But… Watch Out for Their References and Recommendations
In this day and age where we are inundated by literally millions of news-related, job-specific, and social-media “feeds” each day, we all know that the “Big Media Dogs” typically get the most attention.
And often, the “Big Dogs” include our federal and state governments who—at times—use their “bully pulpits” to advocate for their beliefs, programs, or “successes.”
The problem is that we sometimes cannot—or don’t have the time to—discriminate between fact and recommendation, reality and perception, truth and spin.
And so, especially in the “job-specific” domain, we are left with a dilemma of who to believe, where to turn, and what to do.
And as we all need to keep our jobs, the dilemma sometimes includes a self-protective process where we follow our governments’ leads so that we can continue to “pay the rent.”
Today’s Professional Dilemma
Today’s discussion focuses on federal law, the interpretation of federal law by the U.S. Department of Education (US DoE), confusions between federal law and US DoE programs of the same name, and the US DoE’s subtle “manipulation” of this confusion to make it appear that its programs are required by the law.
While I know I have written about this topic before, it keeps happening—just with a different “spin.”
And in my media training years ago, I learned that:
“When a public (mis)assertion is not confronted publicly, the public may believe that it is true.”
And so, there is a need to clarify and confront this issue today... as I have in the past:
Background and Context
On August 1, 2016 (less than two months ago), the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) disseminated a Dear Colleague letter.
This letter addressed the legal requirement under the federal Individuals with Disabilities Education Act (IDEA) that entitles each eligible child with a disability to a free appropriate public education (FAPE) that includes special education and related services designed to meet the child’s unique needs.
More specifically, the Dear Colleague letter references an important provision of IDEA which states that:
“In the case of a child whose behavior impedes the child’s learning or that of others, the IEP Team must consider—and, when necessary to provide FAPE, include in the IEP—the use of positive behavioral interventions and supports, and other strategies, to address that behavior” [34 CFR §§300.324(a)(2)(i) and (b)(2); and 300.320(a)(4)].
Right from the beginning, I need to emphasize that IDEA references the term “positive behavioral interventions and supports” a handful of times.
And yet, IDEA never uses this term in CAPITAL letters, and it never accompanies this term with an acronym (i.e., PBIS).
Thus, the US DoE/OSERS/OSEP-funded national Positive Behavioral Interventions and Supports (PBIS) Technical Assistance Center, and its PBIS framework are not required by IDEA, and the framework is only one of many approaches to address this part of the law.
Regardless, as I have documented in the past, the US DoE continues to singularly advocate its PBIS TA Center and framework, and it uses the confusion between the lower case term in IDEA and its UPPER CASE framework to push its approaches in schools and districts across the country.
Most critically, a study commissioned by the US DoE’s Office of Special Education Programs (OSEP) two years ago concluded that the PBIS framework has demonstrated few consistent, sustained, comprehensive, and causally-based changes in student behavior—across a significant majority of the 19,000 PBIS schools that the PBIS National TA Center says exist across the country.
This study also noted that (a) different schools are implementing different parts of the framework in different ways; (b) that the PBIS TA Center cannot say that any of the schools are implementing the framework with fidelity; (c) most schools are implementing only Tier I (and not Tier II or III activities—that focus on the most behaviorally challenging students); and (d) most of the implementation has occurred in the common areas of the schools rather than in the classrooms—where students actually spend the vast majority of their time.
The US DoE’s OSERS again uses the confusion between IDEA’s “positive behavioral interventions and supports, and its PBIS framework and TA Center to make it appear that everyone should be using the latter in order to meet the requirements of the former.
This confusion begins as many do not understand what a “Dear Colleague” letter—as a guidance document—is.
As noted on Page 1 of the August 1st Dear Colleague letter:
“(A) Significant guidance (document) is non-binding and does not create or impose new legal requirements (my emphasis added). The Department is issuing this letter to provide LEAs and other responsible public agencies with information to assist them in meeting their obligations under the IDEA and its implementing regulations.”
Analyzing the August 1st Dear Colleague Letter: The “Agreements”
Full Disclosure: I actually agree with most of the Dear Colleague letter in that students demonstrating significant behavioral challenges—whether they have a disability or not—should be receiving interventions that are based on positive behavioral interventions, supports, programs, and strategies.
In fact, as an expert witness, I just helped the parents of a student with a significant behaviorally-related disability to win a Due Process hearing because the school did not provide positive behavioral supports and services, and was instead continually suspending the student for disability-related behavior—including putting the student on homebound instruction, and placing the student in a day-treatment program that did not provide appropriate interventions.
What I do not agree with is the US DoE’s belief that its PBIS framework is the only or the best positive behavioral approach... or the US DoE's approaches that are designed to minimize educators’ attention to other, more defensible and successful approaches—actions that have created a “PBIS monopoly.”
The OSERS Dear Colleague letter is organized in five sections:
- IDEA’s procedural requirements regarding evaluations, eligibility determinations, IEPs (Individualized Educational Programs), and behavioral supports;
- IDEA’s IEP content requirements related to behavioral supports;
- Circumstances that may indicate potential denials of FAPE (Free and Appropriate Public Education) or of placement in the LRE (Least Restrictive Environment);
- Implications for short-term disciplinary removals and other exclusionary disciplinary measures;
- Conclusion, including additional information for parents and stakeholders.
Below are the essential (agreed on) facts and recommendations (remember, these are advisory only) in the Dear Colleague letter. While some of the entries below have been re-sequenced from the document, assume that most of the entries reflect direct quotes.
NOTE that I have underlined some phrases to emphasize the difference between recommendations or considerations in the law, rather than requirements or mandates.
#1.) It is incumbent upon IEP (Individualized Education Program) Teams to implement IDEA’s procedural and substantive requirements to ensure that children with disabilities receive the behavioral supports they need to enable them to advance appropriately toward attaining the annual goals specified in their IEPs and to be involved in and make progress in the general education curriculum [20 U.S.C. §§1414(d)(1)(A)(i)(IV); 1414(d)(3)(B)(i) and 1414(d)(3)(C)].
A failure to implement these procedural requirements or provide needed behavioral supports to a child with a disability could result in the child not receiving a meaningful educational benefit, and therefore constitute a denial of FAPE (a Free and Appropriate Public Education) and/or a denial of placement in the LRE (the Least Restrictive Placement).
#2.) The IDEA specifically requires IEP Teams to consider the use of positive behavioral interventions and supports, and other strategies, to address behavior for any child with a disability whose behavior impedes his or her learning or that of others [20 U.S.C. §1414(d)(3)(B)(i)].
This requirement applies to all IEP Teams, regardless of the child’s specific disability, and to the development, review, and revision of IEPs [34 CFR §300.324(a)(2) and (b)(2)].
#3.) Incidents of child misbehavior and classroom disruptions, as well as violations of a code of student conduct, may indicate that the child’s IEP needs to include appropriate behavioral supports.
To the extent a child’s behavior including its impact and consequences (e.g., violations of a code of student conduct, classroom disruptions, disciplinary removals, and other exclusionary disciplinary measures) impede the child’s learning or that of others, the IEP Team must consider when, whether, and what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure a FAPE.
If the child already has behavioral supports, upon repeated incidents of child misbehavior or classroom disruption, the IEP team should meet to consider whether the child’s behavioral supports should be changed.
Once again, a failure to make behavioral supports available throughout a continuum of placements, including in a regular education setting, could result in an inappropriately restrictive placement and constitute a denial of placement in the LRE.
[The Dear Colleague letter has sections that make it clear that these “failures” are part of the ongoing process of evaluating the efficacy of an IEP, but that these failures may need to be validated through a Due Process hearing.]
#4.) It would be appropriate for a parent to request an IEP Team meeting following disciplinary removals or changes in the child’s behavior that impede the child’s learning or that of others, as these likely indicate that the IEP, as written or implemented, may not be properly addressing the child’s behavioral needs.
#5.) Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.
In short, children are more likely to achieve when they are directly taught predictable and contextually relevant school and classroom routines and expectations, acknowledged clearly and consistently for displaying positive academic and social behavior, consistently prompted and corrected when behavior does not meet expectations, and treated by others with respect.
#6.) IEPs should contain behavioral supports supported by evidence—IDEA specifically requires that both special education and related services and supplementary aids and services be based on peer-reviewed research to the extent practicable [34 CFR §300.320(a)(4)].
Interventions and supports that could assist a child with a disability to benefit from special education may include instruction and reinforcement of school expectations, violence prevention programs, anger management groups, counseling for mental health issues, life skills training, or social skills instruction.
Appropriate supplementary aids and services could include those behavioral supports necessary to enable a child with a disability to be educated in regular classes or the setting determined to be the child’s appropriate placement in the LRE. Such behavioral supports might include meetings with a behavioral coach, social skills instruction, counselor, or other approaches.
#7.) In addition to the behavioral supports that may be provided directly to children with disabilities, program modifications or supports for school personnel, provided on behalf of the child, may also be necessary to support the child’s involvement and progress in the general education curriculum, advancement towards attaining the annual goals specified in the IEP, and participation in extracurricular and other nonacademic activities [34 CFR §§300.320(a)(4)(i) and (ii)].
Teachers must be fully informed about their specific responsibilities related to implementation of the child’s IEP, including the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP [34 CFR §300.323(d)].
Further, IDEA requires states and districts to ensure that all personnel necessary to carry out the purposes of Part B of IDEA are appropriately and adequately prepared and trained [34 CFR §§300.156 and 300.207]. This responsibility would include appropriately training teachers and other school personnel to provide required behavioral supports to children with disabilities.
Therefore, a failure to provide appropriate behavioral supports (because they are not offered or because teachers and other staff are not adequately trained to implement such supports) that results in the child not receiving a meaningful educational benefit may constitute a denial of FAPE.
#8.) IDEA authorizes school personnel to implement a short-term disciplinary removal from the current placement, such as an out-of-school suspension, for a child with a disability who violates a code of student conduct [34 CFR §300.530(b)(1)]. At the same time, such removals may indicate a need to review and revise the child’s IEP to address his or her behavioral needs.
Under 34 CFR §300.536, a series of disciplinary removals that constitute a pattern is a change in placement. A pattern of removals is a series of removals that total more than 10 school days within a school year, for behavior that is substantially similar to the child’s behavior in previous incidents that led to removals, with consideration for additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
#9.) Recent research demonstrates that disciplinary measures such as short-term removals from the current placement (e.g., suspension), or other exclusionary disciplinary measures that significantly impede the implementation of the IEP, generally do not help to reduce or eliminate reoccurrence of the misbehavior.
Examples of other exclusionary disciplinary measures include:
- A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges;
- Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school;
- Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or
- Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days).
Research also shows that suspensions from school are consistently associated with lower academic performance. As a suspended child’s education is interrupted, he or she is more likely to fall behind, to become disengaged from school, and to drop out.
#10.) In general, special education placement teams may not place a child with a disability in special classes, separate schooling, or other restrictive settings outside of the regular educational environment solely due to the child’s behavior when behavioral supports through the provision of supplementary aids and services could be provided for that child that would be effective in addressing his or her behavior in the regular education setting [14 34 CFR §§300.114-300.116].
Children with disabilities may only be removed from the regular educational environment when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [34 CFR §300.114(a)(2)(ii)].
Analyzing the August 1st Dear Colleague Letter: The “Disagreements”
As noted above, I have few disagreements with the OSERS Dear Colleague letter. Indeed, if districts and schools implemented the processes above, the most behaviorally-challenging students with disabilities would be far more successful—behaviorally and academically—than at present.
I do, however, have two major concerns with the Dear Colleague letter. These concerns are representative of inappropriate practices used by the U.S. Department of Education consistently over the past decade or more.
The first concern is the way that some US DoE documents “read” that makes it appear that actions that actually are discretionary are mandated. Indeed, only those who know the law, and/or are skilled in “close reading” know that what reads as mandated is actually discretionary.
The second concern, again, is how the US DoE cites only its preferred frameworks, approaches, programs, or initiatives—without identifying other effective approaches, and without stating that other effective approaches are available and can be used.
In the first area, the Dear Colleague letter states—early on in the document— that:
“In light of research about the detrimental impacts of disciplinary removals, including short-term disciplinary removals, the Department is issuing this guidance to clarify that schools, charter schools, and educational programs in juvenile correctional facilities must provide (my emphasis added) appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE and placement in the least restrictive environment (LRE).”
As noted earlier, while IDEA states that IEP teams must consider these approaches, and that these approaches should be used to ensure IDEA’s FAPE and LRE provisions, the way that this paragraph is written gives the impression that these approaches are always mandated, regardless of the circumstances.
In the second area, the Dear Colleague letter provides references to technical assistance documents that only reference the National PBIS Technical Assistance Center or have been written by those affiliated with that Center.
While more subtle than usual, the US DoE again is attempting (a) to advocate for its own “in-house” framework, and (b) to convey to the public that IDEA’s “positive behavioral support and intervention” requirement is met only by its Positive Behavioral Support and Intervention (PBIS) approaches.
Without clarifying the difference between IDEA’s (lower case) language and the TA Center’s (UPPER CASE) PBIS title and work and referencing others’ evidence-based work in this area, the US DoE does a disservice to those practitioners who are unaware of the differences, do not have the time to do this kind of “background check,” and may benefit from other, evidence-based approaches.
All students—especially those with disabilities and those with disabilities who exhibit significant behavioral challenges—can benefit from schools, classrooms, and models that implement evidence-based positive behavioral intervention and support approaches.
Indeed, as someone who has developed and implemented—in thousands of schools across the country over 30+ years—an evidence-based Positive Behavioral Support System (PBSS) that has been recognized by the U.S. Department of Health & Human Services’ National Registry of Evidence-based Programs and Practices, my work has demonstrated these benefits across the country.
See the following recent Blogs where I have discussed different elements of our approach:
But, the PBIS approaches and framework—despite their support from the federal government—have significant flaws that potentially harm students and render the good-faith efforts of staff and schools frustrated.
2012 technical assistance:
In the end, we need to communicate and collaborate on behalf of our students— especially those with disabilities. We need to put competition and self-interest aside. And, we need to advocate for effective practices so that we can accomplish the needed outcomes for all students.
I hope you will join me in these efforts. . . in a spirit of advocacy and assistance. And, I hope that you will think about the positive aspects of the OSER’s Dear Colleague letter.
THANK YOU for all that you do for all of your students. Your enthusiasm, dedication, and impact are truly inspiring. You are the primary reasons that I do what I do.
Let me know your thoughts. . . and how we might work together to advance our mission.