September 23, 2011
Dear County and District Superintendents, Charter School Administrators, Principals, Special Education Local Plan Area Directors, and Nonpublic School Directors:
PROCEDURES FOR SERIOUS BEHAVIOR PROBLEMS
The purpose of this letter is to update previous information and inform new special education personnel about procedures regarding serious behavior problems and reporting requirements for special education students.
California law recognizes that “the state has continually sought to provide an appropriate and meaningful educational program in a safe and healthy environment for all children regardless of possible physical, mental, or emotionally disabling conditions” (California Education Code [EC] Section 56520[a]). Further, “teachers of children with special needs require training and guidance that provides positive ways for working successfully with children who have difficulties conforming to acceptable behavioral patterns in order to provide an environment in which learning can occur” (EC Section 56520[a]).
The law also recognizes that in situations involving “unpredictable, spontaneous behavior which poses a clear and present danger of serious physical harm to the individual or others,” emergency interventions may be necessary (California Code of Regulations, Title 5 [5 CCR], Section 3052[i]). However, emergency interventions are not a substitute for a systematic positive behavioral intervention plan (BIP) which is included in the student’s individualized education program (IEP) (5 CCR sections 3052[a] and ). In particular, physical restraint or locked seclusion of the student may only be used in properly licensed facilities, by staff trained in emergency interventions, and only with such force and duration as reasonable and necessary under the circumstances (5 CCR sections 3052[i][A]–[C]).
Functional Assessment Analysis
EC sections 56520–56525 and 5 CCR Section 3052 state that students who have disabilities which affect their behavior in school have the right to an IEP designed to bring lasting positive behavioral change (5 CCR Section 3052[a]). The right to a BIP applies equally to students placed in certified nonpublic schools by the school district responsible for providing a free appropriate public education based on the student’s residence (EC Section 56365). When the IEP team determines that strategies employed in the IEP were ineffective to deal with a student’s behavior, a functional analysis assessment (FAA) of the behavior is necessary (5 CCR Section 3052[b]). Before conducting an FAA, parents must be given notice and parental consent to the FAA must be obtained (EC Section 56321). The FAA evaluator must be properly trained to perform the following duties:
The FAA evaluator shall prepare a report that includes:
Revising the Behavioral Intervention Plan Based on the Functional Analysis Assessment
Whenever an IEP includes a BIP, the IEP team must be expanded to include a behavioral intervention case manager. The case manager must assist in conducting the FAA and developing the BIP while consulting with the other team members. Case managers must have training in behavior analysis, including positive behavioral interventions, and the ability to monitor and evaluate the appropriateness and efficacy of an implemented BIP (5 CCR sections 3052[a] and ). The BIP must indicate the frequency of consultation with staff and parents (5 CCR Section 3001[f]).
Pursuant to 5 CCR Section 3001(g), the BIP must include the following items:
According to the time lines specified in the plan, the IEP team reviews the BIP. In most cases, the teacher, instructional assistant, parent, and others implement the BIP. Training, including the specific needs of the BIP and appropriate recordkeeping and documentation, occurs before implementation.
Even in cases when the IEP team has developed a reasonable BIP, emergency intervention may be necessary “to control unpredictable, spontaneous behavior which poses clear and present danger of serious physical harm to the individual or others, and which cannot be immediately prevented by a response less restrictive than the temporary application of a technique used to contain behavior” (5 CCR Section 3052[i]).
However, pursuant to 5 CCR Section 3052(I), emergency intervention may not include any of the following:
Emergency interventions, particularly those employing physical restraint or seclusion, should only be used by properly trained personnel, and only with the degree of force and amount of time necessary to control the emergency. When the emergency has ended, school staff must return to the systematic BIP and positive interventions stated in the IEP.
Behavioral Emergency Report and Timelines
Whenever an emergency intervention is used, the parents must be notified within one school day. Immediately following an emergency intervention, or if serious property damage occurs (regardless if the student has a BIP or not), a Behavioral Emergency Report must be prepared and maintained in the student’s file.
According to 5 CCR Section 3052(i)(5), a Behavioral Emergency Report shall include all of the following:
In addition, “all Behavioral Emergency Reports shall immediately be forwarded to, and reviewed by, a designated responsible administrator.” (5 CCR Section 3052[i]) 5 CCR sections 3052(i)(7)–(8) state:
Anytime a Behavioral Emergency Report is written regarding an individual who does not have a behavioral intervention plan, the designated responsible administrator shall, within two days, schedule an IEP team meeting to review the emergency report, to determine the necessity for a functional analysis assessment, and to determine the necessity for an interim behavioral intervention plan. The IEP team shall document the reasons for not conducting the assessment and/or not developing an interim plan.
Anytime a Behavioral Emergency Report is written regarding an individual who has a behavioral intervention plan, any incident involving a previously unseen serious behavior problem, or where a previously designed intervention is not effective, should be referred to the IEP team to review and determine if the incident constitutes a need to modify the plan.
Special education local plan areas must annually collect and report the number of Behavioral Emergency Reports to the California Department of Education and the Advisory Commission on Special Education (5 CCR Section 3052[i]). The Behavioral Emergency Report form is sent via e-mail to Special Education Local Plan Area (SELPA) Directors and Administrators annually, the first week of September.
If you have any questions regarding this subject, please contact
Kathleen Halvorson, Education Programs Consultant, Special Education Division, by phone at 916-319-0756 or by e-mail at firstname.lastname@example.org (Note, the preceding contact information is no longer valid and has been replaced on 06-Sep-2012) Terry deBoer, Education Programs Consultant, Special Education Division, by phone at 916-327-9626 or by e-mail at email@example.com.
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