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Procedures for Serious Behavior Problems

Letter Head: Tom Torlakson, State Superintendent of Public Instruction, California Department of Education

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][1]). 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][2]).

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][1] and [4]). 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][4][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:

  • Systematic observation of the behavior, antecedents, and consequences
  • Ecological analysis of the setting
  • Review of records, including health and medical factors
  • Review of the history of the behavior (5 CCR Section 3052 [b][1])

The FAA evaluator shall prepare a report that includes:

  • A description of the nature and severity of the behavior(s)
  • Baseline data and an analysis of the antecedents and consequences across all appropriate settings
  • The rate of alternative behaviors, their antecedents, and their consequences
  • Recommendations for consideration by the IEP team (5 CCR Section 3052[b][2])

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][1] and [2]). 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:

  1. A summary of relevant and determinative information gathered from a functional analysis assessment;
  2. An objective and measurable description of the targeted maladaptive behavior(s) and replacement positive behavior(s);
  3. The individual's goals and objectives specific to the behavioral intervention plan;
  4. A detailed description of the behavioral interventions to be used and the circumstances for their use;
  5. Specific schedules for recording the frequency of the use of the interventions and the frequency of the targeted and replacement behaviors; including specific criteria for discontinuing the use of the intervention for lack of effectiveness or replacing it with an identified and specified alternative;
  6. Criteria by which the procedure will be faded or phased-out, or less intense/frequent restrictive behavioral intervention schedules or techniques will be used;
  7. Those behavioral interventions which will be used in the home, residential facility, work site or other noneducational settings; and
  8. Specific dates for periodic review by the IEP team of the efficacy of the program.

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.

Emergency Interventions

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:

  • Any intervention designed to, or likely to, cause physical pain
  • Noxious, toxic, or otherwise unpleasant sprays, mists, or substances in proximity to the individual’s face
  • Denial of adequate sleep, food, water, shelter, bedding, physical comfort, or access to bathroom facilities
  • Verbal abuse, ridicule, humiliation, or other procedures expected to cause excessive emotional trauma
  • Physical restraint by a device, material, or object that simultaneously immobilizes all four extremities, including prone containment or similar techniques, unless the restraint is used by personnel who are trained in the technique, and it is used only as an emergency intervention
  • Locked seclusion, unless it is in a facility otherwise licensed or permitted by state law to use a locked room
  • Any intervention that leaves a student without adequate supervision
  • Any intervention that deprives the student of one or more of the senses

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:

  • The name and age of the individual
  • The setting and location of the incident
  • The name of the staff or other persons involved
  • A description of the incident and the emergency intervention used, and whether the individual is currently engaged in any systematic behavioral intervention plan
  • Details of any injuries sustained by the individual or others, including staff, as a result of the incident

In addition, “all Behavioral Emergency Reports shall immediately be forwarded to, and reviewed by, a designated responsible administrator.” (5 CCR Section 3052[i][6]) 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][9]). 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 khalvorson@cde.ca.gov (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 tdeboer@cde.ca.gov.

Sincerely,

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

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