticipation of a serious behavior problem to try to prevent its occurrence;
(2) Teaching an alternative behavior that produces the same results for the student but is more socially acceptable;
(3) Teaching adaptive behaviors, that is, methods of coping with unanticipated events; and/or
(4) Manipulating the consequences for serious behavior problems and appropriate behavior so that appropriate behavior achieves the desired outcome and serious behavior problems are ignored.
[5 Cal. Code Regs. Sec. 3052(d)(2).]
Positive behavior interventions also include procedures for responding to and reinforcing appropriate behaviors. [5 Cal. Code Regs. Sec. 3052(e).]
A. If your child exhibits unpredictable spontaneous behavior which poses a clear and present danger to herself or others or serious property damage, the school personnel may use emergency interventions, including prone containment by trained staff, for the time necessary to address the emergency. [5 Cal. Code Regs. Sec. 3001(c), 3052(i).]
To prevent emergency interventions from being used in place of systematic behavioral interventions, the parent (and residential care provider, if appropriate) shall be notified of the emergency intervention, or if serious property damage occurs, within one school day and a Behavioral Emergency Report shall be filed. If the student does not have a behavioral intervention plan, then an IEP meeting shall be scheduled within two days to determine whether a functional analysis assessment is necessary and to determine the necessity for an interim behavioral intervention plan. If a functional analysis assessment is not initiated, the IEP team must document the reasons for that decision. [5 Cal. Code Regs. Sec. 3052(i)(7).] If the student has a behavioral intervention plan which was not effective for the emergency behavior, then an IEP review shall be conducted to see if the plan needs to be modified. [5 Cal. Code Regs. Sec. 3052(i)(8).]
For more information contact Protection & Advocacy, Inc., 1-800-776-5746
or legal@pai-ca.org.