California’s Regulations for Positive Behavioral Interventions

UPDATE:  Effective July 1, 2013, the Hughes Bill, which described the FAA procedures, was repealed and replaced with AB 86, which offers fewer legal protections to students with behavioral needs.  Click here for more information about this change in the law.  The material below now only applies to those students who were eligible for an FAA and possibly a PBIP prior to July 1, 2013. These students may currently have PBIPs in their IEPs, which remain in force until their IEPs are replaced at their next annual due date. Students with claims arising within the last two years from school agencies’ failures to comply with the Hughes Bill during the portion of the statutory period in which it was still in force may still bring claims regarding those failures, in which case, the material below is still applicable.

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As part of a series of articles regarding seclusion and restraint practices involving special education students across the nation, we’re starting out with a look at the regulations already on the books in California. We’re starting with these state-specific regulations because California is one of the few states to have regulations this specific and, as one of the most populous states in the nation, these laws impact a lot of kids. So, this information can potentially benefit a lot of students by helping their parents in their efforts to achieve appropriate behavioral interventions as well as help their educators understand their obligations, thereby preventing a lot of costly litigation that takes money away from actual instructional costs.

There is federal legislation pending to address this very issue. The lack of consistency among the states as to what constitutes a lawful restraint or seclusion varies so widely that what is regarded as child abuse in one state is considered perfectly acceptable in others.

Because California has such specific language in its regulations about one aspect of positive behavioral intervention, we wanted to examine these regulations more closely. Plus, I’ve been involved in a due process case in which an 8-year-old with autism was unwittingly provoked into an outburst by well-intended special ed staff with the whole thing culminating in a DARE officer who happened to be on campus handcuffing the boy in an effort to protect him from hurting himself. That whole incident involved both restraint and seclusion with disastrous results.

So, this issue is vivid in my mind right now after having met this sweet boy and his loving family, as well as in light of other work I’ve been doing recently that has also involved inappropriate behavioral interventions in public school settings in California as well as Texas. As advanced as humanity has become, we can still be a savage species when it comes to children, particularly those with disabilities.

The thing about California’s laws relative to the minimum requirements under the federal regulations is that California’s laws are specific to serious behavior problems, interpreted by most school districts to mean violent behaviors, where the federal regulations only specifically mandate behavioral assessment when a student is at risk of expulsion for behaviors that may be related to his/her disability. In both cases, that leaves a lot of latitude for things to get way out of control before a school district takes action, particularly in school districts that are reactionary to student needs once they’ve reached crisis proportions rather than proactive in preventing these kinds of problems from arising in the first place.

What parents and education agencies often miss is that the federal regulations call for IEPs to contain whatever is necessary in order for a child to receive a FAPE, regardless of what that entails – including behavioral programming. What makes things even more confusing is all the non-public agencies that have sprung up over the last few years jockeying for contracts with local education agencies to provide behavioral services to special education students, particularly those with autism, that all widely vary with respect to quality of service. The damage done by a clueless school district that hires an agency that actually isn’t all that good can leave students and their classmates, teachers, and families scarred for life, both physically and psychologically.

For the purpose of this post, I’m going to focus specifically on portions of the language of 5 CCR Sec. 3052. This is the body of law that describes Positive Behavioral Intervention Plans (“PBIPs”) in California. I’ve had to examine it closely recently and certain aspects that don’t get enough attention became apparent, thus my decision to focus on them now.

The first thing to understand is that PBIPs require a particular type of assessment called a Functional Analysis Assessment (“FAA”). This is different from a Functional Behavioral Assessment (“FBA”) called for under the federal regulations. For more information about the distinction between these two assessment types, see our previous blog post “FAAs and FBAs – What’s the Difference.”

The California regulations, specifically 5 CCR Sec. 3001(g), require that the behavior be “serious” before a PBIP is required. A “serious behavior problem” is defined by 5 CCR Sec. 3001(ab) as, “mean[ing] the individual’s behaviors which are self-injurious, assaultive, or cause serious property damage and other severe behavior problems that are pervasive and maladaptive for which instructional/behavioral approaches specified in the student’s IEP are found to be ineffective.”

So, basically, this means that things have to become pretty awful before a PBIP is required under the law. Most school districts I’ve worked with in California will start out with behavior goals in the IEP. If those goals can’t be met, then they’ll create a Behavior Support Plan (“BSP”), which isn’t regulated at all except perhaps for local SELPA guidelines which are required under the regulations – but it remains to be seen as to the degree to which a SELPA’s guidelines are enforceable under the law.

It’s usually only after behavior goals and BSPs have failed to make a difference in a student’s behaviors that PBIPs usually get created. At that point, an FAA must be conducted and, as pointed out in our previous post about the differences between FBAs and FAAs, the way an FAA is supposed to be done is in line with the principles of Applied Behavioral Analysis (“ABA”).

After all the years of fighting for ABA services for their children, parents of special education students with behavioral challenges in California can actually get ABA-based programming for their kids if their kids’ school-related behaviors get so bad as to trigger an FAA and a PBIP. It takes picking apart 5 CCR Sec. 3052 to do it, though.

5 CCR Sec. 3052 speaks to what happens after the IEP team has had an FAA conducted and determined that a PBIP is necessary. I’m not going to talk about all of the wrangling that goes on to get to that point; the purpose of this post is to pick apart 5 CCR Sec. 3052 and presumes all the pre-PBIP wrangling has already been done.

Subsection (a)(1)-(6) talks about a number of things. In a nutshell, it requires that PBIPs and all related activities be facilitated and supervised by the student’s IEP team; be implemented by staff trained, or under the supervision of staff trained, in behavioral analysis; be based on an FAA; not be substituted with emergency behavioral interventions (i.e., restraints and seclusions); not cause pain or trauma; and, to the extent possible, be developed and implemented in a manner consistent with each of the student’s life settings. I find this last requirement of Subsection (a) rather fascinating.

There is not any more language in the regulations that adds further specificity with respect to developing and implementing a PBIP in a manner consistent with each of the student’s life settings. This presumably includes home. From the standpoint of evidence-based practices, consistency in behavioral interventions across all settings is imperative to the success of a behavior plan of any kind. If a kid is responded to differently in school than at home with respect to a target behavior, whatever interventions are being attempted to address that target behavior are greatly undermined.

We do have clients who have behaviors that include school-refusal behaviors arising from school-related phobias, Post-Traumatic Stress Disorder (“PTSD”) following incidences of bullying, social anxiety, and other disability-related issues. I had one kid on my caseload several years ago who would wait until the bus was at the end of his driveway to strip naked and run around the house while his mother tried to chase him down, knowing full well that the bus would leave without him if he wasn’t out there within a few minutes.

It was a brilliant stall tactic that was only resolved once we got County Mental Health (this was still back in the days of AB3632) to provide wrap-around services in the home in support of his IEP and changed his placement to a setting in which he felt safe. (His placement in the beginning was definitely unsafe, which is why he was avoiding it, but that’s another story.) As a necessary part of a new, decent IEP, he needed to have in-home behavioral supports as a stop-gap solution in the beginning but, eventually, the parent and school staff were trained in the same behavioral strategies so that he was consistently responded to across all settings.

We have another client right now with a significant mood disorder who would have full-core meltdowns in the mornings that could last for hours, resulting in a great deal of missed school. The behavior interfered with her learning. Thankfully, that’s not nearly as much of a problem now, but we still have issues with her eloping from campus when things don’t go her way, which is still dangerous. She can’t benefit from her IEP if she gets hit by a car or abducted while running away from school. We’re still working on this one.

In her case, in-home supports were also required to address the behaviors in the morning that prevented her from accessing her education. This language from 5 CCR Sec. 3052(a)(6) also opens the door, however, for behavioral supports in other settings than school and home. This particular child has been kicked out of community-based extra-curricular activities because of her behaviors, which has had a significant impact on her peer relations at school. She lives in a small town, word gets around, and some of the other kids in those extra-curricular activities go to her school.

While the school district will adamantly deny that it has any responsibility to provide behavioral supports in settings other than school and home, I’m now questioning this in light of 5 CCR Sec. 3052(a)(6). We have an IEP meeting for her tomorrow, so I intend to bring it up and then let the District tell us what it thinks this language means. I’ve never had a case where this specific language of the regulations was being enforced, so I have no prior experience upon which to base an interpretation of it. Since the burden is the District’s to serve her, it’s the District’s burden to accurately interpret the law, so we’ll see what they have to say when I bring it up tomorrow.

But, here’s where things really get juicy for me with respect to 5 CCR Sec. 3052: Subsections (b), (d), and particularly (f). Subsection (b) describes the FAA process and what it should entail. I won’t spell it all out here. The link to it is above and you can read it for yourself. It’s pretty specific about what the assessment should include.

Subsection (d) speaks specifically to intervention procedures. The language of Subsection (d) is also pretty detailed and, combined with other language throughout the rest of this regulation including that at Subsection (i), makes it pretty clear that using reactive strategies like restraints and seclusion should only happen when efforts to prevent and replace inappropriate behaviors have failed or when a kid spontaneously erupts into dangerous behavior that no one saw coming.

That said, it’s often the case that school site staff claim that no one saw a behavior coming when proper evaluation usually reveals that there were precursor behaviors that staff simply didn’t recognize as signs that a blow-up was going to happen if they didn’t do something to prevent it. A proper FAA will identify those precursor behaviors as well as the things in the environment that set the kid off. I once worked with an older gentleman with developmental disabilities who was the sweetest guy you’d ever meet … until you started drumming your fingers on a tabletop or counter, at which point he would try to choke you to death. Knowing that, we just didn’t drum our fingers on anything and everything was hunky-dory.

Another important thing to note – and this has come up in the aforementioned due process case that I’ve been working – is language found back up at 5 CCR Sec. 3052(a)(2) that states that positive behavioral interventions “… shall only be used to replace specified maladaptive behavior(s) with alternative acceptable behavior(s) and shall never be used solely to eliminate maladaptive behavior(s).” That’s a big deal and becomes really important when school districts go to implement PBIPs under Subsection (d).

The basis for this language is rooted in ABA, which asserts that all behaviors happen for a reason (even if we don’t understand what that reason is). People do what they do to either get something or escape/avoid something. The question is “What is a kid trying to get, escape, or avoid by engaging in a maladaptive behavior?”

And, if anyone wants to answer that question in a way that is likely to cause me to engage in precursor behaviors, they can just call the behavior “attention-seeking.” Not to go off on a tangent here, but this is an important point that people need to get. When a person engages in attention-seeking behavior, that is not the end of the line in terms of the function the behavior serves. Why do they want other people’s attention? That’s the real question. When you’re dealing with kids with disabilities, it can be to seek validation, to let someone know they wet their pants, to get help with an assignment they don’t understand, or a host of other underlying issues.

If you have to develop a replacement behavior and the only thing you’re trying to replace is the way they seek attention, you’ve missed the point. Not only do you have to give them a better, replacement behavior for appropriately getting someone’s attention when they need it, you have to give them a way to communicate the need they are trying to address by getting the other person’s attention.

Attention in and of itself doesn’t really do anything for anybody unless it results in some kind of further engagement, which is the real heart of the issue. Think about it. If someone calls your name, your immediate response is “What do you want?” or something along those lines. You expect the real request to follow the achievement of your attention. When people seek attention, it’s to something they want to share or communicate. Why this is so hard for school districts to figure out, I have no idea. It’s basic human nature.

Subsection (f) of 5 CCR Sec. 3052 is really fascinating to me, as well. This is not something I’ve specifically focused on before but it’s become important with respect to this due process case I’ve been working. The thing to understand is that 5 CCR Sec. 3052 is part of the implementing regulations of California special education law. In order to implement appropriate behavioral interventions, all subsections of 5 CCR Sec. 3052, among other regulations, have to be followed.

Subsection (f) speaks to ensuring the fidelity and efficacy of the behavioral programming being provided to a student pursuant to a PBIP. It requires that data be kept regarding the exact same data points measured during the FAA throughout the time that the PBIP is implemented in order to determine whether progress is being made or not. This is a very scientific approach rooted in ABA as well as just plain old common sense.

What kills me are PBIPs that water down the language and the data of the FAA and turn into just another vaguely written part of the IEP that is too wishy-washy to enforce. School districts do this so that there isn’t much in the IEP to hold them accountable to and/or because they have no idea how to write a proper IEP. What they think they’re getting out of by excluding necessary content only gets them into a different kind of trouble when they produce substantively deficient IEPs that are not reasonably calculated to render meaningful educational benefit as a result of their exclusions.

Subsection (f) provides specific guidelines for how school districts in California are supposed to monitor the effectiveness of PBIPs and, in all the years I’ve been working as a lay advocate and these regulations have been in place, I have never seen a school district comply with this language. It’s something I’m going to be paying much closer attention to as time goes on and hope that local education agencies in California start paying closer attention to it, too.

Click here to listen to the podcast version of this post.

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