nysed special education investigation

8/14/2019 NYSED Special Education Investigation

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indings omplaint InvestigationState Complaint gainstew York ity epartment of ducation NYC DOEComplainant Name: Advocates for Children of New YorkReceived: April 8, 2013

Allegation 1:The NYCDOE has failed to develop and implement polici esprocedures and practices to ensurea student with a disab ility receive appropriate evaluations including Functional BehaviorAssessments FBA5 upon which to base positive behavioral supports and services.Statements of Fact:

8 NYCRR 200.1r) Functional Behavior assessment means the process of determiningwhy a student engages behaviors that impede learning and how the students behaviorrelates to the environment. The functional behavioral assessment shall be developedconsistent with the requirements section 200.22a ) of th is Part and sha ll inclu de bu t isnot limited to, the identification of the problem behavior, the defini tion of the behavior concrete terms, the identification of the contextual factors that contribute to the behaviorinclud ing cogni tive and affective factors) and the formulation of a hypothesis regarding thegeneral conditions under which a behavior usually occurs and probable consequences thatserve to maintain it8 NYCRR 200.22a )2 ) The FBA shall, as appropriate, be based on multiple sources ofdata including, but not limited tot information obtained from direct observation of thestudent, information from the student, the students teacher s) and/or related serviceproviders ), a review of available data and information from the students record and othersources inc luding any relevant information provided by the students parent. The FBA shallnot be based solely on the students history of presenting problem behaviors.8 NYCRR 200.22a) 3) The FRA shall provide a baseline of the students problembehaviors with regard to frequency, duration, intensity and/or latency across activi tie s,settings, people and times of the day and include the information required in section200.1 r of this Part sufficient detai l to form the basis for a behavioral intervention plan forthe student that addresses antecedent behaviors, reinforcing consequences of thebehavior, recommendations for teaching alternative skills or behaviors and an assessmentof student preferences for reinforcement,NYC DOE Standards fo r Behavioral Intervention for Students with isab ilitie s outlines, anddefines the fo llowing requirements for Functional Behavioral Assessments:

o functional behavioral assessment FBA means the process of determining whya student engages behaviors that impede learning and how the students behaviorrelates to the environment.


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An FBA for a student with a disability is an evaluation requiring parent consentpursuant to the requirements n section 2005 b of the regulations of theCommissioner of EducationThe FBA must be based on mul tiple sources of data inc luding, but no t lim ited to,information obtained from direct observation of the student; informa tion from thestudent, the students teacher s, related service provider s and others with whomthe student interacts; and a review of available data and information from thestudents record and other sources including any relevant information provided bythe students parent. An FBA must be conducted by a team, the princ ipal w lldesignate the team and its facilita tor.

Af ter a FBA has been conducted, the CSE must be convened to review the results ofthe FBA, develop a corresponding BIP, and update the students individualizededucation program IEP to indicate a particular device or service, including anintervention, accommodation or other program mod ification is needed to address thestudents behavior. An FBA s required and a SIP mu5t be considered whenever:

a student with a disability is exhibi ting persistent behaviors that impede his orher learning or that of others, despite consistently implemented generalschool-wide or classroom-wide interventions: the behavior of a student with a disability places the student or others at riskof harm or injury, and/or the school-based or central CSE s considering more restrictive programs orplacements for a student with a disab ility as a result of the studentsbehavior.

o An EBA and a SIP are required whenever: A student is subject to disciplinary action and a determination has been madethat the behavior s a manifestation of the students disability. For moreinformation on MAN IFE STATION DETERM INATION REV IEW S MDR s, seeNew York States Procedural Safeguards fo r Students with isabilities

subject to discipline.o When a student for whom a BIP has already been developed is subject todisciplinary action and a determination has been made that the behavior s amanifestation of the students disability, the BIP must be reviewed and modifiedas necessary to address the behavior that resulted in the disciplinary act ion.o An FBA is required and a BIP must be considered whenever:

student who has been referred for an initial evaluation fo r special educationis exhibiting persistent behaviors that impede his or her learning or that of


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conditions under wh ich a behavior usually occurs and probable consequences that serve tomaintain t FBAs did not always addresses antecedent behaviors, reinforcingconsequences of the behavior, recommendations for teaching alternative skills or behaviorsand an assessment of student preferences for reinforcement.n addition, the template n the New York City Department of Education Special EducationInformation System SESIS used to guide the written report of the FBA does no t meetState requirements. Whil e t asks What s the targeted inappropriate behavior? t does notlead the writer to define those behaviors n concrete terms. The template seeks informationon the frequency, duration and intensity however, t does not seek informti on on latency,nor does t guide the writer to specify this baseline data across activities, settings peopleand times of the day. The template seeks answers to questions regarding the triggers oractions which occur immediately before the targeted behavior, however, t does notprovide assessment information on the cognitive and affective contextual factors that maybe contributing to the behavior. There is no place on the FBA form to record the sources ofdata and the questions on the FBA template only reference observational data.The regulations require the FBA to include a hypothesis regarding the general conditionsunder whi h a behavior usually occurs and probable consequences that serve to maintaint The NYC DOE form rather, asks for a presumed purpose and what the student gainsor loses as a result of the targeted behavior.Overall the form does not provide suffiie nt guidance to document the results of the FBAthat wll provide sufficient det il to form the basis of a behavioral intervention plan.

Finding for Allegation 1 SustainedCitation Language200.22 a 2 The FBA shall, as appropriate, be based on mu ltiple sources of data includingbut not limi ted to inf ormation obtained from direct observation of the student,information from the student, the students teachers andlor related serviceproviders, a review of available data and informti on from the students recordand other sources includ ing ny relevant informti on provided by the students

parent. The FBA shall not be based solely on the students history of presentingproblem behaviors.200.22a 3 The FBA shall provide a baseline of the students problem behaviors with regardto frequency, duration, intensity and/or latency across activities, settings, peopleand times of the day and include the information required n section 200.1r ofthi s Part n sufficient detail to form the basis for a behavioral intervention plan forthe student that addresses antecedent behaviors, reinforcing consequences ofthe behavior, recommendations for teaching alternative skills or behaviors and anassessment of student preferences fo r reinforcement.


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Compliance Assurance PlanAllegation it I Citations 200.22 a 2 , 200.22 a 3Required Corrective ActionBy January 15, 2014, the NYCDOE will issue a directive to all Committees on Preschool SpecialEducation CPSEs and Committees on Special Education CSEs requiring the mandated useof NYSED approved forms and templates for conducting Functional Behavioral AssessmentsFBAs upon which to base positive behavioral supports and interventions fo r any student with adisability requiring a FBA. A copy of the directive must be submitted to NYSED no later thanJanuary 15, 2014.By May 30, 2014, the NYCDOE will provide targeted professional development on conductingFunctional Behavioral Assessments FBA at the 10 schools identified in the complaint with anadditional schools selected by NYSED. Evidence of targeted professional developmentincluding details of presenter s , participants and topics must be submitted no later than May 30,2014. Include also a detail plan with benchmarks, time lines and outcomes with regard to going professional development and support from the Cluster and NetworkBy May 30 , 2014, the NYCDOE will submit to the NYSED a representative sample of FunctionalBehavioral Assessments FBAs fo r any student with a disability requiring FBAs at the 10schools identified in the complaint with an additional schools selected by NYSED.

Evidence to Verify ComplianceBy June 30, 2014 The NYSED will verify compliance by review of documentation submitted byJune 30 , 2014 to include review of the representative sample of IEPs, FBAs and BIPs to ensurecompliance with regulatory requirements.


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indings of omplaint Invest igationState Complaint gainst

ew York ity Department of Education NYC DOEComplainant Name; Advocates for Children of New YorkReceived: April 8, 2013

Allegation 2 :The NYC DOE has failed to develop and implement policies procedures, and practices toensure a student with a disability whose behavior impedes his or her learning or that of others,receives consideration of strategies, includin g positive behavior interventions and supports andother strategies to address that behavior.

Statements of Fact: 8 NYCRR 200.4 d 3) requires that in the case of a student whose behavior impedes hisor her learning or that of others, the CSE shall consider strategies, includ ing positivebehavior interventions, and supports and other strategies to address that behavior that areconsistent with the requirements in section 200.22 of th is Part. 8 NYC RR 200.22b 1 requires that the CSE or CPSE shall consider the development ofa behavior intervention plan, as such term is defined in 200.1 mmm of this art for astudent with a disability when:

i The student exhibits persistent behaviors that impede his or her learning or that ofothers, despite consistently implemented general school-wide or classroom-wideinterventions.ii The students behavior places the student or others at risk of harm or injury;iH The CSE or CPSE is considering more restrictive programs or placements as aresult of the students behavior, and/oriv As required pursuant to section 201.3 of this Title.

8 NYC RR 200.22 b 2 requires that in accordance with the requirements of section 200.4of this ar t in the case of a student whose behavior impedes his or her learning or that ofothers, the CSE shall consider strategies, inc ludin g positive behavior interventions, andsupports and other strategies to address that behavior, If a particular device or service.including an intervention, accommodation or other program mod ification is needed toaddress the students behavior that impedes his or her learning or that of others, the IEPshall so indicate. A students need for a behavior intervention plan shall be documented onthe IEP and such plan shall be reviewed at least annually by the CSE or CPSE.

The New York City Department of Education provided as evidence many examples ofprofessional development materials, some lis ts of attendees, and one clear city-wid e policyThe Citywide Standards Of Intervention and Discipline Measures .


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intensity of the behavioral interventions at scheduled intervals, as specified in the behavioralintervention plan and on the students IER Lastly, the results of the progress monitoringwere not documented and reported to the students parents and to the CSE or CPSE.

onclusions and easonst is the determination of this Office that the New York City Department of Education has, in part,developed policies to ensure a student with a disability subject to disciplinary action receivesconsideration of a Functional Behavioral Assessment FBA and i appropriate, a BehavioralIntervention Plan BIP . However, the Discipline Code does not sufficiently address theconsideration of positive behavioral supports and interventions and strategies, thecircumstances to conduct a FBA and i warranted, the development of BlPs for all students withdisabilities who experience behaviors that impede learning as required by State standards.We also find that the NYCDOE implementation practices are deficient in that SIPs do notcontain all elements required to develop BlPs that meet the States standards. Upon review ofstudent specific examples, BIPs developed for individual students did not include the baselinemeasure of the problem behavior, including the frequency, duration intensity and/or latency ofthe targeted behavior; intervention strategies to be used to alter antecedent events to preventthe occurrence of the behavior, teach individual alternative and adaptive behaviors to thestudent, and to provide consequences for the targeted inappropriate behavior s) and alternativeacceptable behaviors. BIP5 also lacked a schedule to measure the effectiveness of theinterventions including the frequency, duration and intensity of the targeted behaviors atscheduled intervals. SIPs lacked progress monitoring of the frequency, duration and intensity ofthe behavioral interventions at scheduled intervals, as specified in the behavioral interventionplan and on the students IEP. Lastly, the results of the progress monitoring were notdocumented and reported to the students parents and to the CSE or CPSE.In addition, there lacks evidence that the CSEs are given consistent guidance in theconsideration of positive behavioral supports and interventions when developing IEPs forstudents whose behaviors impede his or her learning and or that of others.Finding for Allegation 2: Sustained

Citation Language200.4 d) 3) i) Consideration of special factors. The CSE shall: in the case of a student whose

behavior impedes his or her learning or that of others, consider strategies,including positive behavioral interventions, and support and other strategies toaddress that behavior that are consistent with the requirements in section of thisPart

Citation Language200.22 b) 2) n accordance with the requirements in section 200.4 of this Part, in the case of


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a student whose behavior impedes his or her learning or that of others, the CSEor CPSE shall consider strategies, inclu ding positive behavioral interventionsand supports and other strategies to address that behavior. II a particular deviceor service, includ ing an intervention, accommodation or other programmod ification is needed to address the students behavior that impedes his or herlearning or that of others, the IEP shall so indicate A students need for abehavioral intervention plan shall be documented on the EP and such planshall be reviewed at least annually by the CSE or CPSE.

Citation nguge200.22 b 1 The CSE or CPSE shall consider the development of a behavior interventionplan, as such term is defined in 200.1 mmm of thi s art for a student with adisability when:

v The student exhibits persistent behaviors that impede his or her learning or thatof others, despite consistently implemented general school-wide or classroom-wide interventions.vi The students behavior places the student or others at risk of harm or injury;vu The CSE or CPSE is considering more restrictive programs or placements as aresult of the students behavior, and/orvU i As required pursuant to section 201.3 of this Title.


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ompliance ssurance l nAllegation Citations 200.4d 3 , 200.22 b i, 200.22b 2By January 15 2014, the NYCDOE wll issue a directive to all Committees on Preschool SpecialEducation CPSE5 and Committees on Special Education CSEs requiring the mandated useof NYSED approved forms and templates for the consideration of strategies inc ludin g positivebehavioral intervention and supports and other strategies addressing behaviors for any studentwith a disability whose behavior impedes his or her learning or that of others. copy of thedirective must be submitted to NYSED no later than January 15 2014.By April 30 2014, the NYCDOE wll provide targeted professional development on theconsideration of strategies including positive behavioral intervention and supports and otherstrategies addressing behaviors for any student with a dis ability whose behavior impedes his orher learning or that of others at the 10 schools iden tified n the complaint with an additional 2schools selected by NYSED Evidence of targeted professional development includ ing detailsof presenter s, participants and topics must be submitted no later than June 30 2 14 Includealso a de tail plan with benchmarks, time lines and outcomes with regard to on-goingprofessional development and support from the Cluster and Network By May 30 2014 the NYCDOE w ll submit to the NYSED a representative sample ofIndividualized Education Programs lEPs with completed forms and templates of any studentwith dis ability considered for strategies inc luding behavioral interventions supports andstrategies identified to address behaviors that impede the learning of the student or that ofothers at the 10 schools ide ntified n the complaint with an additional 2 schools selected byNYSEDEvidence to Ve rify Compliance:By June 30 2014, The NYSED will verify compliance by review of documentation submitted byJune 30 2014 to include review of the representative sample of IEPs, FBA s and BIPs to ensurecompliance with regulatory requirements.


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indings of omplaint InvestigationState Complaint Against:

New York City Department of Education NYC DOE)Complainant Name: Advocates for Children of New YorkReceived: April 8, 2 3

Allegation 3:The DO E has failed to develop and implement policies, procedures and practices to ensurestudents with disabilities receive appropriate behavioral supports and services, includingBehavioral Intervention Plan SIPs , which are based on the results of a Functional BehavioralAssessment.Statements of Fact:

8 NYCRR 200.1 mmm defines a Behavioral Intervention Plan as a plan based on theresults of a functional behavioral assessment and, at a minimum, includes a description ofthe problem behavior, global and specific hypotheses as to wh y the problem behavioroccurs and intervention strategies that include positive behavioral supports and services toaddress the behavior.

8 NYCRR 200.4 3 i holds that the CSE shall, in the case of a student wh o behaviorimpeded his learning or that of others, consider strategies, including positive behavioralinterventions, and supports and other strategies to address that behavior

8 NYCRR 200.22 b 1 The CSE shall consider the development of a behavioralintervention plan, as such term is defined in section 200.1 mmm of this Part, for a studentwith a disability when:

i the student exhibits persistent behaviors that impede his or her learning or that ofothers, despite consistently implemented general school-wide or classroom-wideinterventions;

ii the students behavior places the student or others at r isk o f harm or injury;Hi the CSE or CPSE is considering more restrictive programs or placements as a

result of the students behavior; and/oriv) as required pursuant to section 201.3 of this Title.

8 NYCRR 200.22 b 2 In accordance with the requirements in section 200.4 of this Part, inthe case of a student whose behavior impedes his or her learning or that of others, the CSEor CPSE shall consider strategies, including positive behavioral interventions and supportsand other strategies to address that behavior. If a particular device or service, including anintervention, accommodation or other program modification is needed to address thestudents behavior that impedes his or her learning or that of others, the IEP shall so


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NYC DOE Standards for Behavioral Intervention for Students with is bilities outlines anddefines the follow ing requirements for Behavioral Intervention Plans:

behavioral intervention plan SIP is a plan that is based on the results of anFBA and at a minimum, includes a description of the problem behavior glob land specific hypotheses as to why the problem behavior occurs interventionstrategies that include behavioral supports and services to address the behavior.

Af ter a FBA has been conducted the CSE must be convened to review theresults of the FBA, develop a corresponding SIP, and update the studentsindividualized education program IEP to indicate a particular device orservice includ ing an intervention accommodation or other program modi ficat ion ,is needed to address the students behavior.

An FBA is required and a BIP must be considered whenever: a student with a disability s exh ibiting persistent behaviors that impedehis or her learning or that of others despite consistently implemented

general school wide or classroomwide interventions: the behavior of a student with a dis ab ili ty places the student or others at

risk of harm or injury, and/or the school based or central CSE s considering more restrictive programs

or placements for a student with a disab ility as a results of the studentsbehavior.

An FBA and a BIP are required whenever: student is subject to disciplinary action and a determination has been

made that the behavior s a manifestation of the students disability. Fo rmore information on MAN IFESTATION DETERMINATION REVIEWSMDR s, see New York States Procedural Safeguards for Students with isb ilities subject to discip line.

When a student for whom a SIP has already been developed is subject todisciplinary action and a determination has been made that the behavior s amanifestation of the students disability, the SIP must be reviewed and modifiedas necessary to address the behavior that resulted n the disciplinary action.

o An FBA s required and a BIP must be considered whenever: A student who has been referred for an initial evaluation for special

education is exhibit ing persistent behaviors that impede his or herlearning or that of others despite consistently implemented generalschoolwide or classroomwide interventions; and/or

The behavior of a student has been referred for an initial evaluation forspecial education places the student or others at risk of harm or injury.


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provide consequences for the targeted inappropriate behavior(s) and alternative acceptablebehaviors. BIPs also lacked a schedule to measure the effectiveness of the interventions,includ ing the frequency duration and in tens ity of the targeted behaviors at scheduled intervals.BIPs lacked progress monitoring of the frequency duration and intensity of the behavioralinterventions at scheduled intervals, as specified in the behavioral intervention plan and on thestudents (ER Lastly the results of the progress monito ring were no t documented and reportedto the students parents and to the CSE or CPSE. addit ion the template in the New York City Department of Education Special Education nformation System (SESIS) used to guide the written report of the BIP does no t meet Staterequirements. The column with the heading Target Behav ior does not assist the writer ndefin ing the behavior n concrete terms. The template does not seek the baseline measure ofthe problem behavior, including the frequency, duration, intensity and/or latency of the targetedbehavior, This is no area to include data taken across acti vities settings. people and times ofdaysecond heading Expected Behavior Changes does not assist the writer n the identificatio nof intervention strategies to be used to alter antecedent events to prevent the occurrence of the

behavior, teach individual alternative and adaptive behaviors to the student, and to provideconsequences for the targeted inappropriate behavior(s) and alternative acceptable behaviors.The third and final heading Methods/Criteria for Outcome Measurement does no t assist thewriter n developing a schedule to measure the effectiveness of the interventions, inc lud ing thefrequency, duration and intensity of the targeted behaviors at scheduled intervals. With regardto monito ring the progress of the implementation of a students behavioral intervention plan apredetermined 10 week cycle is imposed rather than a schedule as specified n the behavioralintervention plan and on the students ISP

Finding for Allegation 3: Sustained


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Compliance Assurance PlanAllegation 3 Citations 200.22(b)(4) 200.22(b)(5)By January 15, 2014, the NYCDOE will issue a direction to all Committees on Preschool SpecialEducation (CPSEs) and Committees on Special Education (CSEs) requiring the mandated useof NYSED approved forms and templates in the development of Behavioral Intervention PlansBIPs which are based on the results of a Functional Behavioral Assessment for any studentwith a disability requiring a BIP. A copy of the directive must be submitted to NYSED no laterthan January 15, 2014.By May 30 , 2014, the NYCDOE will provide targeted professional development on developingBehavioral Intervention Plans BIPs at the 10 schools identified in the complaint with anadditional 2 schools selected by NYSED. Evidence of targeted professional developmentincluding details of presenter(s), participants and topics must be submitted no later than May 30,2014. Include also a detail plan with benchmarks time lines and outcomes with regard to ongoing professional development and support from the Cluster and Network.By May 30 , 2014, the NYCDOE will submit to the NYSED a representative sample of BehavioralInterventions Plans BIPs fo r any student with a disability requiring a BIP at the 10 schoolsidentified in the complaint with an additional 2 schools selected by NYSED.

Evidence to Verify ComplianceBy June 30 , 2014, The NYSED will verify compliance by review of documentation submitted byJune 30, 2014 to include review of the representative sample of IEPs, FBAs and BIPs to ensurecompliance with regulatory requirements.

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