By D|K’s School and Higher Education Law Team
In August, the U.S. Department of Education’s Office of Special Education Programs (OSEP) released guidance regarding the use of positive behavioral interventions and supports (PBIS) in individualized education programs (IEPs). OSEP outlined schools’ obligations in providing PBIS to ensure that students with disabilities are receiving Free Appropriate Education (FAPE) under the Individuals with Disabilities Education Act (IDEA). It is critical that districts are aware of OSEP’s concerns over proper consideration of behavioral supports to address a student with disability’s behavior, which may constitute a denial of FAPE.
OSEP’s guidance explains that recent data concerning short-term disciplinary removals, including out of school suspensions, indicates that children with disabilities may have IEPs that do not properly incorporate PBIS. Research also indicates that disciplinary removals have a number of detrimental effects. As a result, OSEP’s guidance signals the belief that positive behavioral supports must be provided to satisfy the IDEA’s mandate of FAPE. OSEP’s guidance also attempts to establish an environmental framework, separate from student removals due to safety concerns, where educators can eliminate or mitigate disciplinary removals because they are using effective techniques to respond to behaviors.
Most notably, OSEP’s guidance stated that the IEP team must consider when, whether and what parts of the IEP need to be addressed or revised when a child’s behavior impacts that child’s or others’ learning through student conduct violations, classroom disruptions and disciplinary removals. For educators, this translates into reconvening the IEP team to determine whether behavioral supports in the IEP should be changed. Failure to properly consider and/or revise behavioral supports in the IEP may lead to a denial of FAPE. Therefore, educators should take care to ensure that IEPs do not continue without review and consideration, or revision, of behavioral supports if the IEPs original supports are not addressing repeated behaviors.
Ultimately, OSEP’s guidance is a strong suggestion for schools to develop and implement a multi-tiered behavioral framework, which research shows improves school climate, school safety, and academic achievement for all children, including children with disabilities. Per OSEP, PBIS works most effectively when incorporated within multi-tiered layers such as: instruction and clear behavioral expectations for all children, targeted small group interventions, and intense individualized supports for those needing it the most.
OSEP’s guidance may be viewed as an attempt to move schools away from short-term removals (i.e. suspensions, and exclusionary disciplinary measures) since the research demonstrates that such actions do not deter, reduce, or eliminate misbehavior or its reoccurrence. Rather, it leads to lower academic performance, falling behind in school, and then disengaging and dropping out. OSEP also corrects the belief that removals up to 10 days are “free days.” Such a blanket interpretation lacks the consideration and evaluation as to whether the IEP and its supports are properly addressing the student’s behavioral needs. It also misunderstands the obligation to reconvene an IEP team if there is a pattern or series of shorter term (less than 10 days) suspensions for the same or similar behavior. Training staff in the proper use of alternative disciplinary measures is another crucial act to ensure the lack of a disciplinary removal and, thus, a failure to implement the behavioral needs in the child’s IEP.
In conclusion, while the guidance may not be legally binding, districts may get burned by ignoring OSEP’s strong suggestions, especially given OSEP’s encouragement to parents to request IEP meetings or file for mediation or a due process complaint. Be safe and don’t play with fire.
If you have any questions about this article, please contact your Davis & Kuelthau, s.c. attorney.
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