FAQs for LEAs Behavioral Intervention

Noted: Responses to these frequently asked questions provide information contained in state and federal laws and regulations and OSEP guidance. For information about behavior intervention that is based on peer-reviewed research, see the Behavioral Intervention Plans Web page.

Assembly Bill 86 (AB 86), the Education Omnibus Trailer Bill, Chapter 48, Statutes of 2013, repealed regulations and added state statute that addressed behavioral interventions. 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.

The following questions were submitted to the CDE during the Behavioral Intervention Plan Stakeholders Workgroup meetings. The questions are arranged in categories, and therefore are not provided in the order in which they were submitted.

Behavior Emergency Interventions

1. What is an LEA required to do after an emergency intervention is used on a student?

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 school day 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. All behavioral emergency reports shall immediately be forwarded to, and reviewed by, a designated responsible administrator. (Education Code sections 56521.1(e) and (f))

2. Under what circumstances must an LEA schedule an IEP team meeting within two days following the use of an emergency intervention?

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 the functional behavioral assessment, not developing an interim plan, or both. (Education Code Section 56521.1(g))

3. When does a parent or guardian see the behavioral emergency report?

The parent shall have the right and opportunity to examine all school records of his or her child and to receive copies of them within five business days after the request is made by the parent, either orally or in writing. The public agency shall comply with a request for school records without unnecessary delay before any meeting regarding an individualized education program or any hearing or resolution session and in no case more than five business days after the request is made orally or in writing. (Education Code Section 56504)

4. Under what circumstances must an incident involving the use of an emergency intervention be referred to the IEP team?

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 the functional behavioral assessment, not developing an interim plan, or both.

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. (Education Code Section 56521.1(g) and (h))

5. Are there prohibitions on the types of emergency interventions that can be used to address a student’s behavior? What are they?

Education Code Section 56521.2 lists the following prohibitions:

• (a) A local educational agency or nonpublic, nonsectarian school or agency serving individuals with exceptional needs pursuant to Sections 56365 and 56366, shall not authorize, order, consent to, or pay for the following interventions, or any other interventions similar to or like the following:
• (1) Any intervention that is designed to, or likely to, cause physical pain, including, but not limited to, electric shock.
• (2) An intervention that involves the release of noxious, toxic, or otherwise unpleasant sprays, mists, or substances in proximity to the face of the individual.
• (3) An intervention that denies adequate sleep, food, water, shelter, bedding, physical comfort, or access to bathroom facilities.
• (4) An intervention that is designed to subject, used to subject, or likely to subject, the individual to verbal abuse, ridicule, or humiliation, or that can be expected to cause excessive emotional trauma.
• (5) Restrictive interventions that employ a device, material, or objects that simultaneously immobilize all four extremities, including the procedure known as prone containment, except that prone containment or similar techniques may be used by trained personnel as a limited emergency intervention.
• (6) Locked seclusion, unless it is in a facility otherwise licensed or permitted by state law to use a locked room.
• (7) An intervention that precludes adequate supervision of the individual.
• (8) An intervention that deprives the individual of one or more of his or her senses.

Emergency interventions shall not include an amount of force that exceeds that which is reasonable and necessary under the circumstances. Further, no emergency intervention shall be employed for longer than is necessary to contain the behavior. A situation that requires prolonged use of an emergency intervention shall require the staff to seek assistance of the school site administrator or law enforcement agency, as applicable to the situation. (Education Code Section 56521.1(c) and (d)(3))

6. Can LEAs rely on the use of such emergency interventions as restraint and seclusion instead of developing positive behavioral intervention plans?

Emergency interventions may only be used to control unpredictable, spontaneous behavior that poses clear and present danger of serious physical harm to the individual with exceptional needs, or others, and that cannot be immediately prevented by a response less restrictive than the temporary application of a technique used to contain the behavior. Further, emergency interventions shall not be used as a substitute for the systematic behavioral intervention plan that is designed to change, replace, modify, or eliminate a targeted behavior. (Education Code Section 56521.1(a) and (b))

Individualized Education Programs and Teams

7. What special factors should IEP team members consider in developing or reviewing the IEP?

In Title 34, Code of Federal Regulations, (34 CFR) Section300.324 “Development, review, and revision of IEP,” the term “special factors” appears as follows: “(2) Consideration of special factors. The IEP Team must— (i) In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” Similar language is found in Education Code sections 56521.2(b) and 56341.1(b)(1).

8. What is the role of school personnel in reviewing the IEP of a student with behavioral challenges?

In developing the IEP, the IEP Team shall, in the case of a child whose behavior impedes the child's learning or that of others, consider the use of “positive behavioral interventions and supports [PBIS], and other strategies,” to address that behavior. The IEP team shall also consider these matters when reviewing the IEP. A regular education teacher of the child, as a member of the IEP Team, shall, to the extent appropriate, participate in the development of the IEP (or review of the IEP) of the child, including the determination of appropriate positive behavioral interventions and supports, and other strategies. (Title 20, United State Code, (20 USC) sections 1414(d)(3)(B)(i); 1414(d)(3)(C); 1414(d)(4); 34 CFR Section 300.324(a)(2)(i); 300.324(a)(3)(i); 300.324(b)(2); 300.324(b)(3); Education Code sections 56341(b)(2); 56341.1(b)(1); 56341.1(e); and 56521.2(b)).

9. How and when does the IEP team determine that a student’s behavior impedes his or her learning or that of others?

When a child’s behavior is impeding his learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. The statutes and regulations do not provide specific guidance as to when a child’s behavior is deemed to “impede” his learning or that of others.

10. How does an IEP change when a student is determined to have behavioral challenges?

The IDEA does not specify the particular interventions, supports or strategies that must be used. The federal Office of Special Education Programs (OSEP) has stated that while conducting a functional behavioral assessment (FBA) typically precedes developing positive behavioral intervention strategies, in the case of a child whose behavior impedes learning, the focus is on interventions and strategies, not assessments. The IEP team may address the behavior through annual goals in the IEP, program modifications, support for teachers, and any related services necessary to achieve behavioral goals in the IEP.

OSEP has encouraged a “proactive” approach to ensure that students who need BIPs to succeed in school receive them. Thus, if the IEP team determines that a BIP would be appropriate for the child, it must be included in the IEP. If the child needs a BIP to improve learning and socialization, the BIP can be included in the IEP and aligned with the goals in the IEP. (71 Federal Register 46683 (August 14, 2006); 71 Federal Register 46721 (August 14, 2006); Questions and Answers on Discipline Procedures, U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS), 52 Individuals with Disabilities Education Law Report 231 (June 1, 2009), Q. E-1, E-2, E-3.)

Assessment

11. What is a functional behavioral assessment?

No state or federal law or regulation defines a functional behavioral assessment (FBA). However, it is generally understood to be an “evaluation” under the IDEA when a public agency conducts an FBA to assist in determining whether a child is, or continues to be a child with a disability and/or to determine the nature and extent of the special education and related services that the child needs, including the need for a BIP. (Questions and Answers on Discipline Procedures, OSERS, 52 Individuals with Disabilities Education Law Report 231 (June 1, 2009), Q. E-4; Letter to Anonymous, 59 Individuals with Disabilities Education Law Report 14 (OSEP, April 9, 2012); 20 USC Section 1414(a), (c); 34 CFR Section 300.15)

12. When are LEAs required to conduct FBAs?

An FBA must be conducted when school authorities seek to change the placement of a child with a disability because of a violation of a code of student conduct and the IEP team determines that the conduct was a manifestation of the child’s disability and the LEA had not conducted an FBA prior to such determination before the behavior that resulted in the change of placement.

An FBA must be conducted “as appropriate” in cases of disciplinary removals involving a change in placement in which the IEP team determines that the conduct was not a manifestation of the child’s disability.

An FBA must be conducted when the IEP team determines that it would be appropriate for the child. (20 USC sections 1415(k)(1)(D)(ii); 1415(k)(1)(F)(i); 34 CFR sections 300.530(b)(2); 300.530(d)(1)(ii); 300.530(d)(5); and 300.530(f); Questions and Answers on Discipline Procedures, OSERS, 52 Individuals with Disabilities Education Law Report 231 (June 1, 2009), Q. E-1)

13. Who is qualified to conduct a functional behavioral assessment?

Education Code Section 56320(b)(3) establishes that assessments of students with exceptional needs “are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of the assessments, except that individually administered tests of intellectual or emotional functioning shall be administered by a credentialed school psychologist.” Assessments must “be conducted by persons competent to perform the assessment, as determined by the local educational agency.”

In addition, the Education Code states that “a person recognized by the national Behavior Analyst Certification Board as a Board Certified Behavior Analyst (BCBA) may conduct behavioral assessments . . . for individuals with exceptional needs.” However, educational entities are not required to use a BCBA to perform a behavioral assessment, indicating that other “trained and knowledgeable” personnel may perform behavioral assessments. It should be noted that the California Commission on Teacher Credentialing standards relating to preparation for the School Psychology credential state that candidates must be well versed in a variety of assessment methods, including behavioral assessment. (Education Code sections 56322, 56525(a) and (b)).

14. Does conducting a functional behavioral assessment require a parent’s or guardian’s consent?

Yes, parental consent is required before an FBA may be conducted.
(Questions and Answers on Discipline Procedures, OSERS, 52 Individuals with Disabilities Education Law Report 231 (June 1, 2009), Q. E-4)

15. Do the procedural requirements for conducting assessments to determine a child’s eligibility for special education or the child’s educational needs apply to functional behavioral assessment?

Yes. There are no state and federal laws or regulations that pertain specifically to functional behavioral assessments only. References in law and regulation to assessment pertain to all assessments.

16. If a parent disagrees with a functional behavioral assessment does he or she have the right to obtain an independent educational evaluation?

Subject to certain conditions, a parent or guardian has the right to obtain, at public expense, an independent educational assessment of the pupil from qualified examiners, if the parent or guardian disagrees with an assessment obtained by the public education agency. The public agency has the option of requesting a due process hearing to show that its evaluation is appropriate. (34 CFR 300.502)

17. What other types of assessments could be completed when a student has behavioral challenges that impede his or her learning or that of others?

Education Code Section 56320 says “...An individual assessment of the pupil's educational needs shall be conducted, by qualified persons, in accordance with requirements including, but not limited to, all of the following:

• (e) Pursuant to Section 1414(b)(2)(B) of Title 20 of the United States Code, no single measure or assessment is used as the sole criterion for determining whether a pupil is an individual with exceptional needs or determining an appropriate educational program for the pupil.
• (f) The pupil is assessed in all areas related to the suspected disability including, if appropriate, health and development, vision, including low vision, hearing, motor abilities, language function, general intelligence, academic performance, communicative status, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status. A developmental history shall be obtained, when appropriate. For pupils with residual vision, a low vision assessment shall be provided in accordance with guidelines established pursuant to Section 56136. In assessing each pupil under this article, the assessment shall be conducted in accordance with Sections 300.304 and 300.305 of Title 34 of the Code of Federal Regulations.”

Behavioral Intervention Plans

18. What kinds of behaviors would require an LEA to consider providing a student with a behavioral intervention plan?

Education Code Section 56521.1 says “(b) In the case of a child whose behavior impedes the child's learning or that of others, the individualized education program team shall consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior, consistent with Section 1414(d)(3)(B)(i) and (d)(4) of Title 20 of the United States Code and associated federal regulations.” Please also see the California Department of Education’s guidance document “Local Educational Agency and Individualized Education Program Team Responses to the Behavior of Students with Disabilities”

19. When are LEAs required to develop behavioral intervention plans (BIPs)?

A BIP must be implemented when school authorities seek to change the placement of a child with a disability because of a violation of a code of student conduct and the IEP team determines that the conduct was a manifestation of the child’s disability and the LEA had not conducted an FBA prior to such determination before the behavior that resulted in the change of placement. If a BIP had already been developed, the IEP team must review the existing BIP and modify it as necessary to address the behavior.

In cases of disciplinary removals involving a change in placement in which the IEP team determines that the conduct was not a manifestation of the child’s disability, the child shall receive, as appropriate, behavioral intervention services, and modifications, that are designed to address the behavior violation so that it does not recur.

Finally, if the IEP team determines that a BIP would be appropriate for the child, it must be included in the IEP. (20 USC sections 1415(k)(1)(D)(ii); 1415(k)(1)(F)(i) and(ii); 34 CFR sections 300.530(b)(2); 300.530 (d)(ii); 300.530 (d)(5); 300.530(f); Questions and Answers on Discipline Procedures, OSERS, 52 Individuals with Disabilities Education Law Report 231 (June 1, 2009), Q. E-2)

20. Who is qualified to develop behavioral intervention plans and provide positive behavioral intervention services and supports?

In California, a person recognized by the national Behavior Analyst Certification Board as a BCBA may provide behavioral intervention services, although an LEA is not required to use a BCBA for this purpose. Otherwise, “behavior intervention” shall be “designed or planned” only by personnel who have one of the following: (1) pupil personnel services credential with authorization in school counseling or school psychology; (2) special education instruction credential; (3) Marriage and Family Therapist license; (4) Clinical Social Worker license; (5) Educational Psychologist license; (6) psychologist license; or (7) master’s degree in education, psychology, counseling, behavior analysis, behavior science, human development, social work, rehabilitation, or a related field.

In order to provide behavior intervention, including implementation of BIPs, but not including development or modification of BIPs, one must either (1) have one of the qualifications listed above (for those who may design or plan behavior intervention), or (2) be under the supervision of someone qualified to design or plan behavior intervention, possess a high school diploma or its equivalent, and receive the specific level of supervision required in the pupil’s IEP. Please also see the California Department of Education’s guidance letter “Requirements for Personnel Involved in Behavioral Intervention.” (Education Code Section 56525(a) and (b); 5 CCR Section 3065(d) and (e))

Discipline

21. How are disciplinary procedures related to positive behavioral intervention planning for students with IEPs?

If a disciplinary removal from school constitutes a change of placement, i.e., the removal is for more than ten consecutive days (including a removal of up to 45 days in a case involving weapons, drugs, or serious bodily injury) or a series of removals totaling more than ten days in a school year constitutes a pattern, the IEP team must determine if the conduct (1) was caused by, or had a substantial relationship to, the child’s disability; or (2) was the direct result of the local educational agency’s (LEA) failure to implement the IEP. If (1) or (2) applies, the conduct is determined to be a manifestation of the child’s disability. When the IEP team determines that the conduct was a manifestation of the child’s disability, the IEP team shall (1) conduct an FBA, and implement a BIP for such child, unless the LEA had already conducted an FBA prior to such determination before the behavior that resulted in the change in placement, or (2) in the situation where a BIP has already been developed, review the BIP and modify it, as necessary, to address the behavior. (20 USC sections 1415(k)(1)(C); 1415(k)(1)(E); 1415(k)(1)(F)(i) and (ii); 1415(k)(1)(G); 34 CFR sections 300.530(c); 300.530 (e)(1) and (2); 300.530(f); 300.530(g); 300.536.)

22. If a student’s behavior is determined to be a manifestation of the student’s disability, what are the district’s obligations with respect to positive behavior interventions and assessment?

When the IEP team determines that the conduct was a manifestation of the child’s disability, the IEP team shall (1) conduct an FBA, and implement a BIP for such child, unless the LEA had already conducted an FBA prior to such determination before the behavior that resulted in the change in placement, or (2) in the situation where a BIP has already been developed, review the BIP and modify it, as necessary, to address the behavior. (20 USC sections 1415(k)(1)(F)(i) and (ii); 34 CFR Section 300.530(f))

23. If a student’s behavior is determined not to be a manifestation of the student’s disability, what are the district’s obligations with respect to positive behavior interventions and assessment?

In disciplinary removals involving a change in placement in which the IEP team determines that the conduct was not a manifestation of the child’s disability, the child shall receive, as appropriate, an FBA, behavioral intervention services, and modifications, that are designed to address the behavior violation so that it does not recur. (20 USC Section 1415(k)(1)(D)(ii); 34 CFR sections 300.530(b)(2); 300.530 (d)(1)(ii); 300.530 (d)(5))