Under current federal and state law, school districts MUST provide appropriate behavior-related services and supports, including detailed functional behavioral assessments and positive behavioral intervention plans when needed, whenever a student has behaviors that interfere with that student’s or another student’s learning. [Cal. Ed. Code Sec. 56520(b)(3).
If your child has behaviors which interfere with your child’s or another child’s learning, federal law requires that the IEP team consider which behavior supports and strategies and other services are needed so that your child can benefit from education in the least restrictive environment. [34 C.F.R. Sec. 300.324(a)(2), (b)(2); Cal. Ed. Code Sec. 56521.2(b).] The school district has to provide the type of assessment, plan, services or supports that your child’s IEP team determines are necessary to help your child with her behavior. Your child’s behavior should not prevent her from receiving the opportunity to benefit from education or to be educated in a less restrictive setting.
If your child has serious behaviors, such as aggressive or self-injurious behaviors, the IEP team should consider whether your child needs a Functional Behavioral Assessment (FBA) or Behavior Intervention Plan (BIP) along with considering other services or strategies to address his or her behavior needs. If your child has had a BIP 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 FBA so that the IEP team has enough information to develop a more detailed BIP.
Remember that before a student with a disability can be expelled, the district must conduct a manifestation determination meeting. If a district wishes to expel a student for a behavior that has been targeted for change under a BIP included in the student’s IEP, the IEP team would almost certainly have to find that the behavior was a manifestation of the student’s disability. Also, the district may have failed to implement the BIP called for in the IEP. Under either circumstance, expulsion would be prohibited. Therefore, you must make sure that your child’s BIP specifically addresses your child’s behaviors in a comprehensive way. This will better protect your child against a referral for expulsion for any of those behaviors.
School districts may suspend special education students for misconduct even though the behavior involved is targeted for change in the student’s BIP (subject to the suspension limitations discussed above). In recent guidance, however, the Office of Special Education and Rehabilitation Services (OSERS) stated that the IDEA does not provide school personnel with the broad authority to suspend for fewer than ten days without regard to whether the child’s IEP or BIP is properly addressing his or her behavioral needs. In other words, a series of suspensions of 10 days or fewer may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit, and that the IEP team should address the need for additional behavioral supports. [OSERS, Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education Plans, available at: https://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps–08-01-2016.pdf.]