California Department of Education, Special Education Division Memorandum Date: November 8, 2007 To: Special Education Local Plan

Area and Stateoperated Programs Directors Special Education Administrators at County Offices Advisory Commission on Special Education Institutions of Higher Education Interested Individuals, Agencies and Organizations From: Mary Hudler Director, Special Education Division

Subject: Official Message from State Director of Special Education California law recognizes that "the state has continually sought to provide an appropriate and meaningful educational program in a safe and healthy environment for all children regardless of possible physical, mental, or emotionally disabling conditions" (California Education Code [EC] Section 56520[a][1]). Further, "teachers of children with special needs require training and guidance that provides positive ways for working successfully with children who have difficulties conforming to acceptable behavioral patterns in order to provide an environment in which learning can occur" (EC Section 56520[a][2]). The law also recognizes that in situations involving "unpredictable, spontaneous behavior which poses a clear and present danger of serious physical harm to the individual or others," emergency interventions may be necessary (California Code of Regulations, Title 5 [5 CCR], Section 3052[i]). However, emergency interventions are not a substitute for a systematic positive behavioral intervention plan (BIP) that is included in the student's individualized

education program (IEP) (5 CCR Sections 3052[a][1] and[4]). In particular, physical restraint or seclusion of the student may only be used in properly licensed facilities, by staff trained in emergency interventions, and only with such force and duration as reasonable and necessary under the circumstances (5 EC Section 3052[i][4][A]-[C]). Functional Assessment Analyses EC Sections 56520-56525 and 5 EC Section 3052 state that students who have disabilities that affect their behavior in school have the right to an IEP designed to bring lasting positive behavioral change (5 EC Section 3052[a]) [The right to a BIP applies equally to students placed in certified nonpublic schools by the school district responsible for providing a free appropriate public education (FAPE) based on the student's residence (EC Section 56365)]. When the IEP team determines that strategies employed in the IEP were ineffective to deal with a student's behavior, a functional analysis assessment (FAA) of the behavior is necessary (5 EC Section 3052[b]). Before conducting an FAA, parents must be given notice and parental consent to the FAA must be obtained (EC Section 56321). The FAA evaluator must be properly trained to perform the following duties: Systematic observation of the behavior, antecedents, and consequences Ecological analysis of the setting Review of records, including health and medical factors Review of the history of the behavior (5 EC Section 3052 [b][1]) The FAA evaluator shall prepare a report that includes: A description of the nature and severity of the behavior(s)

 Baseline data and an analysis of the antecedents and consequences across all appropriate settings The rate of alternative behaviors, their antecedents, and their consequences Recommendations for consideration by the IEP team (5 EC Section 3052 [b][2]) Revising the BIP Based on the FAA Whenever an IEP includes a BIP, the IEP team must be expanded to include a behavioral intervention case manager. The case manager must assist in conducting the FAA and in developing the BIP while consulting with the other team members. Case managers must have training in behavior analysis, including positive behavioral interventions, and the ability to monitor and evaluate the appropriateness and efficacy of an implemented BIP (5 EC Section 3052[a][1] and [2]). The BIP must indicate the frequency of consultation with staff and parents (5 EC Section 3001[f]). Pursuant to 5 EC Section 3001(f), the BIP must include the following items: A summary of information gathered from the FAA Objective and measurable descriptions of the targeted maladaptive behavior(s) and replacement positive behavior(s) Goals and objectives specific to the BIP A description of the behavioral interventions to be used and the circumstances for their use A schedule for recording the frequency of the use of the interventions and the frequency of the targeted and replacement behaviors, including criteria for discontinuing the use of the intervention for lack of effectiveness Criteria by which the procedure will be faded or phased-out Behavioral interventions that will be used in the home, residential facility, work site, or other noneducational

settings Dates for periodic review of the program's efficacy According to the timelines specified in the plan, the team reviews the BIP. In most cases the teacher, instructional assistant, parent, and others implement the BIP. Training, including the specific needs of the BIP and appropriate recordkeeping and documentation, occurs before implementation. Emergency Interventions Even in cases when the IEP team has developed a responsible BIP, emergency intervention may be necessary "to control unpredictable, spontaneous behavior which poses clear and present danger of serious physical harm to the individual or others and which cannot be immediately prevented by a response less restrictive than the temporary application of a technique used to contain the behavior" (5 EC Section 3052[i]). However, pursuant to 5 EC Section 3052(l), emergency intervention may not include any of the following: Any intervention designed to, or likely to, cause physical pain Noxious, toxic, or otherwise unpleasant sprays, mists, or substances in proximity to the individual's face Denial of adequate sleep, food, water, shelter, bedding, physical comfort, or access to bathroom facilities Verbal abuse, ridicule, humiliation, or other procedures expected to cause excessive emotional trauma Physical restraint by a device, material, or object that simultaneously immobilizes all four extremities, including prone containment or similar techniques, unless the restraint is used by personnel who are trained in the technique, and it is used only as an emergency intervention Locked seclusion, unless it is in a facility otherwise licensed or permitted by state law to use a locked room

 Any intervention that leaves a student without adequate supervision Any intervention that deprives the student of one or more of the senses Emergency interventions, particularly those employing physical restraint or seclusion, should be used only by properly trained personnel and only with the degree of force and for the amount of time that is reasonable and necessary to control the emergency. When the emergency has ended, school staff must return to the systematic BIP and positive interventions stated in the IEP. Whenever an emergency intervention is used, the parents must be notified within one school day and a "behavioral emergency report" must immediately be prepared that includes the information listed in 5 EC Section 3052(i)(5). If you have any questions regarding this subject, please contact Allison Smith at asmith@cde.ca.gov or 916-3273698.
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