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 need to write a letter and request that the IEP team meet to revise your child's IEP, in light of the behavior issues that led them to have him arrested.
But first, you need to learn what the law requires IEP teams to do when when children with disabilities have behavior problems. (You need to view your role as your child’s “case manager.” Learn more about "The Parent as Project Manager" in Chapter 3 of Wrightslaw: From Emotions to Advocacy).
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 your child's IEP team is knowledgeable about these requirements.
The questions and answers about meeting the needs of children with behavior issues and problems (below) are from the federal special education regulations and commentary. Wrightslaw: Special Education Law, 2nd Edition includes IDEA 2004 and the special education regulations. (The book will be available in late Fall 2006.) Until the book is available, you can download the special education regulations and commentary and other resources from IDEA 2004 at Wrightslaw - they are an invaluable resource.
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.
When the IEP Team considers “special factors”, must it consider internalizing and externalizing behaviors of the child?
Yes. Consideration of special factors includes looking at a child’s internalizing and externalizing behaviors.
(34 C.F.R. § 300.306(c)(1)(i))
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 and other strategies to address that behavior.
(emphasis added) (34 C.F.R. § 300.321(a)(2)(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. § 1413(a)(3), 34 C.F.R. § 300.207, 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 base activities on a review of scientifically based research. 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.
(34 C.F.R. § 300.226)
School districts must ensure that scientifically based research drives their professional development activities and services.
(34 C.F.R. § 300.226(b)(1))
The definition of "scientifically based research" is important to the implementation of IDEA 2004. (Part B of IDEA 2004 includes a reference to section 9101(37) of the ESEA in 34 C.F.R. § 300.35) The full definition of the word “scientifically based research” includes that a peer-reviewed journal publishes the research, or that a panel of independent experts through a comparably rigorous, objective, and scientific review approves 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: 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.
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.
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.
Meet Pat Howey 
Patricia Howey has supported families of children with disabilities since 1985. She has a specific learning disability and became involved in special education when her youngest child entered kindergarten. Pat has children, grandchildren, and great-grandchildren who have a variety of disabilities and she has used her experience to advocate for better special education services for several of them.
Pat is a charter member of the Council of Parent Attorneys and Advocates (COPAA), serving on its Board of Directors from 2000 through 2003. She has been a Commissioner on the Tippecanoe (County) Human Relations Committee, a graduate of Leadership Lafayette and Partners in Policymaking, and a member of the Wrightslaw Speakers Bureau. She has been on the faculty of the College of William and Mary Law School’s Institute of Special Education Advocacy since its inception in 2011.
Pat has an A.S. and a B.A. in Paralegal Studies from Saint Mary-of-the-Woods College, where she graduated magna cum laude. She is an Indiana Registered Paralegal and an affiliate member of the Indiana Bar and the American Bar Associations.
Pat began her advocacy career as a volunteer for the Task Force on Education for the Handicapped (now InSource), Indiana’s Parent Training and Information Center. In 1990, she opened her advocacy practice and served families throughout Indiana by representing them at IEP meetings, mediation, and due process hearings.
In 2017, Pat closed her advocacy practice and began working on a contract basis as a special education paralegal. Attorneys in Indiana, Texas, and California contracted with her to review documents, spot issues, draft due process complaints, prepare for hearings, and assist at hearings. In January 2019, she became an employee of the Connell Michael Kerr law firm, owned by Erin Connell, Catherine Michael, and Sonja Kerr. Her duties have now expanded to assisting with federal court cases.
"Changing
the World -- One Child at at Time."
Contact Information
Patricia L. Howey, B.A., IRP
POB 117
West Point, Indiana 47992-0117
E-mail: specialedconsulting@gmail.com
Webpage: https://cmklawfirm.com/
