Recommendation: Amend the proposed regulation D.4 to state that behavior has a direct and substantial relationship to the disability if the disability significantly impairs the child’s behavioral control.

Justification: The language in the Conference Report 108-779 specifying that behavior is a manifestation if “the conduct in question was caused by, or has a direct and substantial relationship to, the child’s disability, and is not an attenuated association, such as low self-esteem” comes from Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986).  The case further explained that behavior has a direct and substantial relationship to the disability where the disability significantly impairs the child’s behavioral control.  This is an appropriate and accurate definition and Virginia should include it.

Recommendation: Amend the proposed regulation D.4. to provide that in determining whether or not a student’s behavior was a manifestation of his or her disability, the IEP team should continue to be required to ask if the IEP is appropriate and should continue to be required to look at the current placement.

Justification: These are essential elements of the manifestation determination and should not be eliminated.  Without looking at the appropriateness of the IEP or at the student’s current placement, the team may miss critical information about the student’s disability, his or her behavior, and the services and program he or she is receiving.  These all have a substantial bearing on the relationship between the student’s behavior and his or her disability and on what ought to happen to the student in the disciplinary process.

Recommendation: Amend the proposed regulation D.6.a and D.6.b to require a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) be developed to address the conduct that resulted in the child’s exclusion. If an existing FBA or BIP is over one year old, a new one must be developed and not be limited to reviewing existing data in the file.

Justification: FBAs are an important problem solving process for addressing student problem behavior.  Failure to base the intervention on the actual cause (function) often results in interventions that are ineffective and unnecessarily restrictive.  Outdated FBAs and BIPs often will fail to effectively address the child’s behavior.  Rather, a valid FBA must be conducted that identifies the significant, pupil-specific social, affective, cognitive, and/or environmental factors associated with the occurrence (and non-occurrence) of the behaviors. A review of data in the file will not accomplish this task.  Misbehavior can result in the exclusion of children from the classroom and placement in a more restrictive environment  For that reason it is important to address the cause of the conduct so that it is abated, which requires appropriate FBAs and BIPs.  Otherwise, children may be subject to further unnecessary discipline which not only results in poorer educational outcomes, but also limits the child’s opportunities for employment, vocational training, and post-secondary education.  

Recommendation: Amend the proposed regulation D.6.a to require that in reviewing and developing a BIP, the LEA consider and implement positive behavioral strategies.

Justification: FBAs and BIPs are designed to abate problem behaviors by determining the causes of the behavior and how to minimize recurrence. 

IDEA 2004, 20 U.S.C. §1414(d)(3)(B)(I) requires that positive behavioral interventions be considered in developing the IEPs of all children.  Positive behavioral interventions have sustained impact on children’s behavior and are effective in correcting it.  Positive behavioral supports have been shown to effectively reduce and prevent disruptive behavior.  Coercion and negative interventions, by contrast, are rarely effective and can be harmful and dangerous.

Recommendation: Even if the child’s conduct is not a manifestation of the child’s disability, the IEP team should be required to review positive behavioral strategies and develop an appropriate BIP after a FBA.

Justification: Regardless of whether misconduct is related to a child’s disability, FBAs and BIPs are designed to abate problem behaviors.  Since good behavior benefits all students, even when misbehavior is not a manifestation of a disability, schools should be diligent about conducting FBAs and writing appropriate BIPs.  Moreover, IDEA 2004, 20 U.S.C. § 1414(d)(3)(B)(I) requires that positive behavioral interventions be considered in developing the IEPs of all children.

Recommendation:  Amend proposed regulation D.6.c. as indicated.

c.       Return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change in placement as part of the modification of the behavioral intervention plan.  The exception to this provision is when the child has been removed for not more than 45 school days to an interim alternative educational setting for matters described in subdivision C.5.a.of this section.  In that case, school personnel may keep the student in the interim alternative educational setting until the expiration of the 45 day period. 

Justification:  Current state regulation does not allow for placement change to continue once a behavior has been identified as a manifestation of a disability. This proposed change would allow unilateral placement change even when behavior is clearly identified as a manifestation of a disability.

Recommendation: When a child is removed for a 45-day period under F.1. and F.3, the regulations should require that a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) be developed to address the conduct that resulted in the child’s exclusion, and that if there is an existing FBA or BIP that is over one year old, a new one must be developed.  If the FBA or BIP is over a year old, the FBA cannot be limited to reviewing existing data in the file.

Justification: Functional behavioral assessments are an important problem-solving process for understanding student problem behavior.  Failure to base the intervention or BIP on the actual cause (function) often results in interventions that are ineffective and unnecessarily restrictive.  Outdated FBAs and BIPs often fail to effectively address the child’s current behavior.  A valid FBA must be conducted that identifies the significant, pupil-specific social, affective, cognitive, and/or environmental factors associated with the occurrence (and non-occurrence) of the behaviors.

Recommendation: Retain the factors in current regulations, (C)(4)(b), that a hearing officer is to consider in ordering a change in placement to an interim alternative educational setting for not more than 45 school days because current placement is substantially likely to result in injury to student and others, including the appropriateness of the student’s current placement.  Consider if the LEA made reasonable efforts to minimize the risk of harm in the student’s current placement, including the use of supplementary aids and services, and determine whether the interim alternative educational setting to which the child is long-term removed meets the requirements of C.6.a.

Justification: All of these factors remain an important part of the hearing officer’s decision, even though 34 C.F.R. § 300.532 no longer contains any requirements about the standards for making the determination.  IDEA 2004 did not prohibit hearing officers from considering these factors or establish that they are not part of the analysis.  In fact, the appropriateness of the child’s current placement goes to whether the child has been provided FAPE.  The LEA is required to make reasonable efforts to keep the child in the least restrictive environment to the maximum extent possible, including the use of supplementary aids and services under IDEA 2004, 20 U.S.C. § 1412(a)(5).  This obligation continues to exist, and should be considered in determining whether a 45-day change in placement is appropriate.  See Light v. Parkway C-2 S.D., 41 F.2d 1223 (8th Cir. 1994) (interpreting IDEA to apply this consideration to disciplinary hearings even before IDEA 97’s specification that these factors should be considered).

Recommendation: H. Protection for children not yet eligible for special education and related services.

The Coalition supports retaining all factors of the current regulation VAC 20-80-68.C.8.b. Justification: Removal from the classroom poses substantial risk to children with disabilities.  The new federal regulations deem a school district knowledgeable about a child’s disability for discipline purposes, even if he/she is not yet eligible, if the parent provides notice of his/her concerns that the child needs special education and related services.  A child should not forego this protection simply because his/her parent cannot write or has a disability preventing a written statement.  Virginia is currently taking the appropriate steps to protect children in such a situation.  This recommendation would also retain the current requirement regarding knowledge that “the behavior or performance of the student demonstrates the need for these services.”

Recommendation: Clarify the proposed regulation H.3.(b) so that it provides as follows:

A local educational agency would not be deemed to have knowledge that a child

is a child with a disability if. . . (b) The child has been evaluated within the last 3 years in accordance with 8 VAC 20-81-70 and 8 VAC 20-81-80 and determined ineligible for special education and related services.

Justification: A school district should not be able to rely on an outdated evaluation, from years ago, to assert that it is not deemed to know that a child had a disability.  The reason evaluations are conducted at least triennially is to ensure that the school district relies on up-to-date information about the child.  Otherwise, a child who is evaluated and found ineligible at age five is deprived of discipline protections when he/she is 13 and he/she would otherwise be entitled to these protections.  But a child who didn’t go through the process years ago would receive the protections.