Dear Special Education Local Plan Area Directors, Special Education Administrators of County Offices of Education, Nonpublic School and Agency Administrators, and Other Entities Providing Related Services to Special Education Students:
Assembly Bill 86 (AB 86), the Education Omnibus Trailer Bill, Chapter 48, Statutes of 2013, repealed regulations and added state statute that addressed requirements and restrictions concerning student behavioral intervention. The result of these changes was to modify the Behavioral Intervention Plan mandate to align it more closely with federal law and reduce unnecessary costs, while maintaining key protections for students with disabilities related to behavioral intervention.
In accordance with Assembly Bill 110, California’s 2013–2014 budget bill, the California Department of Education (CDE) is required to provide oversight of, and technical assistance and monitoring to, local educational agencies regarding changes to the requirements related to the identification and provision of behavioral intervention services.
This correspondence provides clarification regarding requirements for completing Behavioral Emergency Reports (BERs), and changes in law concerning reporting requirements related to those reports, including:
California law continues to require that educational agencies complete a BER when emergency interventions are used for a student with a disability, or if serious property damage occurs. Pursuant to AB 86, this requirement, previously established in California Code of Regulations, Title 5, Section 3052(i)(5) through (i)(8), is now located in EC Section 56521.1, subsections (e) through (h). Otherwise, this requirement is essentially unchanged:
EC § 56521.1
(e) To prevent emergency interventions from being used in lieu of planned, systematic behavioral interventions, the parent, guardian, and residential care provider, if appropriate, shall be notified within one schoolday if an emergency intervention is used or serious property damage occurs. A behavioral emergency report shall immediately be completed and maintained in the file of the individual with exceptional needs. The behavioral emergency report shall include all of the following:
(f) All behavioral emergency reports shall immediately be forwarded to, and reviewed by, a designated responsible administrator.
(g) If a behavioral emergency report is written regarding an individual with exceptional needs who does not have a behavioral intervention plan, the designated responsible administrator shall, within two days, schedule an individualized education program (IEP) team meeting to review the emergency report, to determine the necessity for a functional behavioral assessment, and to determine the necessity for an interim plan. The IEP team shall document the reasons for not conducting a functional behavioral assessment, not developing an interim plan, or both.
(h) If a behavioral emergency report is written regarding an individual with exceptional needs who has a positive behavioral intervention plan, an incident involving a previously unseen serious behavior problem, or where a previously designed intervention is ineffective, shall be referred to the IEP team to review and determine if the incident constitutes a need to modify the positive behavioral intervention plan.
Prior to the passage of AB 86, Special Education Local Plan Areas (SELPAs) were required to annually collect data on BERs completed by local educational agencies in the SELPA and report the number of BERs in the SELPA to the CDE and the Advisory Commission on Special Education (5 CCR 3052(i)(9), repealed). Upon the passage of AB 86, these data collection and reporting elements concerning BERs are no longer required.
Prior to the passage of AB 86, SELPAs were required to include procedures governing the systematic use of behavioral interventions and emergency interventions in the SELPA local plan (5 CCR 3052(j), repealed). These procedures included staff qualification and training requirements, and approved behavioral emergency procedures. Upon the passage of AB 86, these elements are no longer required to be included in the SELPA local plan. Continuing legal requirements related to emergency interventions (and restrictions thereto) appear in EC Sections 56521.1 and 56521.2.
If you have any questions about this subject, please contact Jim Alford, Education Programs Consultant, Special Education Division, by phone at 916-327-8877 or by e-mail at firstname.lastname@example.org.
Original signed by Fred Balcom. Hard copy of the signed document is available by contacting the Special Education Division's Director's Office at 916-445-4602.
Fred Balcom, Director
Special Education Division