Positive Behavior Support A Legal Perspective by iiz13167


									Positive Behavior Support:
    A Legal Perspective
         Presented by
     Jennifer Lowman, Esq.
    Education Law Center-PA
                 Why PBS? Why now?
• The Individuals with Disabilities Education Act (IDEA)
  requires PBS (a/k/a PBIS) to be used for certain eligible
• Studies have shown that students with disabilities
  constitute a disproportionately large percentage of
  those students who are expelled and suspended from
  school (esp. students with emotional and behavioral
     – See, e.g., Are Zero Tolerance Policies Effective in the Schools?
       An Evidentiary Review and Recommendations (2006) by the
       American Psychological Association Zero Tolerance Task Force:

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       What does the IDEA say about
• Since 1997, the IDEA has required IEP Teams to
  “consider the use of positive behavioral interventions
  and supports, and other strategies” to address the
  needs of a child whose behavior impedes the child’s
  learning or that of others. 34 C.F.R. § 300.324(a)(2)(i).
     – One of the “special considerations” for IEP Teams
• The regular education teacher who is part of the IEP
  Team must participate in deciding the appropriate PBIS
  for the child. 34 C.F.R. § 300.324(a)(3)(i).
• When child is subject to certain types of discipline, the
  IDEA requires a functional behavioral assessment (FBA)
  to be done and behavioral intervention plan to be
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                 Remember FAPE!
• A child with an IEP is entitled to a free
  appropriate public education (FAPE).
• Overuse of disciplinary measures can be a
  sign of an inappropriate program.
• May need reevaluation and/or functional
  behavior assessment (FBA) to figure out
  what is causing behaviors and how to
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      Legal Requirements for PBS in
• Chapter 14 (State regulations on Special
  Education Services and Programs) was
  amended effective July 1, 2008.
• Major addition to new regs was section on
  Positive Behavior Support.
• PA has expanded upon IDEA’s
  requirements for PBS.

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                 Special Education Plan
• Every school district’s special education
  plan must describe school district
  procedures on behavior support services,
     – a description of the training provided to staff
      in the use of PBS,
     – de-escalation techniques and appropriate
      responses to student behavior that may
      require immediate intervention. 22 Pa.
      Code § 14.104(b)(6).
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                      Section 14.133:
                 Positive Behavior Support
• Requires that positive, rather than
  negative, measures form the basis of
  behavior support programs.
• All students & eligible young children shall
  be free from demeaning treatment, the
  use of aversive techniques, and the
  unreasonable use of restraints.

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                     Section 14.133:
                 Positive Behavior Support
• Programs must include              • Intervention must be the
  research-based                       least intrusive
  practices and                        necessary.
  techniques.                        • Restraints are a
• Behavior support                     measure of last resort.
  programs and plans must
  be based on a functional
  assessment of behavior
  (FBA) and utilize positive
  behavior techniques.

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          Behavior Support Defined
• The development, change, and
  maintenance of selected behaviors
  through the systematic application of
  behavior change techniques.
• It is about changing behaviors!

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      Positive Behavior Support Plan
• Plan for children who require specific
  intervention to address behavior that interferes
  with learning.
• PBSP must:
     – Be developed by the IEP Team
     – Be based on a FBA
     – Be part of the child’s IEP (either as part of goals and
       SDI or as a separate PBSP attached to IEP)
     – Include methods that utilize positive reinforcement &
       other positive techniques
           • Exs: Positive verbal statements, specific tangible rewards

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Aversive Techniques Defined
• Deliberate activities designed
  to establish a negative
  association with a specific

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                 Continued Prohibition of
                  Aversive Techniques
• Schools may not use:
     – Corporal punishment (no spanking!)
     – Punishment for a manifestation of disability
     – Locked rooms, locked boxes or other structures or
       spaces from which the student cannot readily exit
     – Noxious substances (like pepper spray)
     – Deprivation of basic human rights, such as
       withholding meals, water or fresh air
     – Suspensions constituting a pattern…
     – Treatment of a demeaning nature
     – Electric shock

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  Treatment of a Demeaning Nature
• Regs don’t give examples of what
  constitutes “treatment of a demeaning
• What would be some examples?

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                 Restraints Defined
• The application of physical force, with or
  without the use of any device, for the
  purpose of restraining the free movement
  of a child’s body.
• The term does not include briefly holding,
  without force, a [child] to calm or comfort
  him, guiding [a child] to an appropriate
  activity, or holding a [child’s] hand to safely
  escort her from one area to another.

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                 Additional Exclusions
• Hand-over-hand assistance with feeding or
  task completion & techniques prescribed by a
  qualified medical professional for reasons of
  safety or for therapeutic or medical treatment as
  agreed to by the parents and specified in the
• Mechanical restraints: when used to prevent
  injury or promote normative positioning, are
  permissible when prescribed, listed in IEP, and
  agreed to by parents.
     – Examples: PT and OT devices, seatbelts in
       wheelchairs or on toilets, safety harnesses in buses

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                 Physical Restraints
• Restraints to control                • Parent must be notified.
  acute or episodic                    • IEP Team must meet
  aggressive or self-                    within 10 school days
  injurious behavior may be              unless parent waives
  used only when:                        meeting in writing.
     – Student is acting in manner
       as to be clear and present
                                       • At meeting, IEP Team
       danger                            must consider whether
     – Less restrictive measures         child needs FBA,
       have been proven to be or         reevaluation, new or
       are less effective                revise PBSP, or change
                                         in placement to address
                                         inappropriate behavior.

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 Prohibition on Prone Restraints

       NO PRONE (face-down)

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    Restraints in IEPS only when:
• Used with specific component elements of
     – What would be an example of this?
• Used in conjunction with teaching alternative
  skills to replace problem behavior
• Staff are authorized to use the procedure and
  have received the staff training required
• There is a plan for eliminating the use of
  restraint through PBS

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                 Additional Prohibitions on
• Restraints may not be included in the IEP:
     – For staff convenience
     – As a substitute for an educational program, or
     – Employed as punishment

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        Required Reporting on Use of
• Schools must           • PDE has developed a
  maintain & report data   restraint-tracking
  on the use of            system. Required
  restraints as required   reporting elements
  by PDE                   include type of
• Report shall be          restraint used, names
  reviewed during          & titles of staff who
  PDE’s cyclical           did the restraint, if
  compliance               restraint was listed in
  monitoring process       IEP, etc.
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     Referral to Law Enforcement
• Under IDEA, schools can refer students
  with disabilities to the police.
• New Chapter 14 regs require that,
  subsequent to a referral to law
  enforcement, for students with disabilities
  who have positive behavior support plans,
  an updated FBA and PBSP shall be

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    A Word about Charter Schools &
        Cyber Charter Schools
     – Chapter 711, the State regs on Charter School
       Services and Programs for Children with Disabilities,
       includes the same requirements for PBS. 22 Pa.
       Code § 711.46 (Positive Behavior Support).
     – While charter schools are not required to have a
       separate special education plan, charter schools and
       cyber charter schools must have a written policy and
       procedures on the use of behavior support
       techniques and obtaining parental consent prior to
       the use of restrictive or intrusive procedures or
       restraints. 22 Pa. Code § 711.46(f).

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  Schoolwide Positive Behavior Support
   (SWPBS): A Broader Movement
• Not just applicable to students with IEPs
• SWPBS: An evidence-based, three-tiered,
  planned approach to creating, teaching, and
  reinforcing students’ social, emotional, and
  academic learning skills
• Primary (80%), Secondary (15%), and Tertiary
• Other states that have implemented SWPBS
  have reduced disciplinary referrals, increased
  students’ academic achievement, and improved
  school climate and safety

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            SWPBS in Pennsylvania
• 25 schools in first cohort in 2nd year of
• External coaching and TA by PaTTAN and some
  IU Training & Consultation staff (TACs)
• A State Leadership Team advises the effort
• Going to scale: Need resources, including
  legislation and funding!
• Pennsylvania’s Schoolwide Positive Behavior
  Support System: An Introduction
     – http://www.pattan.k12.pa.us/files/Behavior/SWPBS-

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                 What Can Schools Do?
• Get outside help on developing and
  implementing PBS - IUs, PaTTAN, private
• For individual child, do reevaluation and/or
• Make sure all appropriate staff are trained
  in the use of restraints
• Convene human rights committee to
  oversee use of restraints
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                 What Can Parents Do?
• Advocate for schools to get training on using
• Make sure special education plan includes PBS
  procedures, etc.
• Ask district to convene human rights committee
• If child is still receiving inappropriate discipline
  that violates regulations, parent can file a
  complaint with the Bureau of Special Education,
  ask for IEP Facilitation, use mediation, or
  request a special education hearing (also OCR
  or PHRC complaint)

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Additional Information & Resources
• OSEP Center on Positive Behavioral
  Interventions & Supports:
• Pennsylvania Training and Technical
  Assistance Network (PaTTAN):
  http://www.pattan.k12.pa.us/ (click on
  “Behavior” under “Evidence-Based

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Additional Information & Resources
• Functional Behavior Assessment
     – Functional Behavior Assessment Worksheet:
     – Appendix A to Worksheet (Functional Assessment Observation Tools):
     – Appendix B to Worksheet (Functional Assessment Interview Forms):
     – Appendix C to Worksheet (Functional Assessment Secondary Team

• Positive Behavior Support Plans
     – Sample PBSP:

•   School Is Not Supposed to Hurt: Investigative Report on Abusive Restraint
    and Seclusion in School: http://www.napas.org/sr/SR-Report.pdf

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