But… Watch
Out for Their References and Recommendations
Dear
Colleagues,
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.”
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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.”
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And so, there is a need to clarify and
confront this issue today... as I have in the past:
CLICK HERE for my earlier Blog
on:
“Political
Doublespeak, Students with Disabilities, and Common Sense: How Departments of Education Use Language,
Fear, and Ignorance to Get their Way”
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CLICK HERE to see my earlier Blog
on:
“The New ESEA/ESSA: Discontinuing the US DoE’s School
Turn-Around, and Multi-Tiered Academic (RtI) and Behavioral (PBIS) System of
Supports (MTSS) Frameworks”
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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.”
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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.”
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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.
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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.
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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).
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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)].
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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.]
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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.
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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.
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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.
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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.
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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.
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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.
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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)].
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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.
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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.
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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.
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Summary
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:
CLICK HERE: “Effective School Discipline, Classroom
Management, and Student Self-Management: The Five Components that Every School
Needs”
CLICK HERE: “From One Extreme
to the Other: Changing School Policy from “Zero Tolerance” to “Total Tolerance”
Will Not Work”
CLICK HERE: “Why Students Don't Behave? Because We are
not Teaching Them the Social, Emotional, and Behavioral Skills They Need”
CLICK HERE: “Rethinking School Improvement and Success,
Staff Development and Accountability, and Students' Academic and Behavioral
Proficiency”
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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.
CLICK HERE for my 2012 technical
assistance:
National Concerns about RtI and PBIS: A Review of Policy and Practice
Recommendations Not Based on Research or Effective Practice.
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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.
Best,
Howie
