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Positive Behavioral Intervention & Discipline
The regulations addressing discipline balance the school’s need for a safe and effective school setting while ensuring that students with disabilities continue to receive appropriate educational services when they are removed from their classroom.
The Washington Administrative Code (WAC) describes the procedures that school districts must follow. The purpose of WAC 392-172A-05140 through 392-172A-05155 is to ensure that students eligible for special education services are not improperly excluded from school for disciplinary reasons and are provided services in accordance with WAC 392-172A-05145. Each school district serving special education students shall take steps to ensure that each employee, contractor, and other agent is knowledgeable of the disciplinary procedures to be followed for students eligible for special education and students who may be deemed to be eligible for special education, and knowledgeable of the rules and procedures contained in chapter 392-400 WAC governing discipline for all students.
When behaviors are a concern to the parent or the staff, the initial and/or subsequent evaluations of the student should include assessment information surrounding those behaviors. The evaluative information regarding the student’s behavior may establish the need for including behavioral goals and/or accommodations on the IEP.
Any time an IEP team meets, including the initial IEP meeting, the district and the parents should talk about behavior if it is one of the child’s needs. New regulations in Washington State require that a Positive Behavior Intervention Plan be included on the IEP if it is needed to enable the student to receive a Free Appropriate Public Education.
Behavior plans are like tools. They can be used by the school to help the child learn better ways of behaving. Behavior plans are usually used for behaviors the child is already doing, or tends to do.
The IEP team can create a behavioral intervention plan that helps the school to:
- understand the meanings of the behaviors,
- understand what might cause the behaviors to happen, and
- understand how to respond to the behavior so the child can learn appropriate behaviors to replace those inappropriate behaviors.
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A FBA will take a close look at problem behavior(s) to determine when, where, and why the behavior(s) is occurring.
When a district uses the FBA to take a closer look at the child’s behavior, they will be trying to find an answer to the question, “What function does this behavior have for this child?”
Experts say there are only two answers to that question. All behaviors either:
- get something (attention, sensory stimulation, status, rewards, power) or
- escape or avoid something (pain, boredom, anxiety, fear, someone not liked).
A good FBA will look beyond what the behavior IS to what the behavior DOES for the child. A good FBA will:
- look at the places or situations where the behavior happens,
- look at the events that happen just before it and just after it,
- look at how the child is feeling (angry, tired, thirsty, anxious, including side-effects of medication), and
- try to find out what events, times or situations predict the behavior and will tell what happens after the behavior occurs.
A good FBA will lead to answers to two important questions:
- What causes the behavior to happen?
- What will cause the behavior to NOT happen?
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Any IEP team can address behavior. It is much better to deal with behavior issues as early as possible to prevent problems later. An IEP team can develop a positive behavioral intervention plan using the information from a FBA. A positive behavioral intervention plan does not excuse a behavior. It provides the school with a carefully thought out action plan so that when the behavior does occur, teachers and others will know how to act to decrease the behavior and teach a better alternative behavior.
An IEP team can use the information from the FBA to make a plan to teach alternative behaviors which have the same function as the problem behavior. A positive behavioral intervention plan does not simply list the consequences. A positive behavior plan provides the school with a carefully thought out plan of action, so that when the behavior does occur, the student is able to select an appropriate alternative behavior.
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The goal of a positive behavioral intervention plan is to reduce problem behaviors. Steps of a basic positive behavioral intervention plan include answering the following questions:
- What is the function (reason for) the behavior?
- What behavior do we want to teach this child to replace the problem behavior? The replacement behavior MUST have the same function for the child.
- What will the teacher (other person) do to prevent the problem behavior?
- What will the teacher (other person) do when the child exhibits the correct or alternative behavior in any situation? Re-enforcers should be positive rather than negative.
- When and how will the teacher (other person) practice teaching the replacement behavior?
A Functional Behavioral Assessment will help provide answers to these questions.
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For many children, behavior can be a part of the IEP just like any other subject area. The IEP team can use the present level of academic achievement and functional performance, annual goals, and specific services to help the child learn appropriate behaviors in the same way they can help the child learn other things.
The goal must tell:
- When? (How long until the child will reach this goal? A week? A year?)
- What needs to be happening for the child to do this behavior? (“when on the playground,” “when asked by his teacher,” etc)
- Which behavior? (“will begin to comply with the instructions,” “will step away from his peers”, etc.)
- To what specific level? (“in all small and large group settings,” “for three days in a row,” “8 out of 10 times,” etc.)
When the IEP is implemented, the child is taught the skill needed to reach each goal.
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For many children, frustration or boredom leads to behavior problems. If a child has a good IEP, which meets his or her individual needs and is helping him or her to learn and succeed, many behavior problems can be prevented. If any member of the IEP team feels that the IEP is no longer working, he or she can ask the IEP team to come back together to make changes to the IEP.
When a good IEP is matched with a good, appropriate placement for services, a child’s opportunities to learn are greatly increased. The child’s opportunities for problem behavior are often decreased. If a child has continual behavioral problems that keep the child or other children from learning, the IEP team should ask these questions:
- Is this IEP being implemented? If not, what do we need to change?
- Is this IEP working? Is it meeting this child’s special needs?
- Is this child getting all the services he or she needs to learn? If not, does the IEP team need to add or change some of the services?
- Is this child’s placement (classroom or learning situation) a good fit for the child’s needs?
- Will a FBA help the IEP team to understand the behavior and develop a good behavior plan?
The IEP team can use information from an FBA to develop a positive behavior plan. The IEP team can also talk about changing the services a child needs, changing the placement or learning situation, or changing the IEP to better meet the child’s needs.
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Children with disabilities have many protected rights. One of them is the right to participate in the least restrictive environment, learning alongside peers without disabilities, as much as possible. For many children with disabilities, the IEP team, with parental participation, will decide if it is appropriate for the child to have the same consequences for behavior as any other child in the school. Some IEP teams will put this into the IEP. Most children with disabilities are able to understand and follow the same school rules as their peers without disabilities. They have the same legal protections as every other child. Address behavior problems with the IEP team when they occur to avoid more serious problems later.
A school is responsible for keeping children and others safe, while protecting the rights of individual children. If any child is acting in a way that is dangerous for others, or for the child, it is the school’s first job to deal with the danger and keep people safe. Special education law cannot interfere with school safety.
Schools may use a variety of disciplinary actions or consequences for breaking rules. A child with a disability can receive the same consequences as other children. However schools must continue to provide services after students have been removed for more than 10 days. State law has some restrictions for all children. For example, in Washington, it is illegal to use corporal punishment to discipline a child in school. “Corporal punishment” includes punishments like paddling, or slapping. This is true for all children, not just those with disabilities.
The IEP team should talk about possible behavior problems. They should also discuss whether or not the regular consequences in the school’s or classroom’s policy have meaning for the child. Discipline alone generally will not solve the problem. It only tells the child what not to do. It does not tell the child what to do.
When a problem with behavior occurs, a good first step is to call the IEP team back together to talk about it. The IEP team can take action to prevent a repeat of the problem, using behavior planning, FBA, IEP revision, change of services, or change in placement. As always, the parents are partners in the discussion.
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The most important step for the parents and school is to think ahead. They should know the school rules. If a behavior or set of behaviors is going to be a problem, deal with it in the IEP. The IEP team should always consider positive behavioral supports, which can include the use of a behavior plan or behavioral instruction to teach the student alternate behaviors.
An IEP team can talk about patterns of behaviors that may cause problems. Some disabilities have “common” behaviors. If these are a problem, the IEP team should address them. Not every child will show every “common” behavior typical of that disability. Some children might show behaviors that are not common for the disability. It is important for the IEP team to talk about what behaviors are being noticed at home, in school, or in the community. If there are behaviors that are, or will likely become, a problem, NOW is the time to work on them. The IEP team can make a plan.
Federal and state laws say it is illegal to discriminate against a person on the basis of disability. A child with a disability cannot be disciplined more severely than a non-disabled child for breaking the same rule. If a child without a disability may be suspended for three days for breaking a rule, a child with a disability cannot be suspended for more than three days for breaking the same rule. There is no law that says a student who has a disability cannot be disciplined.
In addition, schools have the right and responsibility to report crimes to the police. To report a crime, schools do not need a parent’s permission. If it is determined there is a health or safety emergency, the school can provide records to the law enforcement.
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When a school or district suspends or expels any student, it must make sure that the removal is consistent with state laws and regulations governing discipline for all students. Our state discipline regulations are located at chapter 392-400 of the Washington Administrative Code (WAC). They address discipline, suspension, and expulsion for all public education students. Districts must have policies and procedures that describe various types of misconduct and address penalties imposed for the misconduct (WAC 392-400-235). Discipline must be consistent with the district policies and procedures. Except for emergencies, schools generally may not suspend or expel any student unless they have tried other forms of corrective action that would modify the student’s behavior (WAC 392-400-245 Short-term suspension, WAC 392-400-260 Long-term suspension, and WAC 392-400-275 Expulsion).
Definitions provided in WAC 392-400-205 describe suspension and expulsion as follows:
- A short-term suspension is a suspension for any portion of a calendar day up to and not exceeding ten consecutive school days.
- A long-term suspension is a suspension which exceeds a "short-term suspension".
- An expulsion is a denial of attendance at any single subject or class or of any full schedule of subjects or classes for an indefinite period of time.
State regulations place limits on the number of days any student may be suspended during a semester or trimester, depending on the student’s grade level. (See, for example, WAC 392-400-260)
Similar to the procedural safeguards available to special education students under IDEA, state regulations in chapter 392-400 WAC provide procedural safeguards to any student who is disciplined, suspended, or expelled. Special education students have the right to all procedural safeguards for general education and the procedural safeguards under special education which are in addition to general education. When parents are provided a hearing under general education, they often do not realize that the hearing provided for under special education is a different type of hearing. They have a right to access both hearing procedures.
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When a child is suspended, the child is removed from school or class for a certain number of days as a consequence of breaking school or classroom rules. During in-school suspensions (removals) the child is in the school building, but not attending classes. Sometimes, in-school suspension will include doing work or getting instruction without being in the classroom as usual. Schools must promptly tell the parents if the child is suspended. Many schools will do it in writing. Parents can call and ask for district policies. Parents also have the right and a need to know why their child is suspended. Parents have a right under state law to meet with someone other than the person who suspended the child to appeal the suspension.
If a child with a disability is suspended and then another problem behavior occurs, the consequence of suspension probably did not work. It is a good idea for the IEP team to meet and talk about developing a positive behavioral intervention plan to help prevent on-going problems and teach new behaviors. A FBA can help the team develop a plan. A functional behavioral assessment and the positive behavioral intervention plan may be done in one meeting, if the team has appropriately collected the necessary information to allow them to make a decision.
The school and parents, as the IEP team, can agree to a change in placement if they believe that the behaviors are due to an inappropriate placement. If the IEP team agrees to a change of placement, the team will need to change the IEP through a reevaluation process supporting the change. The information they have collected may be sufficient for the reevaluation. That decision will need to be made by the evaluation team.
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Topic What the Law Says/Means What the School Needs to Do What Parents Need to Know/Do Removals for 10 or Fewer Consecutive School Days School personnel may remove a student from his or her current placement for not more than ten consecutive school days and for separate incidents of not more than 10 consecutive school days if those separate incidents are not a change of placement.
WAC 392-172A-05145Make sure that building staff are keeping track of students’ suspensions. Have a system that will allow for coordination between building staff and administrative special education staff. When a suspension will result in a removal for more than 10 consecutive school days, protections described below need to be addressed. If the suspensions are for shorter periods, but add up to more than 10 school days, the district needs to determine whether there is a pattern of removals that result in a change of placement. Consider an IEP team meeting to address whether there are additional supports or services that will prevent the behavior that is resulting in suspensions. Your child may be removed through a suspension or expulsion for 10 consecutive school days, regardless of whether the removal is related to his or her disability.
When there are shorter removals, each one less than ten school days, but totally to more than ten school days your child may also be subject to disciplinary removals, that are not considered to be a change of placement (see below).
Keep track of suspensions. If you believe that your child is continuing to have behavior that results in suspensions, ask the IEP team to discuss the behaviors to see if the school can start implementing behavioral supports to prevent the behavior that is resulting in suspensions.Change of Placement A change of placement occurs if: - the removal is for more than 10 consecutive school days;
- the student has a series of removals that constitute a pattern because:
- the series of removals totals more than ten days;
- the behavior is similar to previous incidents; and
- factors such as the length of each removal, amount of time and proximity suggest similarity in behavior.
Any time a disciplinary removal is for more than ten consecutive school days, there is a change of placement which requires the school to proceed with special education protections. When there is a series of shorter removals, the district determines whether the series results in a change of placement. If the district determines that the series of suspensions is not a change of placement, and parents disagree, they may request a due process hearing to contest the determination. When there is a change of placement for discipline, you must provide parents with their procedural safeguards. As noted above, keep track of suspensions and the reasons behind the suspensions. If there is a series of suspensions that add up to more than ten days, the district can determine that the removals are not a change of placement.
In this case, they can also determine to what extent services are needed. You have a right to disagree with the determination that a series of removals is not a change of placement. You may ask for a hearing to resolve the issue.
When there is a change of placement, the district should notify you and provide you with a copy of the procedural safeguards notice. Information on discipline is addressed in the procedural safeguards.Manifestation Determination Meeting Within 10 school days of any decision to change the student’s placement, the school district, the parent and relevant members of the student’s IEP team must review all relevant information in the student’s file including the IEP, any teacher observations and any relevant information provided by the parents to determine if: - the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability, or
- the conduct was the direct result of the school district’s failure to implement the IEP.
Once the school is aware that the removal will be a change of placement it needs to schedule a meeting within 10 school days. The participants include relevant members of the IEP team chosen by the parent and the district. Make sure that the parent is part of the selection. At the meeting, be prepared to review information in the student’s file, information by teachers, and information provided by the parent.
If the team finds that the conduct either had a substantial relationship to the student’s disability, or if the team finds that the conduct was a direct result of the failure to implement the IEP, the conduct IS a manifestation of the student’s disability.When your child’s removal is a change of placement you will be invited to a meeting to determine whether: - your child’s conduct is due to his or her disability, or
- the district’s failure to implement the IEP.
If there are members of the IEP team who should participate, tell the district who you would like to attend. If you have information that addresses your child’s behavior, provide that information to the team.Manifestation Meeting Requirements If the student’s behavior is a manifestation of the student’s disability, the district must take steps to address deficiencies, and, conduct a functional behavioral assessment (FBA), unless it has already been conducted and implement a behavioral intervention plan. (BIP) If the student already has a BIP, review it and modify it as needed to address the behavior.
The student must also be returned to his or her placement prior to the discipline unless, the parents and district agree to a different placement, or, the student has been removed for weapons, drugs or serious bodily injury.
WAC 392-172-05145 (4)
If the student’s behavior is not a manifestation of the student’s disability, the school may apply discipline in the same manner and for the same duration as it would for a student who is not eligible for special education.
However, the student should continue to receive educational services that provide FAPE and continue to allow the student to participate in the general education curriculum so that he/she may make progress towards meeting the goals in the IEP.
In addition, if the relevant IEP team members determine it is appropriate the district may conduct a FBA and implement a BIP.
392-172A-05145If the conduct is a manifestation of the student’s disability, the student must be returned to his or her placement, unless there is an agreement with the parents to try another setting.
The school needs to review relevant data to make sure that the behavior will not recur. This can include a review and changes to the IEP. In addition the district must conduct an FBA if this has not already occurred and the district needs to implement a BIP. If both are already in place, the BIP should be reviewed and modified if needed.
It is useful to review with the team, what works and what doesn’t work. If appropriate, include the student in the discussion.
If the student’s behavior is not a manifestation of his/ her disability the student may be removed for the same amount of time a general education student would be removed. However the team must determine where and how the student will receive special education and general education services. As part of the discussion the team should decide whether it would be appropriate to conduct an FBA and implement a BIP to prevent further behavioral incidents. Make sure that the services to be provided will allow progress towards IEP goals and participation in the general education curriculum. Outline those services in an interim IEP document that is effective for the length of the removal.Share with the team, information about acts that trigger unwanted behavior. Share strategies that are successful at home. Ask questions about how the FBA will be conducted and how your input will be included. Share any concerns you have about how the IEP is being implemented. Be specific if you have examples. There may be times that you agree that it is appropriate to have your child in another setting and not return to the previous placement. If so, you may agree with the district to change your child’s placement. If this is a temporary arrangement make sure that this information is included in an IEP amendment or prior written notice.
If your child’s behavior is not a manifestation of his/ her disability you and the group will discuss how and where your child will receive services. You should ask questions about how both general and special education services will be delivered. If you think that the behavior is one that could continue, discuss whether there are strategies that could prevent the behavior, including an FBA and a BIP. If you disagree with the determination that the behavior is not a manifestation of your child’s disability, or disagree with the amount of services, you can request a due process hearing or use the other dispute resolution options available to you.Removals for Special Circumstances Schools may remove a student to an interim alternative educational setting for not more than 45 school days, if the student: - carries a weapon or possesses a weapon;
- knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substances; or
- has inflicted serious bodily injury upon another person at school, on school grounds, or to a school function.
The district must still hold a manifestation meeting and follow procedures for conducting an FBA (if it is a manifestation) when a student is removed for drugs, weapons or serious bodily injury. However, the removal for not more than 45 school days is without regard to whether the behavior was a manifestation of the student’s disability. The team discusses how the student will receive services, where the services will be delivered and how those services will allow progress towards goals and participate in general education. Outline those services in an interim IEP document that is effective for the length of the removal. Even if the team determines that the behavior was a manifestation of the student’s disability, your child may still be removed from school for not more than 45 school days. Make sure you understand how services will be delivered and how the removal will affect the student’s participation in the general education curriculum. If you disagree with the amount of services, or other team determinations, you may request a due process hearing or use the other dispute resolution options available to you. Settings/Services:
10 or Fewer Days or No Change of Placement10 School Days or Less:
A student may be suspended without services.
More Than 10 School Days and Not a Pattern of Removals:
School personal consult with the student’s teacher to determine the extent to which services are needed.The school may treat suspensions of 10 school days or less as they would for any student. If the short term removals exceed 10 days, but is not a change of placement the district and one of the student’s teachers to determine what is needed to progress towards goals in the IEP and participate in general education. Ask about the availability of homework or other services for students who receive short term suspensions. If the total number of suspensions exceeds 10 days, but is not a pattern, talk to district administration about how they will deliver services and how your child can complete assignments. Settings/Services:
Change of PlacementRemovals When There is No Manifestation of Behavior, or Removals for Special Circumstances:
The IEP team determines how the student will continue to receive educational services that provide a FAPE, to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals in the student’s IEP. The IEP team also determine the interim alternative educational setting.Part of the discussion at the manifestation meeting needs to address where the student will receive services and how those educational services will be delivered. The educational services include both special education and general education instruction. Ask questions about how both special education and general education will be delivered. District Appeals: Dangerous Behavior If a school district believes that maintaining a student in his/her current placement is substantially likely to result in injury to a student or others, the district may request a due process hearing to ask that the student be removed to another setting for not more than 45 school days. If the district believes that a student cannot be maintained in their current setting, they may request a hearing. At the hearing, the administrative law judge will order a removal to an IAES if they find that there is a substantial likelihood that maintaining the setting will result in injury to the student or others. This process may be repeated. If a district requests a due process hearing, you are provided with a copy of their hearing request. You have an opportunity to respond and participate in the hearing. Students Not Yet Eligible for Special Education A district may be deemed to have knowledge that a student was eligible for special education, if before the disciplinary action: - The parent expressed concern in writing to administrative staff or the student’s teacher that the student might need special education; or
- The parent requested an evaluation for special education services; or
- The teacher or other district personal expressed specific concerns to the director of special education or other supervisory personnel about the student’s pattern of behavior.
WAC 392-172A-05170Keep track of a follow up on any referrals or written concerns by parents, and concerns expressed by teachers regarding a student’s pattern of behavior. Follow up on these requests using referral and evaluation procedures. If the student is deemed to be eligible, the parent may assert all protections available. If the district should have known that the student would be eligible, follow the discipline procedures addressed above.
The school will not be deemed to have knowledge if the parent did not allow an evaluation of the student, or if the student was evaluated, the parent refused or revoked consent for services. In addition the district will not be deemed to have knowledge if the district evaluated the student and did not find the student eligible.
If the student is not deemed to be a student eligible for special education, and the parent requests and evaluation, that evaluation must be conducted in an expedited manner.If your child was not eligible, but you have a record of making written referrals to the district, or written concerns regarding the student’s needs, or if teachers expressed concerns to their supervisors, your child would have the same discipline protections, as a student who is already eligible for special education.
If you had refused to allow the district to evaluate your child, you refused consent for initial services, or if you revoked consent for continued services, the district will not be deemed to have knowledge that your child is eligible for special education.
If you did not previously express concerns in writing or there is no evidence that teachers or others expressed concerns, (or refused services) you may still request that the district conduct an evaluation. Your child would be disciplined like any other student, but the district would need to evaluate your child as soon as possible to determine whether your child is eligible.