behavior interventions and discipline for special education students

Jeff GansonBremerton School District

August 20, 2013

Behavior Interventions and Discipline

for Special Education Students

Overview• Discipline: Limits and requirements under

IDEA When & how to conduct manifestation

determinations Development of FBAs & BIPs

• Washington’s new discipline law• Aversive interventions including seclusion

under ESHB 1688 (and proposed regulations)

Exclusions under IDEAThe 5 columns

Stay put is likely to result in injury to self or others

Weapons, drugs and serious bodily injury

More than 10 cumulative days, and is change of placement

More than 10 cumulative days, but not change of placement

Less than 10 cumulative days in same school yearA

B

C

D

E

Change of placementA removal of:

More than 10 consecutive school days Less than 10 consecutive days, if part of a series of

removals that constitute a pattern because:• More than 10 cumulative school days• For substantially similar behavior• Factors: Length of removals, total time, proximity in

time

Exclusions under IDEA

Column A

Removal for < 10 cumulative school days in same school

year

Done.(no educational services)


Column B

Removal for > 10 cum. school days but not change of

placement

Removal may proceed, but child entitled to services determined by school in consultation with teacher


Column C

If not manifestation, child may be removed, but entitled to services determined by IEP team

Removal which constitutes a change of placement

Provide notice to parents on same day as decision

Within 10 school days, relevant IEP team members conduct manifestation determination

If manifestation, must conduct FBA/BIP process and return child to previous placement


Column D

Removal for weapons, drugs or serious bodily injury

Provide notice to parents on same day as decision

Within 10 school days, relevant IEP team members conduct manifestation determination

If not manifestation, child removed, but entitled to services determined by IEP team

If manifestation, must conduct FBA/BIP and return child to existing placement (after 45 day IAES)

Child may be placed up to 45 school days in IAES determined by IEP team


Column E

Removal if stay put is substantially likely to result in injury to self or others

District requests expedited due process hearing

If hearing officer agrees, child placed in appropriate IAES for up to 45 school days

Procedure may be repeated if district believes child would be dangerous if returned to previous

placement

If hearing officer disagrees, child remains in current placement

Hearing held w/in 20 school days and decision issued w/in 10 school days

“Off the chart” options• Agreement on change in placement• Honig injunction

Manifestation determinations

• When? Within 10 days of the removal

• Who? The parent and relevant members of the IEP team

• Based on what? All relevant information in file, including the IEP,

teacher observations, and parent information

Manifestation determinations

• Two questions: Was the behavior caused by or directly and

substantially related to the student’s disability? Was the behavior the direct result of the school

district’s failure to implement the IEP?• If yes to either question, the behavior is a

manifestation.

If conduct is a manifestation…

• Conduct FBA, implement or review BIP• Student’s placement cannot be changed (no

removal), except by agreement• Except: Interim alternative educational setting

allowed for certain weapon and drug violations, or infliction of serious bodily injury – but FAPE still required

If conduct is not a manifestation…

• May apply regular discipline applicable to non-disabled students

• BUT: Still must continue to provide FAPE: Enable participation in general curriculum Enable progress toward IEP goals

If conduct is not a manifestation…

• And, “as appropriate,” FBA and behavior intervention services designed to address the behavior violation so that it doesn’t recur

• FAPE and behavior intervention services can be provided in an interim alternative setting

• Services decided by IEP team

So what difference does it make?!

• You can change the location of the program, temporarily

• Ostensibly, you can’t change the program FAPE is FAPE? More direct/1:1 services = less time needed? IEP team decision

What’s the theory behind this?• A very telling error - WAC 392-172A-05145(5)(c):

“If the school district, the parent, and relevant members of the student’s IEP team determine the conduct was manifestation of the student’s disability, the school district must take immediate steps to remedy those deficiencies.”

Which deficiencies??• Implication: Behavioral manifestations mean

there are deficiencies in the program.

What’s the theory behind this?

• The MD is a focusing tool • Theory: With special ed, FBA, behavior

intervention, you can “remedy” disability-related behavioral issues

• Alter the program, or implement the program, but don’t punish the student

• Behavior is a sign program is not working?

IDEA’s Consequences• Hearing process – time-consuming, expensive

and stressful• Losing:

Compensatory education Parent’s attorney fees Lost “face”: Being right doesn’t necessarily get you

anywhere, but being wrong robs you of credibility with parents

So back to manifestations…• Two questions:

Was the behavior caused by or directly and substantially related to the student’s disability?

Was the behavior the direct result of the school district’s failure to implement the IEP?

• If yes to either question, the behavior is a manifestation.

Caused by the disability• “Caused by”

Cause: “to make something happen”• Possible formulations:

The disability made the student engage in the conduct.

The student could not help it.

Or, “directly and substantially related”

• Direct: “without intervening factors or intermediaries”

• ED comment: “not an attenuated association, such as low self-esteem”

• Substantial: “of considerable importance”; it makes a difference

“Direct and substantial”• Possible formulations:• We can see how the disability resulted in the conduct. • We could have predicted the conduct based on what we

know about the disability.• The student was prevented by the disability from

controlling the conduct, or from knowing it was inappropriate.

What about EBD?• Is conduct pretty much always a manifestation

of behavioral disability? • No. Often, but not always:

EBD category is broad – not all behavioral ODD: Reaction to being confronted by a staff

member in an aggressive way? No “rule” – look at direct and substantial every

time

What about EBD?• But query: Should you be doing a lot of

manifestation reviews on a student who has a behavior-related disability?

• What kind of change of placement is proposed, and why?

• What’s the theory again? Does “regular discipline” help?

Or, failure to implement IEP• The conduct was the direct result of the district’s

failure to implement the IEP• Direct: “without intervening factors or intermediaries”• Result: “consequence, effect or outcome”

• So the failure to implement must have led to the conduct. This conduct probably would not have occurred if

the IEP had been fully implemented.

Mistakes/Pitfalls• Viewing the MD as your key to being able to

discipline the student A result-driven approach – We’ve got to get this

kid out of here With special education students, that ship has

sailed – you may be able to move them (temporarily), but you will continue to serve them

Mistakes/Pitfalls• Thinking “not a manifestation” means more

than it really does: Again, you must continue to serve You may have to consider FBA/BIP (and probably

should) Can you identify the educational reason for a

disciplinary removal?

Mistakes/Pitfalls• Ignoring the purpose of the MD, which is to

use a conduct event to learn something about the student’s needs, and then adjust accordingly

• IEP Team: Not reviewing programming, implementation, interventions, supports, etc. based on the MD findings (regardless of “yes” or “no”)

Mistakes/Pitfalls• Consequences of failure to act on conduct

Short-term: Parents can appeal your decision – expedited hearing, onerous process, potential attorney’s fees

Long-term: If you don’t address disability-related behavior now, you will have a larger FAPE problem down the road

Functional Behavioral Analysis

• An FBA uses data to answer the question “Why?”

• Conducted by IEP team• Different sources of data:

Direct observation Indirect/informant Functional analysis – experimental manipulation

Components of an FBA• Precise description of the problem behavior• Potential ecological/setting events• Immediate antecedent events• Consequences/outcomes• Other related factors

The FBA/BIP process• Thoughtful analysis/synthesis of the data,

towards development of summary statements, then behavior support/intervention plans

• Avoid quick conclusions – challenge assumptions, and test theories

• Analyze results and modify the analysis as necessary

Example FBA Summary Statement

• When Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.

Example FBA Summary StatementWhen Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.

Antecedent (Situation)


When Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.

Antecedent (Situation)Behavior (Problem Behavior)


When Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.


Consequence (Function)

Example FBA Summary StatementWhen Adrian begins to have difficulty with a math assignment, she will yell obscenities in order to escape from the task. This pattern is more likely to occur if Adrian has received reprimands earlier in the day.


Consequence (Function)Setting Event (Situation)

Behavior intervention plans• Goal – Make the problem behavior irrelevant,

ineffective, inefficient• Positive supports, interventions, and strategies to

address behavior when a student’s behavior interferes with his/her own learning or that of others

• No requirements except that IEP team develop it• What a BIP is not:

A behavior contract An aversive intervention plan

From FBA to BIPReprimands Difficult math

assignment Yell obscenities Escape assignment

Setting event Antecedent

Desired behavior

Problem behavior

Replacement behavior

Desired consequence

Consequence

Setting event strategies

Predictor strategies Teaching strategies Consequence

strategies

From FBA to BIP• Setting event strategies• Antecedent/predictor strategies• Targeted problem behaviors

Response strategies Teaching replacement behaviors

• Consequence strategies Reinforcers for appropriate behavior Undesirable consequences for problem behavior

• Monitor results; adjust as needed

Students who are not yet eligible

• Non-special ed students are entitled to IDEA’s discipline protections if district had knowledge they were “eligible” – meaning, the district has not evaluated, despite: Parent expressed written concerns to teacher or

supervisory personnel Parent requested evaluation Staff expressed concerns about behavior to supervisor

• Expedited evaluation requirement

New discipline law – all students

• ESSB 5946 – effective Sept. 28, 2013: No more indefinite expulsions One-year limit for most suspensions/expulsions Reentry conferences Reengagement plans

New discipline law – all students

• All suspensions/expulsions must be for a definite period. Existing definition of expulsion: “Indefinite” There may be no difference between suspension and

expulsion now• Limited to one year.

Exception: Building administrators may petition superintendent to exceed one year when warranted based on public health or safety under rules to be adopted by OSPI (currently nonexistent)

Long-term suspensions & expulsions• District has a duty to make reasonable efforts to assist

student in returning to “an educational setting as soon as possible”

• Must convene reentry conference with student & parent: Within 20 school days of removal (& no later than 5 days

before reenrollment) Discuss a plan to reengage the student in a school program Regardless of whether student has appealed or applied for

readmission

Long-term suspensions & expulsions• In developing reengagement plan,

administrators must consider: Shortening the suspension/expulsion Imposing other forms of corrective action Supportive interventions that aid in the student’s

academic success and keep the student engaged and on track to graduate

Long-term suspensions & expulsions• Reengagement plan must:

Be tailored to the student’s individual circumstances, including consideration of the incident that led to removal

Aid the student in taking the necessary steps to remedy the situation that led to removal

• What does this look like? Behavior contract? IEP/FBA/BIP??

Emergency expulsions• Must end or be converted to other form of

discipline within 10 school days• Must provide notice of conversion and hearing

rights; emergency expulsion also subject to hearing right

• To avoid “gap,” provide early (immediate?) notice of conversion to suspension/expulsion

Seclusion & restraint: ESHB 1688

• Effective July 28, 2013:• “Isolation”: excluding a student from his/her

regular instructional area and restricting the student alone within a room or enclosure, from which student may not leave.

• “Restraint”: physical intervention or force used to control a student, including use of restraint devices.


• Applies to every instance of isolation or restraint on a student on an IEP or 504 plan: Following release, implement follow-up

procedures:• Review incident with student and parent to address the

behavior that precipitated• Review incident with the staff member who

administered to discuss whether proper procedures were followed


• Any employee who uses chemical spray, mechanical restraint or physical force on a student must: Inform building administrator as soon as possible,

and Submit written report of incident to district office

within two business days


• Written report must include: Date & time of incident Name and title of person administering Description of activity that led to use Type of restraint or isolation used, and duration Whether student or staff were injured, and any

medical care provided


• Principal or designee must make reasonable effort to verbally inform parent within 24 hours, and send written notice as soon as practical but postmarked no later than 5 business days after incident (translated if necessary).


• IEPs must include procedures for notification of a parent regarding the use of restraint or isolation.

• Parents of special ed and 504 students must be provided a copy of the district’s policy on isolation and restraint at the time the IEP or 504 plan is adopted.

OSPI’s proposed regulations• Amends definition of “aversive intervention”:

Current: the systematic use of stimuli or other treatment which a student is known to find unpleasant for the purpose of discouraging undesirable behavior

Proposed: use of isolation or restraint practices for the purpose of discouraging undesirable behavior – any other forms of aversive intervention are apparently prohibited

OSPI’s proposed regulations• Aversive intervention plans:

Purpose: to ensure that aversives are used with a goal of teaching appropriate behaviors

Positive behavioral supports/interventions must be used, and their use must be described in AIP (not just IEP and/or BIP) when the determination is made that aversives are necessary – aversive plan must justify its existence

Aversive interventions• Existing prohibitions:

Electric current Denial or unreasonable delay of food Denial of medication Painful noise or noxious sprays Taste or water treatment Unreasonable force: Throwing, kicking, burning, cutting,

striking with closed fist, shaking (under 3), interference with breathing, threatening with deadly weapon, or other bodily harm that is more than transient pain or minor temporary marks

Aversive interventions• Aversive intervention plan must:

Be consistent with recommendations of IEP team, which must include:• A school psych or other certificated employee who

understands appropriate use of aversives, and who concurs in the decision

• A person who works directly with the student Specify aversives that may be used Explain why the aversives are judged to be appropriate,

and the behavioral objective to be achieved


Describe positive interventions attempted and why they failed, if known

Describe circumstances under which aversives may be used

Specify the maximum duration of each isolation or restraint

Specify any special precautions that must be taken


Specify the person(s) permitted to use aversives, current qualifications and required training

Establish means of evaluating the effects of the use of aversives and a schedule for periodically conducting such evaluation at least every 3 months while school is in session

New: Procedures for notifying parent each time aversives are used

Requirements for isolation• Enclosure requirements:

Ventilated, lighted, temperature controlled for human occupancy

Permit continuous visual monitoring of student from outside enclosure

• Adult responsible for supervising must remain in visual or auditory range of student

• If student cannot release self, responsible adult must maintain continuous visual monitoring

Requirements for physical restraint

• Used only when and to extent it is reasonably necessary to protect student, others or property from serious harm

• Shall not interfere with breathing• Adult responsible for supervising must remain

in visual or auditory range of student• If student cannot release self, responsible adult

must maintain continuous visual monitoring

Jeff GansonBremerton School District

August 20, 2013

Behavior Interventions and Discipline

for Special Education Students

behavior interventions and discipline for special education students

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