The United States Department of Education’s Office for Special Education and Rehabilitative Services (OSERS) published a Dear Colleague Letter (DCL) on August 1, 2016 underscoring the importance of positive behavioral interventions and supports for students with disabilities and cautioning individualized education program (IEP) teams to consider such supports for any special education student whose behavior impedes his or her learning or the learning of others, as required by the Individuals with Disabilities Education Act (IDEA). The DCL stresses this statutory requirement and urges increased attention and effort on the part of IEP teams to consider and implement these supports in light of short-term disciplinary removals of students and other exclusionary disciplinary measures.
In part, the guidance acknowledges school personnel’s authority under the IDEA to remove a child with a disability for up to ten school days upon violation of a code of student conduct; however, OSERS cites research and studies for the proposition that disciplinary removals, such as school suspensions, are often inimical to deterring misbehavior and can impede the successful implementation of IEPs. Through the guidance, OSERS urges reliance on the use of positive behavioral intervention and supports and other strategies, noting that instances of student misbehavior may require the IEP team to consider aspects of the student’s IEP related to behavior and to inquire whether behavioral supports should be revised or differently implemented. The guidance also advocates for and suggests as best practice the holistic implementation of school-wide, multi-tiered behavioral frameworks that provide clear behavioral expectations for all children as well as small group and targeted interventions.
In addition, the DCL takes aim at school personnel’s authority to remove students for up to ten consecutive school days, expressing concern over the fact that some educational authorities “may have erroneously interpreted the IDEA to provide school personnel with the broad authority to implement short-term removals without restriction and without regard to whether the child’s IEP is properly addressing his or her behavioral needs.” The DCL further notes that references to the ten-day period as “free days” mischaracterizes this authority and may discourage consideration of whether behavioral supports are needed to address student behaviors that impede learning before, during and after short-term disciplinary removals. The DCL explains that the use of such short-term disciplinary removals may indicate that the IEP (or its implementation) is not appropriately addressing a student’s behavioral needs, which, in turn, may result in a denial of a free appropriate public education (FAPE) for a student.
Furthermore, the DCL addresses the use of exclusionary disciplinary measures such as repeated office referrals, exclusionary time-outs and other similar measures. OSERS notes that, generally, such measures are not considered as a disciplinary removal from a student’s educational placement (subject to the 10-day and short-term removal analysis) if such students have an opportunity to be involved in and make progress in the general education curriculum, receive their IEP instruction and services and participate with children without disabilities to the same extent they normally would. OSERS cautions, however, that the repeated use of exclusionary disciplinary measures for a student likely would constitute a disciplinary removal from the student’s educational placement and school districts must treat them as such.
In sum, the guidance reinforces the specific IDEA requirement that IEP teams consider the use of positive behavioral interventions and supports to address students’ behavioral issues and urges educators to consider such supports before, during and after the use of disciplinary removals and exclusionary disciplinary measures. OSERS stresses that an IEP team’s failure to appropriately consider and provide such supports may result in denial of FAPE.