Behavior Problems, Discipline and the Law:
The Practitioner’s View
22nd Annual Marathon Co. EBD Institute
February 25, 2015
Lynn Boreson
lboreson@earthlink.net
1
A Cautionary Tale: Evaluation and Application of Eligibility Criteria
The Office of Civil Rights Steps In…

Routine OCR review uncovered possible misinterpretation and misunderstanding of eligibility criteria in
one Wisconsin school district in the areas of CD, LD, OHI, and EBD.
o As part of a settlement agreement tentatively ending in 2017, the district was required to review
eligibility documentation for all district students in those 4 areas - nearly 500 records - by the
end of June 2014
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Any found not to meet standards would result in a re-evaluation of that student by May
2015
Any student found not to be eligible must be provided with compensatory services to
enable the student to return to regular education programming with no special education
services by December 20151
o Results
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CD: approximately 15% (5 of 33) had to be re-evaluated;
SLD: approximately 15% (10 of 153) had to be re-evaluated;
EBD: approximately 18% ( 14 of 79) had to be re-evaluated;
OHI: approximately 33% (56 of 170) had to be re-evaluated.
In all, 85 re-evaluations were required.2
Overall, “need for special education” was very weak with few, if any, examples and
often merely repeating or paraphrasing the questions.
The OCR review was reported in the regional media3.
o Were IEP teams making appropriate eligibility determination and was there adequate
documentation?
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CD – inadequate documentation of adaptive areas, including descriptions of needs and
failure to address standard deviations;
SLD – failure to address exclusionary factors;
EBD – failure to provide examples/discussion regarding settings,
severe/chronic/frequent, how the characteristic(s) identified were manifested in
individual students;
OHI – misuse of criteria as a default; failure to give description of limited
strength/alertness/vitality; failure to describe educational needs related to the health
condition.
1
If you’re not gasping by now, you should be!
Is this what you want to spend your time doing – wouldn’t it have been better to be proactive and provided at least minimal
documentation in the first place?!
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Do you want the media to spotlight possible shortcuts and errors in special education identification practices?
2
2
o Were there discriminatory practices? No. Errors were made regardless of gender or race. It
does, however, raise questions about the district’s possible over-identification of children of
color as disabled.
 Why does this matter?
o Labeling a student requires due process (notices, an evaluation, an IEP
determination of disability (impairment and need for special education);
o Individual decisions must be made – what does the disability look like in this
student? How is the disability manifested in this student?
o Evaluations/re-evaluations serve as the basis for developing an appropriate
program (the IEP)!
o Evaluation/re-evaluation/IEP provide foundation for discussion of
manifestation determination – how is the disability defined? How does this
relate to the behavior(s) leading to a discussion of a disciplinary change of
placement (suspensions more than 10 days total, IAES, expulsion)? Is there a
causal relationship?

Quality EBD Evaluations
o What does the literature say?
 The assessment should be multi-method, multi-source, and across multiple settings.
 Information gathered typically includes intelligence tests, achievement tests, behavior
rating scales, curriculum based assessment, school records, direct observations and
interviews.
 Some of the academic and cognitive assessments are common to other disability categories
and are addressed in the literature for research and best practice. However, the employment
of specific components of EBD assessment (behavior rating scales, interviews and direct
observations) are considered more subjective, are less represented in the literature, and
are more susceptible to bias and judgment.
 Behavior rating scales are a common and efficient means for collecting data regarding an
individual’s behavioral functioning. The scale should not be selected based on its common
use or ease of administration but rather for how it fits the eligibility standards, the type
of information desired, and its technical adequacy.
 The advantage of a direct observation is the opportunity to quantify various dimensions of
current operationally defined behavioral concerns and strengths in their natural environment.
 Data is not defensible when based on only one to two direct observations. An acceptable
number of observations should be 4 to 6 of at least ten minutes in length. Some authors
recommend at least five 20-minute observations across several weeks. Multiple observations
in multiple settings will allow for the opportunity of desirable behaviors to be observed and
will increase the accuracy of the collected information.
 Interviews provide valuable information regarding behavior, context, antecedents and
consequences. To assure a nondiscriminatory assessment for students from culturally and
linguistically diverse backgrounds not only teachers, but family members must be
interviewed to develop a clear picture of the child’s behavior in the different contexts.
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o
Critical factors in making decisions about which rating scales/checklists to use, keep or discard,
and/or purchase
 Date of publication: (an older instrument may still have appropriate questions or
items, although the norm sample may be outdated, for example); what is the
newest/latest version? Does the publisher still sell the protocols and/or other
components of the rating scale or checklist?
 Population used for standardization and norming
 Is it applicable to the population with which the instrument will be used? For
example, if the checklist is used with students who are Native American, was
that population used in the normative sample? What states were represented
(e.g., if the Native American population included in the norm group is
primarily from the southwestern U.S., is that applicable to Wisconsin’s
population)? What about other factors such as gender, socio-economic status,
geographical distribution, etc.?
 What U.S. Census was used for comparison?
 Purpose for using the rating scale or checklist
 What information do you want and does the instrument give it?
 Will it be used for screening, for individuals or for groups, for determination
of disability, for identifying special education needs, etc.?
 Reliability and validity
 Does the instrument measure what it says it measures?
 Does it do so consistently?
 How does it compare or correlate with other similar instruments?
 Administration, scoring and interpreting results
 Who can administer, score, and interpret the instrument? Is there special
training or certification required for evaluators?
 How long does it take to administer and score the instrument? Is there a
computer scoring system?
 How are results reported and displayed (e.g., grade level scores, standard
scores, charts or graphs, etc.)?
 Is the information useful for discussion with other school staff, parents,
outside agencies, etc.?
 What is the cost? Will the instrument be used frequently enough to make it
economically reasonable?
 How many components are there? Are those all part of the package, or must
they be purchased separately? Are all components required or are some
supplemental?
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The Importance of Being Earnest: Collecting Behavioral Data Using Point Sheets
Point sheets
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Do not have to be tied to a token economy (although they may be)
Students may carry sheets with them, or sheets may be sent electronically to teachers.
Remember this is about collecting data, not about responsibility. You might consider bonus points if
a reluctant student carries his/her own sheet, but you need the data so find other ways to get it
(besides having the student carry the sheet).
If you send the sheets home, do not penalize the student if the sheet doesn’t come back – students
aren’t accountable for their parents’ behavior!
Behaviors must be individualized and tied to IEP goals – the point sheet can then be used to track
IEP progress
o 1 or, at most, 2 behaviors may be general (used for all students and not tied to IEP goals)
o If no behaviors ae tied to IEP goals, it is a feedback sheet but cannot be used for data collection
o If the student only has 2 IEP goals, consider doubling up the points for critical skills; break
down goals into objectives or benchmarks and use those.
Use no more than 5 behaviors
Define terms – if you use “work habits”, what does that mean? What is being “on task”?, etc.
Students and all adults working with the student should have the same understanding of
expectations.
Time intervals should be individualized – every 15 minutes, ½ hour, class period, etc. What is
reasonable for this student? Plan to increase the time intervals as student behavior improves.
Students never lose points! There may be time periods when they don’t earn any points, but
never take points away. For example, if a student is tardy, he/she will not earn any points for that
period, but they do not lose points. Using negative points is te same as taking points away (e.g., -2,
0 , 2).
Have 3 categories of points or symbols (e.g., 0-1-2, 0-5-10, thumbs up/down/level) – more than 3
categories may result in splitting hairs (e.g.,. what’s the difference between “4” and “5” on a 1-2-34-5 scale?)
o Using only 2 does not allow a student to “salvage” a time slot that began negatively
o Consider using “bounceback” points or “bonus” points or both – use separate columns for these
so you can track how many of this type of point a student earns; comment on what the bonus
points were for.
 Bounceback is useful if you have a 0-5-10 system, for instance. A student may have
recovered and earn more than “0” but perhaps isn’t quite to a “5”. Reinforcing the student
for turning things around (certainly a desirable behavior) is important; bounceback allows
you to give the student an extra 1 or 2 points as encouragement.
 Bonus points are used when a student goes “above and beyond” – gets extra work done,
ignores the inappropriate behavior of another student or group of students and keeps on
task, exhibits extra kindness or takes on an extra duty.
Consider using charts or graphs – provides a good visual of overall progress; some students like to
do their own charting.
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Draft Point Sheet
Student name:
1st*
2nd
3rd
4th
Lunch
Etc.
Date:
Goal 1
– [from
IEP –
write
what it
is]
Goal 2
– [from
IEP –
write
what it
is]
Goal 3
– [from
IEP –
write
what it
is]
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
1
1
1
1
1
2
2
2
2
2
2
1
1
1
1
1
1
2
2
2
2
2
2
1
1
1
1
1
1
2
2
2
2
2
2
Either
another
individual
goal or a
generic goal
like work
habits (and
define what
that means)
0
0
0
0
0
0
1
1
1
1
1
1
2
2
2
2
2
2
Either
another
individual
goal or a
generic goal
like work
habits (and
define what
that means)
0
0
0
0
0
0
1
1
1
1
1
1
Bounce
back
points
Bonus
points
Initials
of staff
Comments
2
2
2
2
2
2
* Or 8:00 – 8:30, 8:30-9:00, etc.,depending on the time schedule
Crime and Punishment: Discipline Issues
Shortened Days
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Still being misused as a disciplinary change of placement
All students in a program cannot be on shortened days
Should be the exception and not the rule
Based on individual student needs and data – student is unable (physically or emotionally) to
tolerate a whole day of school
Documented in the IEP
Have a plan to increase time
o Meet more frequently than required to review
o Be sure to address behavioral needs related to the need for shortened day
o Consider specific behavior leading to increased time – can use dates but those tend to be less
effective
New DPI Bulletin: Shortened School Day Bulletin
http://sped.dpi.wi.gov/sped_bul14-03
Manifestation Determination

Common Misconceptions
o “It will always be a manifestation with an EBD student”
 Important to accurately document disability so as to differentiate
 Even if it is a manifestation, can still change the placement
o Predetermining the outcome is okay
 Determined by a group including the parents (DPI recommends an IEP Team)
 Staff should not be told what opinion to have
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o “Stacking the deck is okay”
 Team must include people who are knowledgeable about the student
o Saying the student “chooses” to misbehave and it is therefore not a manifestation
 Can’t crawl inside the student’s head and determine “choice”
 The choice may be disturbed and inappropriate – example, student thinks bringing a
weapon to school is a good way to solve problems.
o Only applies to EBD and maybe CD and Autism
 Label doesn’t matter in holding a manifestation determination
 Defining the student’s disability will matter – is behavior a special factor (e.g., interfering
with the student’s learning or that of others)?
“Direct and substantial relationship” between behavior and disability
o Cannot be attenuated (weak), such as low self-esteem as a characteristic.
o Important there is good documentation in the evaluations/re-evaluations and IEPs for the student
(e.g., what does the disability look like in this student? What are the goals/objectives in the IEP?
What are the disability-related needs being addressed?).
New DPI Bulletin: Manifestation Determination
http://sped.dpi.wi.gov/sped_bul14-02
Some Additional Resources
Strategy Briefs: monographs on a wide variety of topics (example: check in/check out, staffstudent relationships, anger management, conflict de-escalation, alternate schools, etc.) with more being
added; tied to tiers of RTI/PBIS; developed by the University of Nebraska-Lincoln
http://k12engagement.unl.edu/strategy-briefs
Websites:
www.interventioncentral.org (behavioral interventions)
www.behavioradvisor.com
www.disciplinehelp.com
www.toptierevidence.org
http://flpbs.fmhi.usf.edu – Florida PBS/University of South Florida
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Wisconsin Eligibility Criteria for EBD [PI 11.36 (7)]
(a) Emotional behavioral disability, pursuant to s. 115.76 (5)(a)5., stats., means social
emotional or behavioral functioning that so departs from generally accepted, age
appropriate ethnic or cultural norms that it adversely affects a child’s academic
progress, social relationships, personal adjustment, classroom adjustment, self-care or
vocational skills.
(b) The IEP team may identify a child as having an emotional behavioral disability if the
child meets the definition under par. (a) and meets all of the following:
1. The child demonstrates severe, chronic, and frequent behavior that is not the result of
situational anxiety, stress or conflict.
2. The child’s behavior described under par. (a) occurs in school and in at least one
other setting.
3. The child displays any of the following:
a. Inability to develop or maintain satisfactory interpersonal relationships,
b. Inappropriate affective or behavior response to a normal situation,
c. Pervasive unhappiness, depression or anxiety,
d. Physical symptoms, pains or fears associated with personal or school problems,
e. Inability to learn that cannot be explained by intellectual, sensory, or health
factors,
f. Extreme withdrawal from social interactions,
g. Extreme aggressiveness from social interactions,
h. Other inappropriate behaviors that are so different from children of similar
age, ability, educational experiences and opportunities that the child or other
children in a regular or special education program are negatively affected.
(c) The IEP team shall relay on a variety of sources of information, including systematic
observations of the child in a variety of educational settings and shall have reviewed
prior, documented interventions. If the IEP team knows the cause of the disability under
this paragraph, the cause may be, but is not required to be, included in the IEP team’s
written evaluation summary.
(d) The IEP team may not identify or refuse to identify a child as a child with an emotional
behavioral disability solely on the basis that the child has another disability, or is
socially maladjusted, adjudged delinquent, a dropout, chemically dependent, or a child
whose behavior is primarily due to cultural deprivation, familial instability, suspected
child abuse or socio-economic circumstances, or when medical or psychiatric diagnostic
statements have been used to describe the child’s behavior.
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