On July 1, 2013, the Governor signed Assembly Bill (“AB”) 86, an education omnibus trailer bill which took effect immediately. AB 86 repeals the “Hughes Bill” mandate imposed on Local Educational Agencies (“LEAs”) to provide specific behavioral assessments and interventions for special education students exhibiting serious behavioral problems, beyond those required under the Individuals with Disabilities Education Act (“IDEA”).
AB 86 revises Education Code sections 56520 through 56525 to more closely resemble the requirements of the IDEA. AB 86 also provides that the Superintendent of Public Instruction must repeal regulations set forth at 3001 (d)-(g) and (ab) and 3052 of Title 5 of the California Code of Regulations. The new statutory provisions found in the Education Code are “intended to provide the clarity, definition, and specificity necessary for local educational agencies to comply with the [IDEA]” and must be implemented by those “agencies without the development by the Superintendent and adoption by the state board of any additional regulations.” However, the Superintended may monitor compliance by local education agencies and take appropriate action, including fiscal repercussions, if necessary.
Repeal of Hughes Bill FAA and PBIP Requirements
AB 86 eliminates the more stringent requirements of the Hughes Bill to conduct a functional analysis assessment (“FAA”) for special education students with serious behavioral problems, and to develop a Hughes Bill positive behavioral intervention plan (“PBIP” or “BIP”). Education Code section 56521.5 now provides that children who exhibit serious behavioral challenges must “receive timely and appropriate assessments and positive supports and interventions in accordance with the [IDEA] and its implementing regulations.” The IDEA only requires the creation of a behavioral intervention plan (“BIP”), which in California has been referred to as a Behavior Support Plan (“BSP”), while a Hughes Bill BIP has been referred to as a PBIP or BIP. AB 86 now refers to a behavior intervention plan (“BIP”) and not a BSP consistent with the IDEA. This eliminates the BIP v. BSP distinction, and a BIP is now the uniform term under both federal and state law.
If the individualized education program (“IEP”) team determines that a child’s behavior impedes his or her learning or the learning of others, then consistent with the IDEA, the IEP team requirement is to “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior, consistent with Section 1414(d)(3)(B)(i) and (d)(4) of Title 20 of the United States Code and associated federal regulations.” This could mean that instead of developing a BIP, the IEP team may conclude it is sufficient to address the student’s behavioral problems through the development of behavioral goals and behavioral interventions to support those goals.
Training Requirements of Hughes Bill Eliminated by AB 86
AB 86 eliminates the Hughes Bill mandate that only a Board Certified Behavior Analyst (“BCBA”) may conduct a behavior assessment for a student with serious behavioral problems. AB 86 also eliminates the Hughes Bill mandate that only a Behavior Intervention Case Manager (“BICM”) may implement a BIP for a student with serious behavioral problems. Under AB 86, a BCBA may, but is not required to, conduct a behavioral assessment and provide behavioral intervention services.
Changes to Existing Law Regarding Emergency Interventions
AB 86 adds Section 56521.1 to the Education Code, which provides that emergency interventions shall not be used as a substitute for a BIP, and instead may only be used to control behavior that is unpredictable and spontaneous. For an emergency intervention to be used, the behavior must pose a “clear and present danger of serious physical harm to the individual with exceptional needs, or others.” Also, before emergency interventions may be applied, the behavior must be of the kind that “cannot be immediately prevented by a response less restrictive than the temporary application of a technique used to contain the behavior.” Emergency intervention shall not be employed longer than necessary to contain the behavior. If a situation requires prolonged use of emergency intervention, staff must seek assistance from the school site administrator or a law enforcement agency.
Limitations on Locked Seclusion, Restraint and other Interventions
AB 86 leaves in place existing law that emergency intervention must not include locked seclusion, unless the facility is authorized by state law to use a locked room. Use of a device that immobilizes all four extremities also continues to be prohibited, with the exception of prone containment by trained staff. AB 86 also prohibits the use of force which goes beyond “that which is reasonable and necessary under the circumstances,” as well as the use of any intervention technique that is designed or is likely to cause pain, including electric shock. It also prohibits the use of any technique that releases “noxious, toxic, or otherwise unpleasant sprays, or substances” near an individual’s face, or denies adequate food, water, shelter, sleep, bedding, physical comfort, or access to a bathroom. Also prohibited are intervention techniques designed to subject an individual to ridicule, verbal abuse, or humiliation or techniques that are expected to cause great trauma.
Notice to Parents, Behavioral Intervention Reports and IEP Meetings
AB 86 continues the requirement created by the Hughes Bill that the parent, guardian, or residential care provider must be notified within one school day if emergency intervention is used or if there is serious property damage. A behavioral emergency report (“BER”) must be immediately completed and maintained in the student’s file. The BER must include information specified in the statute, including the names of the persons involved, where the incident occurred, and a description of the incident. The BER must be immediately forwarded to and reviewed by a designated responsible administrator. If the student does not have a BIP, the IEP case manager or other responsible IEP member must schedule an IEP team meeting within two days to review the BER and determine whether further steps are necessary, including conducting a behavioral assessment, creating a temporary behavioral intervention plan, and creating a BIP if required. If the student already has a BIP, the IEP team must review and modify the BIP if a new serious behavior has been exhibited or existing behavioral interventions have proven to be ineffective.
What This Means To You
AB 86 eliminates the dispute that often takes place between the IEP team and parents regarding whether the student’s conduct constitutes a “serious behavioral problem” such that the school district is obligated to conduct an FAA and develop a PBIP. With these changes in the law, IEP teams have flexibility, consistent with AB 86 and the IDEA, to conduct behavioral assessments and develop a BIP using qualified staff other than a BCBA. Policies published by LEAs in handbooks, training materials, and other documents should remove all previous requirements from the repealed Hughes Bill, add the BER and IEP meeting requirements of AB 86, and provide for updated training of all involved staff. Where appropriate, the IEP team should advise parents of the changes in the law that affect implementation of the student’s IEP. Reimbursement for state-mandated costs which include behavioral intervention plans developed under the Hughes Bill is available by applying for reimbursement. LEA administrators should visit the State Controller’s website at http://www.sco.ca.gov/Files-ARD-Local/Instructions/sd_1112_BIP348.pdf, for more information.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
S. Diane Beall | 925.395.2380
Marsha A. Bedwell | 916.321.4500