On August 1, 2016, the U.S. Dept. of Education (USDOE), Office of Special Education and Rehabilitation Services (OSERS) issued an important 16 page guidance letter informing schools that they must do more to provide positive behavioral supports to children with disabilities, instead of suspending them. The letter decries the fact that in the 2013-14 school year, nationwide 10% of all children with disabilities were suspended for 10 days or less, and that rate rises to 19% for children of color with disabilities. The guidance focuses on short term suspensions because the law gives school districts far more flexibility with suspensions of 10 days or less.
The guidance letter makes clear that,
Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.
Research shows that implementing evidence-based, multi-tiered behavioral frameworks can help improve overall school climate, school safety, and academic achievement for all children, including children with disabilities.
Since children who are eligible for special education are legally entitled to a free appropriate public education (FAPE), OSERS makes clear that,
when a child with a disability experiences behavioral challenges, including those that result in suspensions or other exclusionary disciplinary measures, appropriate behavioral supports may be necessary to ensure that the child receives FAPE.
In the same way that an IEP Team would consider a child’s language and communication needs, and include appropriate assistive technology devices or services in the child’s IEP to ensure that the child receives a meaningful educational benefit, so too must the IEP Team consider and, when determined necessary for ensuring FAPE, include or revise behavioral supports in the IEP of a child with a disability exhibiting behavior that impedes his or her learning or that of others.
IEPs should contain behavioral supports supported by evidence—IDEA specifically requires that both special education and related services and supplementary aids and services be based on peer-reviewed research to the extent practicable. As a matter of best practice, we strongly encourage schools to consider how the implementation of behavioral supports within the IEP could be facilitated through a school-wide, multi-tiered behavioral framework.
In many cases, it is not simply a matter of changing disciplinary practice. As OSERS states,
Appropriate supplementary aids and services could include those behavioral supports necessary to enable a child with a disability to be educated in regular classes or the setting determined to be the child’s appropriate placement. Such behavioral supports might include meetings with a behavioral coach, social skills instruction, counselor, or other approaches. In general, placement teams may not place a child with a disability in special classes, separate schooling, or other restrictive settings outside of the regular educational environment solely due to the child’s behavior when behavioral supports through the provision of supplementary aids and services could be provided for that child that would be effective in addressing his or her behavior in the regular education setting.
Program modifications and support for personnel may also be necessary to assure that children with disabilities are receiving the FAPE to which they are entitled.
School personnel may need training, coaching, and tools to appropriately address the behavioral needs of a particular child.
Fortunately, the federal guidance also includes resources, such for classroom strategies, Positive Behavioral Intervention and Supports Implementation and Self-Assessment, and a School Discipline Guidance Package.
The guidance identifies seven specific ways which may indicate that there has been either a procedural or substantive failure in the development, review or revision of a child’s IEP, including:
- The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
- School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
- The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
- There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
- The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
- The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
- School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.
A child’s IEP may not be reasonably calculated to provide a meaningful educational benefit if:
- The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
- The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or
- The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.
To avoid confusion, the federal guidance also makes clear that disciplinary removals are not limited to formal suspensions. They also include:
- A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges;
- Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school;
- Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or
- Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days).
Inappropriate discipline without behavioral supports can impact the child’s right to be educated in the least restrictive environment (LRE) appropriate for the child, as the guidance points out.
Circumstances that may indicate that the child’s placement in the LRE may not be appropriate include, but are not limited to, a scenario in which a continuum of placements that provides behavioral supports is not made available (e.g., behavioral supports not provided in the regular educational setting), and, as a result, the IEP inappropriately calls for the child to be placed in special classes, separate schooling, or another restrictive placement outside the regular educational environment (e.g., home instruction, home tutoring program, or online learning program).
While harsh disciplinarians may not be pleased with the federal guidance, parents of children with disabilities should be thrilled that the federal government has issued detailed guidance which is designed to ensure that children with disabilities stay in school and receive an appropriate education instead of receiving discipline funneling them into the school to prison pipeline. As an attorney who has represented children with disabilities and their parents in school discipline matters for well over 20 years, this guidance is a welcome tool to correct inappropriately harsh discipline meted out by zero-tolerance educators.
For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.