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Question: Help! The school had my child with autism arrested. The charges were dismissed but I am afraid this will happen again. What can I do?

Answer: You are wise to think this may happen again. You need to write a letter and request that the IEP team meet to review and revise your child's IEP, in light of the behavior issues that led them to have him arrested. Your letter should include relevant information about your child's history and your concerns. (For more about this, read Preparing for IEP Meetings: Providing Information & Sharing Concerns)

But first, you need to learn what the law requires IEP teams to do when when children with disabilities have behavior problems.

The IDEA 2004 regulations and commentary to the regulations were published in August 2006. The law, federal regulations and commentary describe what IEP teams must do when a child's behavior "impedes the child's learning or the leading of other children."

Do not assume that your child's IEP team is knowledgeable about these requirements.

The questions and answers about the requirements for meeting the needs of children with behavior problems (below) are taken from IDEA 2004, the special education regulations, and the Commentary.

Note: Wrightslaw: Special Education Law, 2nd Edition includes IDEA 2004 and the special education regulations. The book will be available in late Fall 2006. You can download the special education regulations and commentary and other resources from IDEA 2004 at Wrightslaw.

If a child’s behavior impedes the child’s learning or that of others, must IEP Teams base positive behavioral interventions and support on a functional behavioral assessment?

Yes. Conducting functional behavioral assessments typically precedes developing positive behavioral intervention strategies.

Does “consideration of special factors” address the behavioral needs of children with disabilities in the IEP process?

Yes. The IEP Team determines whether a child needs positive behavioral interventions and supports. If the behavior of a child impedes the child’s learning or the learning of other children, the IEP Team must consider the use of positive behavioral supports, supports, and other strategies to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i), 34 C.F.R. § 300.324(a)(2)(i))

If the child's behavior impedes the child's learning or that of others, must the IEP Team develop a plan to address these problem behaviors?

Yes. If the child's behavior impedes his learning or the learning of others, the IEP team must include strategies, including positive behavioral interventions, supports, and other strategies to address that behavior. If the child's behavior that impedes learning is not addressed in the IEP, the IEP Team must review and revise the IEP to ensure that the child receives appropriate positive behavioral interventions and supports and other strategies. (34 C.F.R. § 300.324(a)(2)(i) and 34 C.F.R. § 300.324(a)(3)(i).

Must school districts train teachers regarding the use of positive behavioral interventions and support?

Yes. School districts must provide teachers with high-quality professional development, including the use of scientifically based instructional practices. School districts must ensure that personnel have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities. Each district must ensure that all personnel necessary are appropriately and adequately prepared. (20 U.S.C. § 1412(a)(14), 34 C.F.R. § 300.156)

Each State must establish and maintain qualifications to ensure that personnel are appropriately and adequately prepared and trained, and have the content knowledge and skills to serve children with disabilities. (20 U.S.C. § 1412(a)(14), 34 C.F.R. § 300.156(a))

Must school districts use research-based positive behavioral supports and systematic and individual research-based interventions when addressing the behavioral needs of children with disabilities in their IEPs?

Yes. School districts must ensure that scientifically based research drives their professional development activities and services. (34 C.F.R. § 300.226(b)(1))

The implementation of early intervening services specifically focuses on professional development for teachers and other school staff to enable such personnel to deliver scientifically based academic and behavioral interventions, and providing educational and behavioral evaluations, services, and supports. (20 U.S.C. § 1413(f)(2), 34 C.F.R. § 300.226(b)(1))

The definition of "scientifically based research" is included in the regulations (34 C.F.R. § 300.35). Scientifically based research is referenced in IDEA 2004 (20 U.S.C. § 1411(e)(2)(C)(xi)). The full definition of the term “scientifically based research” includes that a peer-reviewed journal published the research, or that a panel of independent experts through a comparably rigorous, objective, and scientific review approved it.

Must public agencies provide positive behavioral interventions and supports for all children identified as having an emotional disturbance?

No. IEP Teams make decisions on an individual basis for each child. IEP Teams need not consider such interventions, supports, and strategies for a particular group of children, or for all children with a particular disability. IEP Teams must consider the use of positive behavioral interventions and supports, and other strategies to address the behavior of a child whose behavior impedes the child’s learning or that of others. (20 U.S.C. 1414(d)(3)(B)(i)), 34 C.F.R. § 300.324(a)(2)(i))

More IEP & IDEA 2004 Resources

IDEA 2004: What You Need to Know About IEPs & IEP Meetings - How did IEPs change under IDEA 2004? What does the law say about developing, reviewing and revising IEPs? Who may be excused from IEP meetings, when, how? When can the child's IEP be changed without an IEP meeting? What services must be provided when a child transfers to a district in the same state? A different state? What are “multi-year IEPs”?

IDEA 2004: What You Need to Know About IEP Team Members & IEP Team Attendance - Learn about IEP team members and IEP team attendance, when team members may be excused from a meeting, and what parents and the school district must do before a team member may be excused.

IDEA 2004: What You Need to Know about IEPs, Highly Qualified Teachers & Research Based Instruction - Learn about new language in IDEA 2004 that is designed to ensure that children with disabilities are taught by highly qualified teachers and receive research based instruction. This article includes new requirements for personnel training, IEPs, and scientifically based instruction.

10 Tips: How to Use IDEA 2004 to Improve Education for Children with Disabilities - Parent attorney Wayne Steedman explains how IDEA 2004 creates a higher standard for a free, appropriate public education and how parents can use NCLB to obtain a better IEP for their children. Learn how to include research based methodology in the IEP and ensure how to that the IEP goals are comprehensive, specific -- and measurable. Wayne advises you about pitfalls to avoid and offers advice about how you can resolve disputes without resorting to a due process hearing - and what you should do if you cannot resolve your dispute.

About Pat Howey

Pat Howey is an advocate who has helped parents obtain special education services and resolve special education disputes. Read more of Pat's answers to questions submitted by people just like you in Ask the Advocate.

As a member of the Wrightslaw Speakers Bureau, Pat provides training for parents, educators, and others who want to ensure that children receive quality special education services.