On August 1, 2016, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued guidance emphasizing the requirement that schools provide positive behavioral supports to students with disabilities whose behaviors interfere with their learning or the learning of others, which can be found here: http://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps–08-01-2016.pdf.
The Individuals with Disabilities Education Act (“IDEA”) and its implementing regulations require school districts to develop IEPs that meet the needs, including the behavioral needs, of children with disabilities. The letter provides significant guidance for school districts to provide students with disabilities appropriate behavioral interventions and supports that are necessary to ensure they have meaningful access to their education. The guidance further clarifies that the repeated use of disciplinary actions, including short-term exclusionary measures such as out-of-school suspensions, may indicate that students with disabilities are not receiving a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) as required under IDEA.
Specifically, the letter provides guidance on how school districts should identify, develop, and implement individual and school-wide positive behavioral supports, which should be based on peer-reviewed research to the extent practicable, for students with disabilities. Some examples of behavioral supports include instruction on school expectations for student behaviors, violence prevention programs, anger management classes, counseling for mental health issues, life skills training, social skills instruction, and meetings with behavioral coaches. The guidance also notes that supports for school personnel and training on the use of positive behavioral interventions and supports may be necessary to appropriately address the behavioral needs of a particular student.
The guidance also emphasizes the negative effects, such as lower academic performance, that exclusionary discipline has on students, especially students with disabilities. Although IDEA permits school personnel to remove a student with a disability who violates a code of student conduct from his/her current placement, such removals do not reduce or eliminate reoccurrence of misbehavior. Thus, the guidance cautions school districts that the use of short-term disciplinary removals from the student’s current placement may indicate that the student’s IEP or the implementation of the IEP does not appropriately address the student’s behavioral needs, which could constitute a denial of FAPE under IDEA.
Furthermore, the guidance urges school districts to keep in mind that, in general, the IEP team may not place a student with a disability in special classes, separate schooling, or other restrictive settings outside of the regular educational environment solely due to the student’s behaviors if the student’s behavior can be effectively addressed in the regular education setting with the provision of appropriate behavioral interventions and supports. The guidance provides resource documents regarding classroom management strategies and implementation of school-wide behavioral programs and supports to assist teachers, school leaders, and administrators in creating safe and effective environments where all students are given an opportunity to positively engage in their education.