Positive Behavior Support: A Legal Perspective

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Positive Behavior SupportA Legal Perspective

• Presented by
• Jennifer Lowman, Esq.
• Education Law Center-PA
• www.elc-pa.org

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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

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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 childs 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 IDEAs requirements for PBS.

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Special Education Plan

• Every school districts 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.

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Section 14.133 Positive Behavior Support

• Programs must include research-based practices
  and techniques.
• Behavior support programs and plans must be based
  on a functional assessment of behavior (FBA) and
  utilize positive behavior techniques.

• Intervention must be the least intrusive
  necessary.
• Restraints are a measure of last resort.

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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 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 childs 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 behavior

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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 dont give examples of what constitutes
  treatment of a demeaning nature
• 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 childs 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 childs 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 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

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Physical Restraints

• Restraints to control acute or episodic
  aggressive or self-injurious behavior may be used
  only when
• Student is acting in manner as to be clear and
  present danger
• Less restrictive measures have been proven to be
  or are less effective

• Parent must be notified.
• IEP Team must meet within 10 school days unless
  parent waives meeting in writing.
• At meeting, IEP Team must consider whether child
  needs FBA, reevaluation, new or revise PBSP, or
  change in placement to address inappropriate
  behavior.

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Prohibition on Prone Restraints

• NO PRONE (face-down)
• RESTRAINTS!!!

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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

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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

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Required Reporting on Use of Restraints

• Schools must maintain report data on the use of
  restraints as required by PDE
• Report shall be reviewed during PDEs cyclical
  compliance monitoring process

• PDE has developed a restraint-tracking system.
  Required reporting elements include type of
  restraint used, names titles of staff who did
  the restraint, if restraint was listed in 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 required.

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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 (5)
• 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
  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!
• Pennsylvanias Schoolwide Positive Behavior
  Support System An Introduction
• http//www.pattan.k12.pa.us/files/Behavior/SWPBS-I
  ntro010809.pdf

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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

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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)

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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)

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Additional Information Resources

• Functional Behavior Assessment
• Functional Behavior Assessment Worksheet
  http//www.pattan.k12.pa.us/files/Behavior/FBA0113
  09.pdf
• Appendix A to Worksheet (Functional Assessment
  Observation Tools) http//www.pattan.k12.pa.us/f
  iles/Behavior/FuncAssessObs0109.pdf
• Appendix B to Worksheet (Functional Assessment
  Interview Forms) http//www.pattan.k12.pa.us/file
  s/Behavior/FuncAssessIntv0109.pdf
• Appendix C to Worksheet (Functional Assessment
  Secondary Team Forms) http//www.pattan.k12.pa.u
  s/files/Behavior/FuncAssessSectm0109.pdf
• Positive Behavior Support Plans
• Sample PBSP http//www.pattan.k12.pa.us/files/Beh
  avior/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