Legal and Ethical Considerations Getting Started Readings General Considerations Considerations Prior to Special Education Services Considerations as Part of Special Education Services Summary Intervention Options Exempted Procedures Positive Behavioral Support or Other Standard Practices Disciplinary Procedures Regulated Procedures: Conditional Procedures Prohibited Procedures
READINGS FOR LEGAL AND ETHICAL CONSIDERATIONS Legal and Ethical Issues Lecture by Mary McEvoy, Ph.D. Further Readings on this Topic (not included in these materials): Smith, T.E.C. (2005). IDEA 2004: Another round in the reauthorization process. Remedial and Special Education, 26, 314-319. OSEP Center on Positive Behavioral Interventions and Supports (2000). Applying positive behavior support and functional behavioral assessment in schools. Journal of Positive Behavior Interventions, 2, 131-143. Division of Early Childhood (DEC; 1998, April). Division for Early Childhood (DEC) position statement on interventions for challenging behavior. Denver, CO.
LEGAL AND ETHICAL CONSIDERATIONS Co-Authored by LeAnne Johnson and Shelley Neilsen-Gatti When addressing challenging behaviors, interventionists must consider options in the context of both legal and ethical requirements. Legal requirements are mandated by federal and state law. The final Part B regulations of the federal law, known as the Individuals with Disabilities Education Improvement Act (IDEA), were recently published (announced by the Secretary of Education on 8/3/2006). Both recent and previous changes in the discipline provisions of the act reflect serious concerns of school administrators and teachers to preserve school safety and order, while helping schools respond appropriately to a child s behavior by promoting the use of appropriate behavior interventions and increasing the likelihood of success in school. Consequently, the legal requirements are also considered to be best practices. Important to note in the current law is the strong emphasis on the use of proactive procedures that are meant to prevent challenging behavior and build new skills rather than focusing on the use of reactive strategies that focus only on reduction or elimination of challenging behaviors as they occur.
CONSIDERATIONS PRIOR TO SPECIAL EDUCATION SERVICES Educators are legally and ethically bound to identify young children who need educational services. Unfortunately, for many young children who engage in challenging behaviors, in the absence of other severe disabilities, their needs are often not identified as warranting services until they are of school age and an impact on educational performance is observed. The need for focused prevention efforts independent of children qualifying for special education services is clear. When a child s needs warrant consideration of special education services, parental consent must be given to begin the formal evaluation process. When a special education evaluation is conducted to address challenging behaviors, the intent of the federal law is to guide the information gathering process so that eligibility for appropriate behavioral interventions and services can be identified and strategies implemented as soon as the evaluation is complete and parental consent for service is obtained. Specific procedures and requirements for evaluations and eligibility determinations vary by state. For example: While the federal law only requires a functional behavioral assessment to be conducted for students suspected of having a disability or already receiving special education services who become involved in disciplinary actions, Minnesota State Rules require that a functional behavioral assessment be conducted, as part of the initial evaluation for school aged children when an emotional or behavioral disorder is being evaluated (Minnesota Rule 3525.1329) and/or whenever an Individualized Education Planning (IEP) Team or Individualized Family Services Planning (IFSP) Team is considering a conditional intervention procedures that is discussed later in this topic. Consult your state s department of education for more specific information about the rules and procedures required in your area
CONSIDERATIONS AS PART OF SPECIAL EDUCATION SERVICES Intervention Options What is meant by Exempted and Regulated procedures? These are terms define categories of behavioral interventions that are addressed in Educational Law. The outline below will differentiate different classes of procedures and procedural requirements that accompany each.
Exempted Procedures: Legal Requirements Related to the use of a Positive Behavioral Support Strategy or Other Standard Practices Exempted procedures are planned instructional techniques and intervention procedures that are common practice in regular education settings. Examples of these types of strategies and practices include: Rearranging aspects of the environment or curriculum presentation Teaching communicative alternatives Antecedent-focused interventions (e.g. Pre-specifying Reinforcers, Using Distracters, Choice Making) Physical assistance/guidance where no physical resistance is offered by the child Token economies or point systems Temporary interruptions to instruction when student is asked to leave for brief periods (time out) IDEA states that if a child is engaging in challenging behavior that interferes with his or her learning or the learning of others, the IEP team must consider how positive behavioral intervention strategies should be used to address the child s needs. Requirements for Functional Behavioral Assessment (FBA): Current federal and state law does not require conducting a functional behavioral assessment for the purpose of intervention planning when done independent of disciplinary procedures. However... Best Practice Note: The language of the law does encourage use of functional assessment strategies outside the context of discipline. Assessment of challenging behavior using functional behavioral assessment strategies is integral to the effective identification and implementation of positive behavioral interventions. See the topic Functional Behavioral Assessment in the module Functional Behavioral Assessment and Other Tools for Making Evidence-Based Decisions of this series for specific information about conducting an FBA.
Exempted Procedures: Legal Requirements Related to the use of a Positive Behavioral Support Strategy or Other Standard Practices (continued) Requirements for Behavior Intervention Plans: Current federal and state law does not require the development of a Behavior Intervention Plan (BIP) when disciplinary actions have not been taken and conditional procedures are not being used. However Best Practice Note: Behavior Intervention Plans provide a way to clearly communicate and monitor an action plan and sequence of procedures that are to be implemented by all interventionists. The development of such a plan should be considered whenever systematic and coordinated efforts are needed. Minnesota Rule: The objective of any behavioral intervention must be that pupils acquire appropriate behaviors and skills. It is critical that behavioral intervention programs focus on skill acquisition rather than merely behavior reduction or elimination (Minnesota Rule 3525.0850). See the topic Bridging Assessment and Intervention: Developing a Positive Behavioral Support Plan in the module Putting it All Together of this series for specific information regarding the development of Behavior Intervention Plans.
Exempted Procedures: What are the Legal Requirements Related to the use of a Positive Behavioral Support Strategy or Other Standard Practices (continued) When ECSE providers serve young children with significant behavior problems, the team must consider and include positive behavioral supports in the IEP. These supports include: Conducting a FBA Writing goals and objectives to address the behavior Including a behavior intervention plan as part of the IEP Developing measurable evaluation criteria to assess progress towards goals ECSE providers must also consider their ethical obligations. Ethical obligations related to addressing challenging behaviors include: Doing no harm Involving the family in the planning, implementation, and evaluation of all positive behavior support strategies Carefully monitoring and evaluating all assessment and intervention procedures Considering contextual fit - Are the strategies selected maximally beneficial to the child? - Are the strategies able to be implemented by those in social contact with the child? - Are the strategies developmentally appropriate for the child?
Exempted Procedures: Legal Requirements Related to the use of Disciplinary Procedures Disciplinary procedures that require special consideration by the IEP are those procedures identified by the school district in response to serious rule violations. Examples of disciplinary procedures include: Removal to an alternative placement Suspension Expulsion Children with disabilities are subject to the same disciplinary procedures as children without disabilities unless the IEP team determines that the child s behavior is a manifestation of the child s disability and these procedures are not appropriate. Federal as well as State laws provide specific requirements when disciplinary procedures are applied in a way that constitutes a change of placement. There are three situations that involve a change of placement: Most frequently for young children, a change of placement occurs when a child is removed to a more restrictive placement that contains additional resources to meet the child s needs. In this situation, a change of placement is initiated because the child s needs exceed the program s capabilities. In other situations, a change of placement occurs when a child has been suspended for brief amounts of time, cumulating to 10 school days within a school year. On other occasions, a change of placement occurs when a child has been suspended or expelled from a program for 5 or more consecutive school days. This most often occurs as a result of having serious weapons, assault or illicit chemical offenses.
A Functional Behavioral Assessment is required by law any time actions are taken that constitute a change of placement. More specifically, The IEP team must meet within 10 school days of the student's removal to plan the FBA and obtain parental consent for the assessment The FBA must be completed within 30 school days after permission is granted If an FBA was completed before the change of placement, it must be reviewed within 10 school days of the change and new information gathered if necessary See the topic Functional Behavioral Assessment of the module Functional Behavioral Assessment and Other Tools for Making Evidence-Based Decisions of this series for specific information about conducting an FBA. Requirements for Behavior Intervention Plans: A BIP is required by law any time actions are taken that constitute a change of placement. More specifically, As soon as practicable after the FBA is completed, the IEP team must meet to develop a BIP and begin to implement it If a BIP already exists, it must be reviewed within 10 school days of the change and modified as necessary. For situations in which the change of placement resulted from behaviors that could result in serious harm to the child or others, the IEP team should also consider if inclusion of a conditional procedure plan is warranted. See the topic Bridging Assessment and Intervention: Developing a Positivie Behavioral Support Plan in the module Putting it All Together of this series for specific information regarding the development of Behavior Intervention Plans. What does this mean for early childhood special educators? While suspension is not a common practice in early childhood, removal from the classroom does happen and this is applicable to this mandate. Removal is considered to have occurred if the child is taken out of the room because of behavior and educational opportunities are not provided. Removal is also considered to have occurred if the team calls the parent and asks the parent to "pick up" their child. If an IEP team determines that a more restrictive placement is more appropriate due to behavior, then an FBA becomes obligatory. However, as previously stated, a FBA may be desirable even when it is not legally mandated.
Regulated Procedures: Legal Requirements Related to the use of Conditional Procedures Conditional procedures are interventions that are generally considered to be aversive, but are not prohibited. These procedures are made available to trained personnel and should only be used as a means for managing behaviors that will likely result in serious bodily harm to the child or others, will result in significant property damage, or represent an acute disturbance to the teaching/learning process. These procedures are not intended to be educative strategies and should not be used as such. They should be considered only in emergencies. There are four conditional procedures that are allowable by law. Manual restraint: physical intervention intended to hold a person immobile or limit a person s movement by using body contact as the only source of physical restraint. Note: any time an adult physically engages with a child, there is high risk of injury. Any physical intervention should be done by trained personnel. This procedure should not be considered unless severe injury or property damage are eminent. Mechanical or locked restraints: use of devices such as mittens, straps, or restraint chairs to limit a person s movement or hold a person immobile as an intervention precipitated by the person s behavior. Restraint includes the use of devices for the purpose of preventing injury with for a person who engages in self-injurious behaviors. Restraints do not apply to the use of devices to treat a person s medical needs or position a person with physical disabilities. Time-out procedures for seclusion - Time out procedures take many forms. Only time out for seclusion is considered to be a conditional behavioral intervention. Seclusionary time out involves placing a child in a specially designed isolation room or similar space. The law provides very specific guidelines related to the structure and safety of rooms used for seclusionary time out. Temporary delay or withdrawal of regularly scheduled meals or water (not to exceed 30 minutes)
By law, conditional procedures may only be used: In an emergency situation (no more than 2 times in one month, if used more frequently, a formal plan must be written and consent for use obtained). An emergency situation is defined as situations in which serious physical harm is eminent for the child or for others, significant property damage will result, or there is an acute disturbance to the teaching/learning process. -OR- When parental consent has been given for using a conditional procedure. Best Practice Note: Conditional procedures are meant to aid in the management of unsafe behaviors, not teach socially appropriate alternative behaviors. Any BIP containing a conditional procedure should contain a specific plan for implementing and monitoring positive behavior support strategies. Note: In addition a BIP and conditional behavior plan are not interchangeable documents. A BIP does not need to include a conditional behavior plan. However, if there is a conditional behavior plan, there should be a BIP that describes positive behavioral support strategies.
Regulated Procedures: Legal Requirements Related to the use of Conditional Procedures Requirements for Functional Behavioral Assessment and Behavior Intervention Plans: Though current federal law does not require that a FBA be conducted when a conditional procedure is to be used, Minnesota State Rules do require a FBA (Minnesota Rule 3525.2710 Subp.4F). The intent of the law is to ensure that while conditional procedures are being implemented, teachers also have the necessary information to properly identify and implement positive behavior support strategies. The development of a Conditional Procedure Plan is required by federal law when a team decides that regular use of a conditional procedure is warranted. In the development of the conditional procedure plan, the IEP team must: Identify the frequency and duration of target behaviors Define at least two positive behavioral interventions that will be implemented to teach and reinforce socially appropriate alternative behaviors. These procedures should be explicitly described in the behavior intervention plan. Plans for monitoring and evaluating the effectiveness of these interventions must also be identified. Document that the team has addressed any medical or health condition that may influence the child s behavior. Specifically identify the conditional procedure to be used with a detailed description of how it will be implemented, monitored, and evaluated. Use of the procedure should be based upon the child s present levels of performance, needs, and goals. Include a team member that is knowledgeable about the ethnic and cultural issues relevant to the child s behavior and education. Obtain parental consent for use of the procedure. The parent can withdraw consent at any time. Document the existence of a behavior intervention plan containing use of a conditional procedure in the child s IEP.
Regulated Procedures: Legal Requirements Related to the use of Conditional Procedures What does this mean for early childhood special educators? Use of conditional procedures should be limited to specific situations where an emergency requires the immediate interruption of the behavior to keep the child and others in the environment safe. Conditional procedures should be treated as the most intrusive and least educative option for managing behaviors within extreme situations and not as strategies for teaching appropriate behaviors. Specific plans for implementation of positive behavior support strategies must accompany any use a conditional procedure. Consideration must be given to the developmental and age appropriateness of the procedure. Each procedure is associated with specific risks. It is extremely important to consider whether the benefits outweigh the risks. For each procedure, there is also the potential for the procedure to have a reinforcing effect on the challenging behavior. For example, the child who is severely disruptive to escape task demands achieves escape when placed in seclusionary time out, or the child who is aggressive to seek attention secures attention when the aggressive behavior results in physical restraint. The importance of careful monitoring of the use of the conditional procedure and the related effects on the child s behavior cannot be overstated.
Regulated Procedures: Legal Requirements Related to the use of Prohibited Procedures The following prohibited procedures are interventions that can not be used in Minnesota in schools by school district employees, contracted personnel, or volunteers. Requiring the child to assume and maintain a specified physical position, activity, or posture that induces pain as an aversive procedure Presentation of intense sounds, lights, or other sensory stimuli as aversive Use of noxious smell, taste, substance, or spray as an aversive Denying or restricting access to equipment and devices (e.g., hearing aid, communication board), except when the child is perceived to be destroying Faradic skin shock Restricting auditory/visual sense (not to include study carrels when used as an academic intervention) Withholding regularly scheduled meals or water Denying access to toilet facilities Again, these procedures may not be used in any form in Minnesota schools.
SUMMARY Current special education law contains a strong emphasis on the use of positive and proactive procedures that are meant to prevent challenging behaviors and build new skills. This is in direct contrast to more traditional, reactive strategies that focus only on the reduction or elimination of challenging behaviors. When considering specific intervention strategies, exempted procedures that are commonplace to regular education classrooms provide a wide range of options. Many of these strategies were described in detail in previous sections of these materials. In more extreme situations, conditional procedures may be used under careful monitoring and in combination with positive behavioral support strategies.