Obtaining Behavioral Supports and Services – COPPA 2010
Obtaining Behavioral Supports and Services
Presented by:
Mark S. Kamleiter, Esquire
2509 First Avenue S.
St. Petersburg, FL 33712
Phone (727) 323-2555 / fax (727) 323-2599
markkamleiter@verizon.net / www.flspedlaw.com
Table of Contents
A. Introduction:
Every advocate will face situations where it appears that a child’s conduct or behavior impairs
the child’s ability to learn and progress educationally. Children may be facing school discipline
from academic penalties, suspension to expulsion or placement change. These subjects, behavior
and discipline, are very complex and for this reason, the two subjects are treated in two separate
presentations. In this presentation, we will examine the principles of behavioral education,
support, and advocacy. Tomorrow, there will be a presentation focused on the issues of school
discipline. While each of these presentations is created to stand alone, they are also designed to
complement each other.
A Positive Understanding of Behavior
Behavior is almost always understood in negative terms. Every parent cringes to hear teachers
speak of their child in such negative terms as lazy, unmotivated, stubborn, careless, defiant,
disruptive, out-of control, etc. To often the emphasis is on how to make the child stop acting out,
stop misbehaving. Invariably schools turn to consequences designed to make the child not want
to act that way. Educators tend to have a hard, rigid view of discipline, which stresses
consequences and accountability.
Ironically the key to helping children overcome behavioral problems is actually found in positive
solutions, not negative consequences. The student’s team must focus instead on the positive
behavioral supports the child needs in order to be successful in school. The child needs to feel
rewarded and successful; to feel safe and secure, emotionally and physically. The child needs a
non-distracting, comfortable environment. The child may need to develop skills in organization,
self-control and dealing with frustration.
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This is the advocate’s vital role. More than anything else the advocate must refocus the issues of
behavior from negative consequences to the positive supports. The advocate must turn the
question from how to stop the child from acting in a certain way, to how to help the child to
access his/her education. This will not be a simple task, because there is tremendous resistance
to the concept that many behaviors of children with disabilities flow directly from the disabilities
and thus should be dealt with through accommodation and positive behavior strategies. The
simple rule is – if it is not positive, it will not work.
Behavior includes all conduct affecting education
Issues of behavior are infused in every child’s education. People most often think of “bad
behavior” when one speaks of behavior. Behavior, however, encompasses a far greater scope of
conduct, both positive and negative. Educationally speaking, behavior is up there with language
and intellectual capacity, among the essential elements affecting educational progress.
Considering the subject from a positive aspect we understand that focus, curiosity, motivation,
self-control, cooperation, organization, etc. are extremely important to educational success. In
the same way, high distractibility, hyperactivity, frustration, impulsivity, disorganization, anger,
etc. are impairments to a child’s education.
Because behavior is so intertwined with education, advocates are obligated to consider
behavioral aspects in every child’s educational plan. It needs to become almost reflexive for an
advocate to consider each student’s behavioral needs when
B. Definitions of Disabled Children:
When dealing with behavioral questions, one of the issues with which the advocate must deal, is
the question as to whether or not the student is disabled. The behavioral principles discussed in
this presentation will apply whether or not the child is disabled and whether or not a disabled
child has an emotional disability. The law, however, only requires these valid interventions
when the student has a recognized disability. Establishing a disability is as important to
educational advocacy as it is to disciplinary protection. In the context of an established
disability, the advocate is able to put more effective pressure on schools to provide appropriate
accommodations and behavioral instruction.
Child with a Disability under Section 504: Some basic accommodations might
be available to a child who qualifies under §504 of the Rehabilitation Act of
1973.1 Children who are eligible under Section 504 must be accorded
behavioral/discipline procedural safeguards as well. In basic terms a child is
qualified under § 504 if the student has a physical or mental impairment, which
substantially limits one or more major life activities.
1
29 U.S.C. Chapter 16
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Child with a Disability under IDEA:2 Many children with disabilities can have
behavioral issues. Children with cognitive deficits may display frustration related
aggression, emotional outbursts and passive aggression. Disabled children can be highly
impulsive and easily led astray by peers. Autistic children can have outburst of
aggression. Any Child qualified for educational services under the Individuals with
Disabilities Education Act (IDEA) can be eligible for behavioral services and
accommodations. It is not necessary for a child to be found to have an emotional
disability in order for that student to receive such services.
Child with a Disability under IDEA: Means a child3
(i) with mental retardation, hearing impairment (including deafness), speech or language
impairments, visual impairments (including blindness). Serious emotional disturbance
(hereinafter referred to as “emotional disturbance”), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning disabilities;
(ii) who, by reason thereof, needs special education and related services.
It is beyond the scope of this presentation to study all the types and causes of behavioral
problems with disabled children. It is sufficient for our purposes here, to understand the basic
educational and behavioral principles, which will help children with disabilities, overcome their
behavioral issues.
C. Positive Behavior Management
The law relative to dealing with discipline problems in children with disabilities is built
around the concept that the application of positive behavior support principles can, in most cases,
be successful in reshaping inappropriate behaviors. Moving away from the older concepts of
rigid structure and punitive consequences, the law today requires a more modern approach.
Today schools have numerous intervention tools to help to manage and resolve behavior
disorders. As will be discussed below a new assessment procedure (functional behavior
assessment) has been devised to help educational professionals understand the behavioral
disorder and find appropriate interventions (positive behavior support plans).
Evaluations:
Although functional behavioral assessments and positive behavior support plans become legal
requirements when a child’s behavior deteriorates to the point where punitive consequences are
2
3
20 U.S.C. §1400, See also 34 C.F.R. §300
20 U.S.C. §1401 (3)(A), See also 34 C.F.R. §300.7
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putting the child’s education at risk, they can also be an excellent pro-active intervention to keep
the child from reaching that point. I have chosen to discuss positive behavior management
before looking at the discipline options, because it is my firm belief that most behavioral
disorders can be remedied successfully, thus foreclosing the need for disciplinary procedures.
It is almost humorous to watch school officials react to requests for a behavioral evaluation by a
qualified behavioral evaluator. Often a child will have been suspended due to some act of
aggression or misbehavior and the administrators are braced to stand up to the advocate/attorney,
by defending their innate right to suspend children with disabilities. They are taken completely
by surprise when the advocate agrees that the matter is very serious (not necessarily with
suspension as a tool of behavior management) and requests evaluations. It never ceases to amaze
me to watch the administrators switch course and begin to insist that the child does not have that
serious of a behavioral problem. It is a good lesson for these administrators. If a behavior is
important enough for suspension, it is important enough for behavioral evaluation.
Parents are also rather reticent about having their child evaluated for behavioral issues. They
have a natural fear that the school will use the evaluation against the child. In encouraging
parents to allow a behavioral evaluation, I point to several important considerations:
1. A child’s behavioral problems ultimately harm the child and interfere with the child’s
access to learning.
2. Behavior problems, if left unaddressed, are generally perceived and treated by school
personnel as intentional misconduct, requiring punitive measures.
3. It is true that, left to their own devices, most schools idea of behavior evaluation is a
listing of the “bad” behaviors the child engage in, with some record of frequency. This is
why it is vital that the advocate must insist upon a far more professional, informative
assessment, which also explores the function of the behavior.
4. A good positive behavior support plan can have the effect of turning the school from
reflexive punitive measures, by providing a well thought-out hierarchy of behavior
management tools.
Evaluations play two important roles in the education of children with emotional disabilities.
First, they help the school determine that the child in fact does have an emotional disability.
Then second, they may help the school to determine the function of the behavior and may point
to possible ways to remedy the problem. This second purpose is looked at in detail later under
the heading of Functional Behavior Assessment below.
Functional Behavior Assessment: Actually the law (34 CFR Sec. 104.35) does not require
a functional behavior assessment until the school is considering expulsion or suspension
beyond ten accumulated days (see below). This is such a vital evaluative tool; however, I
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make a request for this assessment as soon as I perceive a significant behavioral problem. It
is better to prevent a regrettable behavioral incident, than try to use the evaluation to defend a
behaviorally disordered child after he has committed some serious offense.
Nature of the Assessment: This evaluation examines the function of a child’s behavior.
In other words the evaluator examines the child’s behavior to determine why the child is
acting the way he/she is. This evaluation also attempts to determine if the behavior is in
fact a “manifestation” of the disability, or is a behavior, which is independent of the
disability.4
The Function of a Behavior: The concept is that behavior most often is motivated by a
perceived need in the child. The behavior serves the child in some way. If we can
determine what the behavior is doing for the child, we can successfully plan a way to deal
with the behavior. This approach focuses upon the interaction of the behavior with the
child, rather than focuses on the behavior itself. This allows for an individualized,
focused approach.
Three children may all do the same act, such as throwing their books on the floor. That
behavior may have a completely different function for each child. One child may be
attempting to avoid difficult work. Another may be seeking the attention of the teacher
or classmates. The third child may be reacting to frustration in not being understood.
If we focus upon the act, i.e. throwing books, we risk being unsuccessful in all three
cases. Even if we find a way to suppress the unwanted behavior, more than likely
another inappropriate behavior will take its place. That is because we have failed to deal
with the child’s underlying need.
Consider, instead we are able to identify the child’s underlying need (function of the
behavior). With the child who is avoiding work, we might alternate easier work, with the
difficult work; we might have some desirable reward for finishing the hard work: we
might teach the child to request help. The child seeking attention might be given more
appropriate ways to obtain the desired attention. The teacher might give the child a lot of
reinforcement and attention when he/she is on task. The third child’s frustration might be
relieved by more intensive work on his/her communication skills or monitoring the
child’s signs of frustration, with appropriate stress reducing intervention. If we are able
to satisfy the child’s legitimate needs, the behavior is extinguished because it is no longer
needed.
4
Remember that this evaluation like all evaluations can be challenged with an
independent evaluation. Often I convince the District to do one evaluation by a mutually agreed
expert.
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Positive Behavior Support Plan
Once the functional behavior assessment illuminates the functions of the target behavior,
it is possible to construct a positive behavior support plan. This plan is designed to
provide effective behavioral interventions, which will work to manage or eliminate the
objectionable behavior. By focusing upon the function (root cause) of the behavior, the
positive behavior support plan has a better chance of eliminating not only the target
behavior, but also preventing a substitute behavior from developing. While this seminar
cannot go into depth into behavior management techniques, it is possible to indicate some
basic elements of a good behavior support plan.
1. Target behaviors: A good plan should concentrate upon a limited number of target
behaviors. Usually one should attempt to work with only one to three core behaviors at
most.
a. Behavior Description: The target behavior should be described in such a way
that even someone who does not know the child would be capable of recognizing it.
b. Behavior Data: It is important to collect behavior data on antecedents,
frequency, severity, and duration of the behaviors, as well as the intervention used.
First, a baseline of the behavior must be defined, and then continual data must be kept
in order to measure progress (or lack thereof).
2. Replacement Behaviors: Instead of concentrating attention upon the objectionable
behavior, a positive behavior support plan focuses upon socially preferable, positive
replacement behaviors (behaviors to replace the objectionable behavior). For example,
the child might be taught to take “a break” from stressful, frustrating tasks, rather than to
act out aggressively.
a. Positive Reinforcers: The plan must identify reinforcers, which can be used to
positively reinforce appropriate, socially acceptable behavior.
b. Reinforcement Schedule: The plan will provide for a reinforcement schedule to
reinforce the positive behaviors
3. Prevention of target behavior: Some plan must be made, in addition to encouraging
a replacement behavior, to prevent the target behavior from occurring. This plan may
include manipulation or change of the antecedents, presentation of choices, teaching,
demand, fading, etc.
4. Occurrence of target behavior: There must also be a plan for how to react to an
occurrence of the target behavior. This might include redirection to appropriate
replacement behavior, ignoring, or consequences.
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5. Evaluative Process: There must be some way to measure the success of the plan.
This should involve goals and objectives, which are measured by the data being
collected.
D. Advocacy Strategies
While it is important to be very familiar with a child’s rights and the appropriate procedures once
a child is in trouble, it is even more important to know what the parent or advocate can do to
protect the child prior to a behavior “incident.” A pro-active stance in advance of such incidents
can go a long way toward to preventing an adversarial dispute with school officials.
1. Importance of ESE qualification: Very often parents question why they should fight for
ESE qualification for their child, especially when they do not want an ESE placement. Wouldn’t
a 504 plan be sufficient? There are a number of good non-discipline related reasons to push for
an ESE placement (e.g. greater enforceability, higher profile, etc.), but ESE placement is
essential in order to protect a child with disabilities.
It is true that a child who has not yet been qualified for ESE services can still be protected in
discipline situations, if it can be proven that the child is in fact disabled and that the disability
should have been suspected by the school system. As a practical matter, however, it is much
easier to establish ESE eligibility when there are not concurrent and intervening discipline issues.
Once school discipline is being contested, many schools will fight ESE eligibility on the grounds
that the student is just trying to “excuse” his/her behavior. It is a fact of human nature, that once
an issue becomes adversarial, individuals will harden their stance. In addition, by the time the
child’s disability has been established (observations, evaluations, staffing meetings and IEP
meetings), the child has probably already been disciplined and suffered educational loss.
Without a doubt, it is better to establish the student’s disability in advance of potential discipline
issues.
Advocacy Note: It is not unusual for children with disabilities to have behavioral issues. The
behavior (distraction, disruptive noises, hyper-activity, impulsiveness, etc.) may flow directly
from the disability itself. Other times the behavior is a result of educational neglect or
mistreatment (frustration, depression, low self-esteem) and may flow from the resulting
emotional disability (anger, lack of motivation, passive aggressive behaviors, aggression).
Sometimes where the child may not be qualified (in the school’s opinion) for ESE placement in
Learning Disability or other such disability, the child may be qualified as emotionally disabled if
the child is already exhibiting behavioral problems. Such emotional disability qualification does
not mean that the student must be placed in an ESE class, but it will provide him with important
protections.
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B. Functional Behavioral Assessments and Positive Behavior Support Plans
Although the law requires schools to do functional behavioral assessments and positive
behavior support plans once a disabled student begins to have significant behavioral issues
where the school discipline (suspensions/expulsions) threaten to add up to a change in
placement (more than 10 days in the year), there is nothing which prevents such tools to be
used at an earlier point. Personally, I do not wait until the problem becomes chronic. At the
point that teachers begin complaining about behavior or issuing consequences which
negatively affect the child (remember: damage to the child’s self-esteem can be the greatest
damage of all), I ask for a functional behavior assessment. I ask for the assessment in the
same way I would ask for any evaluation. I ask for it in writing and I require the District to
respond to me in writing. If the District refuses the request, then the parent has the right to
have a hearing officer decide the issue through due process.
As with any other evaluation, the parent has the right to an independent evaluation, if they
are not satisfied with the school’s evaluation. Although the school has the right to conduct
their evaluation in a manner satisfactory for them, the parent’s right to an independent
evaluation does give them some leverage. Very often the school argues that all they have to
do is collect some teacher’s checklists and anecdotal information in order to do the functional
behavioral assessment. Very often my warning that such an inadequate assessment will
result in a request for an independent evaluation is sufficient for the District to offer that the
assessment be done by a mutually acceptable behavioral psychologist.
Once the functional behavioral assessment has been completed, it should be the basis for the
development of a positive behavior support plan. It may be important for the parent to have
some advocacy support from an individual with experience in drafting good positive
behavior support plans. These plans can be drafted as part of the IEP or independently,
however, whenever the plans are drafted there must be a time where the teachers are involved
since they will be the one’s implementing it.5 While this presentation cannot discuss positive
behavior support plans in detail, there are a few essential elements to be aware of. Ideally,
the plan should target no more than one to two behaviors. Plans that attempt to deal with all
the behavior issues at one time are usually doomed to fail. The plan should be designed to
accent the child’s strengths, rather than his/her weaknesses.
5
I recommend a teacher/parent conference to implement the plan where all parties,
including teachers, parents and where appropriate, the student, agree to work together to make
the plan work. It is very often necessary to have follow-up conferences to review progress, make
adjustment to the plan and to bring individuals back on board if for some reason the plan is not
being followed.
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The plan should be built upon positive reinforcement for appropriate behavior, rather than
consequences for inappropriate behavior. Example: Where a child has attention deficit
disorder (ADD) and is only able to attend for 10 minutes at a time, then the child should be
rewarded when he/she has attended for at least 10 minutes. The plan should be designed to
make reasonable allowances for the child’s disability and should provide accommodations
which will relieve some of the frustration and pressure placed on the child due to his/her
disability. Example: An ADD child should be allowed a break in activity at the approximate
frequency of his attentional limits and should be give a reduction of work in accordance with
the time lost in breaks and other permitted “off-task” activities.
Although I have rarely seen “consequences” be effective in changing the behavior of a child,
schools are most often very firm advocates of “costs, consequences and punishment” as
behavior deterrents. Most efforts to eliminate such elements from a child’s behavior plan
would be strongly resisted by most schools. My suggestion is to firmly refuse any plan
which has such negative elements as the key or center of the plan, since all authorities agree
that a “positive behavior support plan” as envisioned by Congress should be built around
positive behavior management principles. At the same time it would be wise to allow the
inclusion of a graduated response a behavior problem.
Such a graduated response should range from such positive responses such as “redirection,”
“ignoring,” “visual and verbal clues,” to graduated negative consequences such as a brief
“time-out,” communication to the parents, referral to an “intervention person.” The idea is to
require school staff to have attempted each of the graduated interventions before getting to
their favorites (e.g. referral to the principal, detention, Saturday school, in-school suspension,
out of school detention, expulsion).6 Once such a plan is in place then I have a defense if the
school takes a harsh action against the student without first having gone through the required
steps.
6
Be aware that schools will often take the position that they have the right to apply the
school’s code of conduct to disabled children, without regard to the disability. I believe that the
child’s written positive behavior support plan takes precedent over such school-wide conduct
codes. Exceptions to this rule would be in the event that a disabled child is involved in issues of
weapons, alcohol or drugs at school. The IDEA, while still providing for some protections in
such circumstances, does allow for the temporary removal of the student from the regular school
setting (during a period of assessments) when involved with these types of infractions.
Drug and Alcohol Use: 20 U.S.C. 706(8)(c)(iv) - Schools may apply the same nondiscriminatory discipline against disabled students that are applied to non-disabled students and
the due process procedures at 34 CFR 104.36 shall not apply.
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2. Alternatives to Suspension & Expulsion
In reality schools have many alternatives to suspension or expulsion of a student.
Unfortunately schools often neglect these alternatives until a problem has degenerated to the
point where only the harshest consequences are seen as appropriate. It is for this reason that
parents must be extremely proactive in advocating for and insisting upon appropriate
behavior supports for their child. The sections above discussed how parents can use the
functional behavior assessment and the positive behavior support plan to prod the school into
using best practices in behavior support and management.
Where a child is already in trouble the parents then must be aware of how to advocate for
their child and how to head off what is often a “knee jerk” reaction on the part of the school.
Too often the first reaction on the part of schools is to remove or exclude the child in some
way. I have seen children seen out of class for the rest of the day for tapping their pencil,
making annoying noises, getting out of their seat, not having their homework, not working,
(the list is endless). Any intelligent educational professional has got to look at such reactions
and shake their head. Are our teachers and administrators so poorly trained and equipped
that they can find no other way to deal with behavior issues?
I believe it is very appropriate for parents to aggressively insist that all non-exclusionary
behavior techniques be tried before a child is removed from class or denied an educational
opportunity. Although schools take the position that a school has the right to suspend a child
for up to ten (10) days each year, before they have to offer certain minimal protections, I
believe that this is a miss understanding of the law. I do not believe that the law allows
indiscriminate suspensions regardless of the circumstances and merit where the school has
not attempted to resolve the behavioral issues within the best practices in education.
It is therefore up to the parents to advocate for their child (in writing) and require the school
to make all efforts necessary to deal with behavior issues in non-exclusionary ways. I have
listed some alternatives below:
a. Functional Behavior Assessment (discussed above): This evaluation should provide
some feedback as to the cause or function of the behavior and should provide
recommendations on how to eliminate the behavior. These recommendations are a
goldmine. They should give the parent the leverage to insist that these recommendations be
put into effect (before any exclusionary actions are taken against the child).
b. Positive Behavior Support Plan (Discussed above): This plan is the blueprint which will
not only provide the school staff with a plan for acceptable, effective behavior support
models, but will help to brake indiscriminate use of exclusionary tactics.
c. Alternative Interventions: Be aware that the parents cannot tie the school’s hands,
leaving them without the tools necessary to deal with inappropriate behavior. Instead of
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fighting the school’s legitimate efforts to manage the child’s behavior, the parent should be
prepared to offer effective non-exclusionary, positive behavior support suggestions. These
might range from positive reinforcement, frequent work breaks, study carrels, use of
computer, timeouts (cool-down time, rather than punishment time), privileges and loss of
privilege, verbal and visual clues or warnings, use of intervention specialist (or other person
with established rapport), etc.. The list can be very long.
d. Require FAPE at all levels of interventions: The school needs to continue to offer a free
and appropriate public education at all levels of discipline. Keeping a child in detention or
in-school suspension does not relieve the school from its obligation to provide the ESE
supports or services required by the IEP.
e. Do not allow discipline involving the denial of services: The school may not remove a
related service as a disciplinary measure (e.g. bus transportation or therapy)
f. Least Restrictive Environment: Very often schools will attempt to deal with a child’s
behavior problems by restricting the child’s educational environment. In other words, the
school will attempt to place the child in a “self-contained class,” deny inclusion, or place the
child in a center school as a way of dealing with a child’s behavior problems. They feel that
they can do this because courts have very often considered a child’s behavior when
determining the appropriateness of a student’s placement.
The key to defending against such a move on the school’s part is to challenge the school on
the grounds that they have not done all that the law requires them to do in accommodating
and serving the child’s disability related behavior. This can be a successful defense, because
it is rare that I find that the school has done the required functional behavior assessment and
drafted an effective positive behavior support plan. The change in placement (to a more
restricted environment) cannot be for the purposes of discipline, but is appropriate only when
after trying everything else, the more restricted environment is the only appropriate
placement for the child.
Before being allowed to restrict a child’s environment, the court may require the District to
provide significant behavior support services such as appropriate evaluations, behavior plan,
behavior specialists, one-on-one aides, school work and environment accommodations.
Faced with these requirements, I have often seen schools back off from efforts to restrict the
child’s environment.
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