Positive Behavior Support A Legal Perspective by iiz13167

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									Positive Behavior Support:
    A Legal Perspective
         Presented by
     Jennifer Lowman, Esq.
    Education Law Center-PA
        www.elc-pa.org
                 Why PBS? Why now?
• The Individuals with Disabilities Education Act (IDEA)
  requires PBS (a/k/a PBIS) to be used for certain eligible
  children.
• 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
  disorders).
     – 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:
       http://www.apa.org/ed/cpse/zttfreport.pdf


April 15, 2009             PBS: A Legal Perspective                   2
       What does the IDEA say about
                  PBS?
• 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
  implemented.
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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
  address.
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      Legal Requirements for PBS in
              Pennsylvania
• 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,
  including:
     – 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.


April 15, 2009          PBS: A Legal Perspective   7
                     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.


April 15, 2009          PBS: A Legal Perspective                  8
          Behavior Support Defined
• The development, change, and
  maintenance of selected behaviors
  through the systematic application of
  behavior change techniques.
• It is about changing behaviors!




April 15, 2009    PBS: A Legal Perspective   9
      Positive Behavior Support Plan
                 Defined
• 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

April 15, 2009               PBS: A Legal Perspective                     10
Aversive Techniques Defined
• Deliberate activities designed
  to establish a negative
  association with a specific
  behavior



April 15, 2009   PBS: A Legal Perspective   11
                 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

April 15, 2009          PBS: A Legal Perspective           12
  Treatment of a Demeaning Nature
• Regs don’t give examples of what
  constitutes “treatment of a demeaning
  nature”
• What would be some examples?




April 15, 2009   PBS: A Legal Perspective   13
                 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.

April 15, 2009       PBS: A Legal Perspective   14
                 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
  IEP.
• 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

April 15, 2009         PBS: A Legal Perspective               15
                 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.

April 15, 2009            PBS: A Legal Perspective                  16
 Prohibition on Prone Restraints

       NO PRONE (face-down)
          RESTRAINTS!!!




April 15, 2009   PBS: A Legal Perspective   17
    Restraints in IEPS only when:
• Used with specific component elements of
  PBS
     – 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

April 15, 2009        PBS: A Legal Perspective    18
                 Additional Prohibitions on
                         Restraints
• Restraints may not be included in the IEP:
     – For staff convenience
     – As a substitute for an educational program, or
     – Employed as punishment




April 15, 2009           PBS: A Legal Perspective   19
        Required Reporting on Use of
                Restraints
• 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.
April 15, 2009    PBS: A Legal Perspective       20
     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
  required.

April 15, 2009   PBS: A Legal Perspective   21
    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).

April 15, 2009         PBS: A Legal Perspective           22
  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
  (5%)
• Other states that have implemented SWPBS
  have reduced disciplinary referrals, increased
  students’ academic achievement, and improved
  school climate and safety

April 15, 2009    PBS: A Legal Perspective     23
            SWPBS in Pennsylvania
• 25 schools in first cohort in 2nd year of
  implementation
• 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-
       Intro010809.pdf

April 15, 2009        PBS: A Legal Perspective             24
                 What Can Schools Do?
• Get outside help on developing and
  implementing PBS - IUs, PaTTAN, private
  consultants
• For individual child, do reevaluation and/or
  FBA
• Make sure all appropriate staff are trained
  in the use of restraints
• Convene human rights committee to
  oversee use of restraints
April 15, 2009         PBS: A Legal Perspective   25
                 What Can Parents Do?
• Advocate for schools to get training on using
  PBS
• 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)

April 15, 2009         PBS: A Legal Perspective      26
Additional Information & Resources
• OSEP Center on Positive Behavioral
  Interventions & Supports:
  http://www.pbis.org/
• Pennsylvania Training and Technical
  Assistance Network (PaTTAN):
  http://www.pattan.k12.pa.us/ (click on
  “Behavior” under “Evidence-Based
  Practices”)

April 15, 2009   PBS: A Legal Perspective   27
Additional Information & Resources
• Functional Behavior Assessment
     – Functional Behavior Assessment Worksheet:
       http://www.pattan.k12.pa.us/files/Behavior/FBA011309.pdf
     – Appendix A to Worksheet (Functional Assessment Observation Tools):
       http://www.pattan.k12.pa.us/files/Behavior/FuncAssessObs0109.pdf
     – Appendix B to Worksheet (Functional Assessment Interview Forms):
       http://www.pattan.k12.pa.us/files/Behavior/FuncAssessIntv0109.pdf
     – Appendix C to Worksheet (Functional Assessment Secondary Team
       Forms):
       http://www.pattan.k12.pa.us/files/Behavior/FuncAssessSectm0109.pdf

• Positive Behavior Support Plans
     – Sample PBSP:
       http://www.pattan.k12.pa.us/files/Behavior/PBSP070808.pdf

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

April 15, 2009               PBS: A Legal Perspective                       28

								
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