Is Your Child’s Behavior Affecting Their Education?

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If your child’s behaviors are affecting their progress in school it is important to seek the proper support from the school district. The school district is responsible for educating your child including, assessing and identifying each student’s unique needs.

Children learn and process information in many different ways. The one size fits all approach to education is unworkable and illegal. The district has a responsibility to offer the appropriate support to help your child succeed in school.

If your child is getting suspended or removed from their classroom because of their maladaptive behaviors you should request a special education assessment including a behavior assessment from your school district. This will allow the district to evaluate your child and if necessary develop a behavior support plan (BSP) or behavior intervention plan (BIP) to address and eliminate the problem behaviors. The behavior plan must be based on positive behavior interventions thus eliminating the negative and detrimental suspensions.

Unfortunately, without parental involvement school districts will continue to negatively treat students with behavior problems even though a child’s maladaptive behavior is not always their fault. However, if and when the student is found eligible to receive special education and related services the school district will be legally bound to follow the behavior plan. Often, a student with a behavioral issue will be found eligible for services under the Emotional Disturbance (ED) or Other Health Impairment (OHI) category.

Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

Other Health Impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that –

(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

(ii) Adversely affects a child’s educational performance.

Additionally, if the district doesn’t find that your child meets the requirements to receive special education and related services he/she may still be protected under other laws, such as Section 504 of the Rehabilitation Act of 1973.

Unfortunately, getting your child assessed and eligible to receive special education services is only the first step. It is important to make sure the school district provides the appropriate supports to address your child’s unique needs.

Under California law, if a special education student exhibits a “serious behavior problem” such as behavior that is assaultive, self-injurious or other severe behaviors that interfere with learning, a Functional Analysis Assessment (FAA) is the mandatory form of assessment and must be conducted by a Behavior Intervention Case Manager (BICM).

That is, the FAA must be conducted by a person who is trained in behavior analysis with an emphasis on positive behavioral interventions.  The FAA requires data collection, not just anecdotal observation.

The primary difference between a FAA pursuant to state law and a Functional Behavior Assessment (FBA) under federal law is that the former is required when a student has a “serious behavior problem.” A serious behavior problem is defined as behavior that is assaultive, self-injurious or other severe behavior problems that are “pervasive and maladaptive for which instructional/behavioral approaches specified in student’s IEP are found to be ineffective.”

Regrettably, many school districts respond to a parent’s request for an FAA with an offer to do a Functional Behavior Assessment instead. An FBA is found in federal law and doesn’t require the assessment be provided by or supervised by a qualified behaviorist.  An FAA on the other hand requires systematic observation of the student to identify the function of the behavior engaged in by the child, its antecedents, and its consequences.

However, because an FAA must be performed by a BICM and many school districts are lacking in BICM personnel the district will offer to perform an FBA because they can send one of their school psychologists out to perform the assessment instead of having to hire a BICM.

In conclusion if your child is exhibiting behaviors that are impeding his/her learning

  1. Request a special education assessment, if your child is not currently receiving special education and related services;
  2. Request an FAA and the creation of a Behavior Intervention Plan;
  3. Request specific behavior goals be developed based on positive interventions;
  4. Request the implementation of a behavior aide, if necessary, to assist your child.

Inclusion and the Law

What is Inclusion? 

Inclusion is the term used to describe when a student receiving special education and related services is placed or “mainstreamed” into the general education classroom.

When is Inclusion/Mainstreaming required? 

Every student who receives special education and related services must be educated with non-disabled peers to the “maximum extent appropriate,” and may be removed from the regular education environment only when the nature and severity of the student’s disabilities is such that education in the general education setting with the use of supplementary aids and services “cannot be achieved satisfactorily.” (See 34 C.F.R. §300.114).

The Least Restrictive Environment

Students who receive special education and related services must be placed in the least restrictive environment (“LRE”). This requires, to the maximum extent possible, students with disabilities to be educated with their typically developing peers. What is an LRE for one student will not necessarily be the LRE for another student. Below is a list of different placement options from least to most restrictive.

  1. General Education
  2. General Education with pull outs
  3. Special day class with some inclusion/mainstreaming
  4. Special day class full day
  5. Nonpublic School
  6. Home or hospital instruction
  7. Residential treatment facility

While not every student will benefit from mainstreaming or inclusion in the general education setting, under LRE, the school district must consider all appropriate placement options and continually work towards each student’s progression into a lesser restrictive environment.

Four Part Test to Determine if Mainstreaming is Appropriate

The courts have developed four factors to consider when determining whether mainstreaming is appropriate. (See Ms. S. v. Vashon Island School Dist., 337 F.3d 1115, 1136-1137 (9th Cir. 2003); Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994)).

  1. The academic benefits of placement in a mainstream setting, with any supplementary paraprofessional and services that might be appropriate;
  2. The non-academic benefits of mainstream placement, such as language and behavior models provided by non-disabled students;
  3. The negative effects the student’s presence may have on the teacher and other students; and
  4. The cost of educating the student in a mainstream environment.

What if Inclusion/Mainstreaming is NOT Appropriate?

If a student who qualifies for special education and related services is determined that he/she cannot be educated in a general education environment, the next step is to determine if that student has been appropriately mainstreamed to the maximum extent in relation to the continuum of program options available. Alternative placement options include among others, resource specialist programs (“RSP”), special day classes (“SDC”), nonpublic schools (“NPS”), and home or hospital instruction (“HHI”).  (See Ed. Code, § 56361).

The key for the IEP team is to develop a placement that allows a student receiving special education and related services to make meaningful progress in the least restrictive environment. While Parents may want their child to be in the general education setting it is more important for the student to be able to access and benefit from his/her placement. In the end, inclusion and mainstreaming should always be considered and if the general education setting is not appropriate, goals and services need to be developed for the eventual transition into a less restrictive environment.

Do I Need a Special Education Attorney?

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If your child exhibits any of the following behaviors you will benefit from consulting with a special education attorney.

  1. academically struggling in school,
  2. taking several hours to complete homework assignments,
  3. has behaviors that impede learning or ability to access the curriculum,
  4. has an Individualized Education Program (IEP) or 504 Plan,
  5. Receives accommodations/modifications at school through Response to Intervention (RTI) or Student Study Team (SST).

Hiring a special education attorney to review your child’s educational files is the first step in understanding if any of their educational rights have been violated. It is important to remember that a school district has many competing interests other than providing your child with an appropriate education.

These include among other things, preserving its limited resources. Therefore, it is important to have a special education attorney review your child’s case to determine if the school district is providing your child with the appropriate placement and services he/she requires to access and benefit from their education. Unfortunately, school districts commonly fall short of their legal mandate.

A qualified special education attorney is a great resource in your effort to determine what your child’s educational rights are and the school district’s obligations under the law. Many special education attorneys offer a free initial consultation which allows you to inquire about your case and interview potential attorneys. However, these consultations are limited in scope and a full records review of your child’s educational file maybe necessary.

Often times it is worth spending a little money to hire an attorney to perform a complete records review and case assessment. This will provide you with a clear understanding of your rights, the district’s responsibilities, and any pending violations by the school district. It is not unusual for a records review to uncover several inadequacies in a school district’s offer and/or implementation of services.

Relying solely on the school district to develop and implement the appropriate program and services for your child is risky. It is important to get an explanation of your child’s educational rights with regards to the program your school district is proposing or providing. It is common for school districts to offer limited support services based on its own inadequate assessments.

One of the first steps a special education attorney will take is to review your child’s progress and assessments. If your child fails to meet their annual goals and/or continues to struggle this is clear evidence that the services being provided are not appropriate.

Additionally, a review of your child’s assessments allows a special education attorney to determine if the assessment meets the minimum legal standard. If the assessments are deficient it is recommended that parents request a publicly funded independent educational evaluation (IEE) in all areas of suspected deficit. Obtaining IEEs provides parents the chance to have experts independent of the school district assess their child. With this new information parents can legally challenge the school district’s offer of services and request it provide the services recommended by the independent experts.

The education of your child is too important to leave to the school district alone. Unfortunately, with the school district’s tightening budgets many legally required services are not being offered. It has been proven that early intervention is the best way to remedy a student’s deficit areas. However, without the support of independent experts and a special education attorney, many students will never receive a meaningful benefit from their education.

In conclusion, I would recommend every parent who has a child struggling in school have a special education attorney perform a case assessment to determine if your child is receiving the services they are legally entitled to.