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California Department of Education, Special EducationDivisionMemorandumDate: November 8, 2007

To: Special Education Local Plan Area and State-operated Programs DirectorsSpecial Education Administrators at County OfficesAdvisory Commission on Special EducationInstitutions of Higher EducationInterested Individuals, Agencies and Organizations

From: Mary Hudler

Director, Special Education Division

Subject: Official Message from State Director of SpecialEducation

California law recognizes that "the state has continuallysought to provide an appropriate and meaningful educationalprogram in a safe and healthy environment for all childrenregardless of possible physical, mental, or emotionally

disabling conditions" (California Education Code [EC] Section56520[a][1]). Further, "teachers of children with specialneeds require training and guidance that provides positiveways for working successfully with children who havedifficulties conforming to acceptable behavioral patterns inorder to provide an environment in which learning canoccur" (EC Section 56520[a][2]).

The law also recognizes that in situations involving

"unpredictable, spontaneous behavior which poses a clearand present danger of serious physical harm to theindividual or others," emergency interventions may benecessary (California Code of Regulations, Title 5 [5 CCR],Section 3052[i]). However, emergency interventions are nota substitute for a systematic positive behavioral interventionplan (BIP) that is included in the student's individualized

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education program (IEP) (5 CCR Sections 3052[a][1]and[4]). In particular, physical restraint or seclusion of thestudent may only be used in properly licensed facilities, bystaff trained in emergency interventions, and only with such

force and duration as reasonable and necessary under thecircumstances (5 EC Section 3052[i][4][A]-[C]).

Functional Assessment Analyses

EC Sections 56520-56525 and 5 EC Section 3052 state thatstudents who have disabilities that affect their behavior inschool have the right to an IEP designed to bring lastingpositive behavioral change (5 EC Section 3052[a]) [The right

to a BIP applies equally to students placed in certifiednonpublic schools by the school district responsible forproviding a free appropriate public education (FAPE) basedon the student's residence (EC Section 56365)]. When theIEP team determines that strategies employed in the IEPwere ineffective to deal with a student's behavior, afunctional analysis assessment (FAA) of the behavior isnecessary (5 EC Section 3052[b]). Before conducting anFAA, parents must be given notice and parental consent to

the FAA must be obtained (EC Section 56321). The FAAevaluator must be properly trained to perform the followingduties:

· Systematic observation of the behavior, antecedents,and consequences· Ecological analysis of the setting· Review of records, including health and medicalfactors

· Review of the history of the behavior (5 EC Section3052 [b][1])

The FAA evaluator shall prepare a report that includes:

· A description of the nature and severity of thebehavior(s)

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· Baseline data and an analysis of the antecedents andconsequences across all appropriate settings· The rate of alternative behaviors, their antecedents,and their consequences

· Recommendations for consideration by the IEP team(5 EC Section 3052 [b][2])

Revising the BIP Based on the FAA

Whenever an IEP includes a BIP, the IEP team must beexpanded to include a behavioral intervention case manager.The case manager must assist in conducting the FAA and indeveloping the BIP while consulting with the other team

members. Case managers must have training in behavioranalysis, including positive behavioral interventions, and theability to monitor and evaluate the appropriateness andefficacy of an implemented BIP (5 EC Section 3052[a][1]and [2]). The BIP must indicate the frequency of consultation with staff and parents (5 EC Section 3001[f]).

Pursuant to 5 EC Section 3001(f), the BIP must include thefollowing items:

· A summary of information gathered from the FAA· Objective and measurable descriptions of thetargeted maladaptive behavior(s) and replacement positivebehavior(s)· Goals and objectives specific to the BIP· A description of the behavioral interventions to beused and the circumstances for their use· A schedule for recording the frequency of the use of 

the interventions and the frequency of the targeted andreplacement behaviors, including criteria for discontinuingthe use of the intervention for lack of effectiveness· Criteria by which the procedure will be faded orphased-out· Behavioral interventions that will be used in thehome, residential facility, work site, or other noneducational

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settings· Dates for periodic review of the program's efficacy

According to the timelines specified in the plan, the team

reviews the BIP. In most cases the teacher, instructionalassistant, parent, and others implement the BIP. Training,including the specific needs of the BIP and appropriaterecordkeeping and documentation, occurs beforeimplementation.

Emergency Interventions

Even in cases when the IEP team has developed a

responsible BIP, emergency intervention may be necessary"to control unpredictable, spontaneous behavior which posesclear and present danger of serious physical harm to theindividual or others and which cannot be immediatelyprevented by a response less restrictive than the temporaryapplication of a technique used to contain the behavior" (5EC Section 3052[i]). However, pursuant to 5 EC Section3052(l), emergency intervention may not include any of thefollowing:

· Any intervention designed to, or likely to, causephysical pain· Noxious, toxic, or otherwise unpleasant sprays, mists,or substances in proximity to the individual's face· Denial of adequate sleep, food, water, shelter,bedding, physical comfort, or access to bathroom facilities· Verbal abuse, ridicule, humiliation, or otherprocedures expected to cause excessive emotional trauma

· Physical restraint by a device, material, or object thatsimultaneously immobilizes all four extremities, includingprone containment or similar techniques, unless the restraintis used by personnel who are trained in the technique, and itis used only as an emergency intervention· Locked seclusion, unless it is in a facility otherwiselicensed or permitted by state law to use a locked room

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· Any intervention that leaves a student withoutadequate supervision· Any intervention that deprives the student of one ormore of the senses

Emergency interventions, particularly those employingphysical restraint or seclusion, should be used only byproperly trained personnel and only with the degree of forceand for the amount of time that is reasonable and necessaryto control the emergency. When the emergency has ended,school staff must return to the systematic BIP and positiveinterventions stated in the IEP. Whenever an emergencyintervention is used, the parents must be notified within one

school day and a "behavioral emergency report" mustimmediately be prepared that includes the information listedin 5 EC Section 3052(i)(5).

If you have any questions regarding this subject, pleasecontact Allison Smith at asmith@cde.ca.gov or 916-327-3698.

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