Chapter 15: Information on the Rights of Students with Behavioral Needs and Students Who are Bullied

(15.1) My child has ongoing behavior problems. Does the district have any responsibility to address those problems?

Yes. If your child has behaviors which interfere with your child's or another child's learning, federal law requires that the IEP team must consider which behavior supports, strategies, and other services are needed so that your child can benefit from education in the least restrictive environment (LRE). [34 C.F.R. Sec. 300.324(a)(2),(b)(2).] If you have concerns about your child’s behavior in school, write a letter to your child’s school asking that the school district assess your child’s behavior and informing them of their duty to have goals and services related to your child’s behavioral needs in her IEP.

The school district has a legal responsibility to identify and provide the type of assessment, educational plan, and services or supports that your child's IEP team determines are necessary to help your child with her behavior in school. These services and supports are provided so your child can benefit from education and not have to move to a more restrictive setting, such as a special day class or day treatment program.

Your child’s IEP should include a statement of the special education and related services and supplementary aids, and services to be provided to your child. This includes a statement of measurable annual behavior goals designed to address your child's behavior needs. [34 C.F.R. Sec. 300.320(a)(2),(4).] If behavior is getting in the way of your child learning or remaining in a regular classroom or less restrictive setting, her IEP should contain a statement of the behavioral support services she needs.  [Cal. Ed. Code Sec. 56364.2.] This statement of services is called a behavioral support plan (BSP) and can include the behavioral management techniques, necessary staffing, and other support services needed to implement your child’s behavioral goals.

If your child's school agrees that your child has behavior needs and the IEP does not include supports or strategies to address the behavior and/or does not state goals related to your child's behavior, the school may be denying your child a free, appropriate, public education (FAPE). You could consider filing a compliance complaint with the California Department of Education (CDE). However, you may also consider filing a due process hearing request. See Chapter 6, Information on Due Process/Compliance Procedures.

If your child's IEP contains services, supports or strategies to address these behavioral needs but they have been ineffective, your district should call for an IEP to discuss different or additional behavioral services that will be effective. [Cal. Ed. Code Sec. 56343(b).] However, you can request an IEP Review yourself to address your child’s lack of progress. [Cal. Ed. Code Sec. 56343.5.]

(15.2) Are school districts required to conduct a functional analysis assessment (FAA) and develop a positive behavior intervention plan (PBIP)?

In July of 2013, the California Legislature repealed a law known as the Hughes Bill, a set of laws and regulations requiring school districts to take specific steps to address the needs of special education students with behavior problems. The Hughes Bill required school districts to provide additional services including a detailed and comprehensive assessment called a functional analysis assessment (FAA), and a positive behavior intervention plan (PBIP) also called (BIP) when a child displayed serious, dangerous behaviors.

These services are no longer automatically required as described in the previous law, but behavioral assessments and positive behavioral interventions are still required as part of an IEP. [34 C.F.R. Sec. 300.324(a)(2)(i); Cal. Ed. Code Sec. 56341.1(b)(1).] If your child’s behavioral issues are significant, the IEP team should still consider whether your child would benefit from a detailed assessment such as FAA and PBIP. If your child has had a behavior support plan (BSP) that has not been effective in addressing your child's challenging behavior, you should point this out to the IEP team and request that your child receive a detailed functional behavioral assessment (FBA), such as FAA,  so that the IEP team has enough information to develop a more detailed PBIP.

(15.3) How do I get a behavioral assessment and what services are available to address my child’s behavioral needs?

If your child has serious behaviors (such as elopement, fights, disrupting class or hurting herself) that interfere with her learning or another child's ability to learn or have caused her placement in a regular classroom or less restrictive educational setting to be at risk, you should make a written request for a behavioral assessment and IEP meeting to determine which assessments, supports, and services your child needs to address her behavior in a positive way. Services that the IEP team should consider should include a BSP, a detailed FBA, and if appropriate, a PBIP, a one-to-one behavioral aide, parent and/or teacher training and consultation with a behavior specialist, counseling, social skills, anger management, and/or other services and strategies that you believe your child needs.

Before the IEP meeting, you may want to make a written request for an FBA, especially if the school has developed a BSP or used other behavioral strategies that have not worked to improve your child's challenging behavior. This assessment should be designed to obtain detailed information about your child's behavior (such as a detailed description of the behavior, how often it happens, how long it lasts, where it happens, what interrupts the behavior, and what happens just before and after your child engages in the challenging behavior), and information on your child's learning environments to help the IEP team determine why your child is engaging in the challenging behavior and what can be done about it.

The school has 60 days from when you sign an assessment plan that includes an FBA to perform the assessment, hold an IEP meeting to discuss the results of the assessment and determine what services, supports, and other positive behavior strategies your child needs. [Cal. Ed. Code Sec. 56344(a)]

If the school district conducts an FBA of your child but you do not think the assessment is helpful in determining what kinds of behavioral supports or services your child needs, or you disagree with the school district's assessment for other reasons, you may request an independent educational evaluation (IEE) at public expense. [34 C.F.R. Sec. 300.502; Cal. Ed. Code Sec. 56329(b).] See Chapter 2, Information on Evaluations/Assessments.

You should make this request in writing to the school district. Explain the specific parts of the assessment or the methods used to conduct the assessment with which you disagree. If you make a request for an IEE, the school district is required by law to either agree to pay for this assessment or file for a due process hearing to show that the district's assessment is "appropriate". [34 C.F.R. Sec. 300.502; Cal. Ed. Code Sec. 56329(b).]

(15.4) When can a school district use an emergency behavioral intervention such as restraint or seclusion on my child?

School districts can only use emergency interventions when:

1. Your child engages in unpredictable, spontaneous behavior;
2.  The behavior presents a danger of serious physical harm to student or others; and
3. The dangerous behavior cannot be immediately prevented by a less restrictive response than the emergency behavior intervention.
   [Cal. Ed. Code Sec. 56521.1(a).]

School districts must never substitute the use of emergency behavior interventions for systemic positive behavioral interventions. [Cal. Ed. Code Sec. 56521.1(b).] The school can use an emergency behavior intervention such as physical restraint on your child only as long as needed to control the dangerous behavior and only use the amount of force that is reasonable and necessary under the circumstances. [Cal. Ed. Code Sec. 56521.1(b)(c).]

(15.5) Are school districts prohibited from using any type of emergency behavioral interventions?

School districts are prohibited from using types of interventions which are harmful to a student's health or welfare such as interventions which likely cause pain, which deny a student adequate sleep, food, water, shelter, bedding, physical comfort, or access to bathroom facilities; or which are likely to subject your child to verbal abuse, ridicule or humiliation; or which can be expected to cause your child excessive emotional trauma. [Cal. Ed. Code Sec. 56521.1(d).]

If you believe that your child's school is using one of the prohibited types of interventions on your child such as repeatedly using restraint, seclusion, or other similar interventions or calling the police without providing your child with an individualized positive behavior support, you should consider:

1. Filing a complaint with the California Department of Education (CDE); or
2. Contacting an advocate or special education attorney for assistance.

(15.6) If a school district uses emergency behavior intervention such as physical restraint on my child, what must the school district do and what must I do?

If the school uses emergency behavior interventions on your child, school districts must notify you of this within one school day. [Cal. Ed. Code Sec. 56521.1(e).] The school district should also fill out a behavioral emergency report with information about the events leading up to the use of the emergency behavior intervention and describe the use of the intervention. The district must place this in your child's school file. [Cal. Ed. Code Sec. 56521.1(e).] The district is not required to give you a copy of this report unless you request it. You should make a written request for this report if you learn that an emergency behavior intervention was used on your child.

If your child does not have a PBIP (also called BIP), the school district must schedule an IEP meeting within two days of the emergency intervention to determine whether an FBA is needed and to determine whether your child needs an emergency behavior plan while the assessment is being done. [Cal. Ed. Code Sec. 56521.1(g).] If your child already has a PBIP or BIP, the district must schedule an IEP meeting to review and revise this plan if the school used an emergency behavior intervention on your child because your child has engaged in behavior not covered in the plan or your child's plan has not been effective in addressing the behavior. [Cal. Ed. Code Sec. 56521.1(h).]

If you are informed that your child's school used an emergency behavior intervention on your child such as restraint or seclusion, you should remind the school district of their obligation to schedule an IEP meeting to develop a new or modified BSP for your child. If the school district does not do this, we recommend that you file a compliance complaint. You can also make a written request for an IEP Review to address the use of an emergency behavior intervention. The district must hold an IEP meeting within 30 days from the date that your school district receives your written request.

(15.7) Where else can I look for guidance on a school’s duties to provide behavioral services?

The California Department of Education (CDE) has published a detailed question and answer memo that addresses your school district’s requirements related to providing behavioral assessments and services. It is available online at: http://www.cde.ca.gov/sp/se/ac/bipleafaq.asp.

(15.8) My child is accused of bullying other children at school. What should her school do?

It is always a good idea to question an allegation that a child with a disability is bullying her peers. A central component of bullying is an imbalance of power between the perpetrator and the recipient of the bullying behavior in favor of the perpetrator. Children with disabilities do not typically possess a real or perceived position of power over other children. The behavior that is described as bullying may be a sign of an underlying and unaddressed disability-related need. Thus, a child’s aggression or harming behavior should, at a minimum, trigger the inquiry into a potential unidentified disability or a failure to incorporate the right program and services in the child’s IEP.

If your child has not yet been evaluated for special education eligibility, her offending behaviors, subsequent suspensions and other disciplinary actions, should be sufficient for her school to suspect that she may be eligible for services, triggering the obligation to conduct comprehensive evaluations in all areas of suspected disability. [Torrence Sch. Dist. v. E.M. 51 IDELR 11 (C.D. Cal, 2008).]

If your child already has an IEP, the ongoing maladaptive behaviors may indicate that her needs were either not properly assessed in the past or she is experiencing new needs as a result of a change in her circumstances. In either case, district must conduct an assessment to identify your child’s behavioral needs in order to address behaviors such as peer conflicts, aggression, defiance, frustration, anxiety or task-avoidance. An IEP meeting must be held to amend her IEP, based on this assessment of her needs. [34 C.F.R. Sec. 300.303(a).] Even if current available information from prior assessments and observations is sufficient, and no need for re-evaluation exists, the district must still convene a new IEP meeting to review the child’s existing program and adjust the type, amount, frequency and location of services aimed at meeting the child’s underlying social and emotional needs. [Dear Colleagues Letter, 61 IDELR 263 (OSERS/OSEP 2013).]

When a child’s aggressive behaviors result in disciplinary removals that would constitute a significant change in placement, (i.e. child is removed from her placement for 10 consecutive days or more, or when there is a pattern of removals that would constitute a change in placement because of the number or proximity of the removals), then the school must conduct a manifestation determination review (MDR) to determine the relationship between the conduct and the child’s behavior. [34 C.F.R. Sec. 300.530(e)(1).] For a child eligible under Section 504, district must also conduct a re-evaluation before making such a significant change in placement. [34 C.F.R. Sec. 100.35.] See Chapter 8, Information on Discipline of Students with Disabilities.

(15.9) How do I know if my child is being bullied?

You may be able to tell by the details of the treatment to which she is being subjected or the impact on her. A behavior goes beyond teasing between friends and becomes illegal bullying when the following are present:

1. There is a relationship between the bully and your child;
2. The balance of power in this relationship is in favor of the bully. This imbalance may be real such as the relationship between a teacher and a student, or it is perceived such as when your child sees the bully as having more power;
3. The bullying behavior happens, or can happen, more than once.

Bullying includes a broad range of behaviors from obvious and blatant to covert and subtle. It can involve physical acts, but it may also be verbal such as threats; emotional, such as withdrawing attention; and social, such as excluding someone from an activity or destroying someone’s reputation. Increasingly, bullying is taking place in the form of cyber-bullying on cell phones, through emails or social media, and can include offensive text messages, rumors posted on social media or fake online profiles. [Dear Colleagues Letter, 61 IDELR 263 (OSERS/OSEP 2013).]

The child who is bullied is likely to show the impact in a variety of ways including:

1. Lower academic achievement and aspirations;
2. Higher truancy rates;
3. Feelings of alienation from school;
4. Poor relationships with peers;
5. Loneliness; or
6. Depression.

If your child is showing these symptoms, you should look into what is going on between her and other students or staff in school. Some children, due to different factors including their disability, may not be able to report the aggression they are experiencing. It is critical that you and the school staff assist in alerting the school of any incident that may raise the suspicion of bullying.

If your child has been bullied or harassed at school, you may also file a complaint with the California Department of Education (CDE) against your school district. See Chapter 6, Information on Due Process/Compliance Procedures.]

(15.10) If my child is bullied, should an IEP team reconsider her needs and services, even if she was not bullied because of her disability?

Yes. Whether or not the bullying is related to a student's disability, it can result in the student not receiving a meaningful educational benefit from her IEP.  School district is obligated to address the impact on her at school. District must convene her IEP team meeting to determine whether, as a result of the effects of the bullying, the student's needs have changed such that the IEP is no longer designed to provide meaningful educational benefit. If that is the case, the IEP team must determine to what extent additional or different special education or related services are needed to address the student's individual needs; and revise the IEP accordingly. [Dear Colleagues Letter, 61 IDELR 263 (OSERS/OSEP 2013), Dear Colleagues Letter, 111 LRP 45106 (OCR/OSERS 07/25/00)  and Dear Colleagues Letter, Responding to Bullying of Students with Disabilities, 64 IDELR 215 (OCR 2014).]

(15.11) Can my child be moved to a different school to prevent future bullying?

Yes. If the current school is no longer appropriate due to bullying, you and the rest of her IEP team can decide together to change her educational placement. The school cannot move your child to a new placement without your written consent.  If you do not consent, your child should stay in the placement specified on her IEP. In addition, if the school is proposing to move the student to a placement that is more restrictive than her current school, that may violate the least restrictive environment (LRE) mandate. She should not be forced to receive her instruction and services in a different and especially a more restrictive setting unless the IEP team, of which you are a member, decides that such a change is necessary and appropriate. Similarly, the school cannot unilaterally alter other aspects of her services such as the frequency, duration and intensity of her services. [Dear Colleagues Letter, 61 IDELR 263, (OSERS/OSEP 2013).]  See Chapter 7, Information on Least Restrictive Environment (LRE).

(15.12) Does Section 504 protect my child against bullying at school?

Yes. Section 504 of the Rehabilitation Act as well as the Americans with Disabilities Act (ADA) prohibit any intimidation or abusive behavior related to a student’s disability that creates a hostile environment for the student and causes her to lose education, services, and activities for which she is eligible. To be illegal, the behavior must be severe, persistent, and pervasive. However, a one-time conduct can violate the law if it is very severe. [Dear Colleagues Letter, 111 LRP 45106 (OCR 07/25/00).]

Harassment can occur in different forms – verbal; nonverbal, and physically threatening, harmful and humiliating, and can be present even if the student does not show a tangible effect. Disparaging comments, obstructing accessible paths, inappropriate physical restraints and denial of school activities such as field trips and school assembly could all be unlawful harassment if they meet the criteria. [Dear Colleagues Letter, 55 IDELR 174 (OCR 2010).]

Once the school or the educational agency knows or should know about the harassment/bullying, it must take the following actions promptly:

1. Investigate the incident or allegation;
2. Act to remedy the impact of the harassment on the student, which may include compensatory services for denial of a free and appropriate public education;
3. Ensure the behavior will not recur; which can include providing counseling to the student who was harassed and the person(s) responsible for the harassment;
4. Ensure that the hostile environment is ended by taking schoolwide or districtwide actions such as establishing and disseminating an anti-harassment policy, creating an effective grievance process, training to staff and students and a monitoring protocol. [Los Angeles (CA) Unified Sch. Dist., (OCR 2007).]

If your child has been bullied due to her disability, you may file a complaint with the Office for Civil Rights (OCR) at the U.S. Department of Education against your school district. See Chapter 16 Information on Section 504 and Disability-Based Discrimination.