Saturday, February 16, 2013



By Lee Funk | SI&A Cabinet Report |

Thursday, February 14, 2013  ::  After losing a decades-long battle with schools over the state’s responsibility to reimburse districts for developing behavior intervention plans for special education students, Gov. Jerry Brown has proposed legislation that would severely limit what ultimately will be paid back.

The proposal, contained deep inside the governor’s recently released package of budget bills, would also outlaw a number of actions that teachers and district personnel can utilize in restraining disruptive students.

The plan comes forward in the wake of adoption earlier this month of a funding formula by the Commission on State Mandates for BIP reimbursements dating back to the 1990s – an action that seemingly would clear the way for districts to begin claiming an estimated $1 billion owed in BIP mandates. (See Cabinet Report, Feb. 1:

Brown’s latest proposal also follows an unsuccessful attempt by the Legislature last summer to eliminate the same BIP mandate liability.

The intervention plans are strategies developed as part of an Individualized Education Plan when conduct by a special education student interferes with his or her education. The process requires significant and specialized staff time and includes assessments of the student, reports and training.

Led by the California School Boards Association, school groups have argued that legislation called for development of the plans and therefore require state reimbursement – a point former Gov. Arnold Schwarzenegger conceded in a 2009 settlement.

Still, there has remained much interest from state officials to revise the BIP legislation because some required activities exceed federal standards as defined under the Individuals with Disabilities Education Act and can be repealed without penalty.

The concerns of school administrators, however, is that they would likely still have to continue with the BIP activities but the Legislature would no longer be required to pay for it, as the state mandate would be eliminated.

As part of his January budget, the governor has proposed eliminating those overlapping requirements and thus, the state mandate as well.

Brown has proposed setting new parameters for the types of activities that may be included in a BIP and attempts to confine the state’s potential liability for local expenses by stating the requirements “shall not exceed” those of federal law or “create new and separate state requirements, or result in a level of state service beyond … federal law and regulations.”

In addition, the governor’s plan would carry forward provisions already in statute that could reduce possible repayments to local educational agencies through the stipulation that “state funding provided for purposes of special education … shall first be used to directly offset any mandated costs.”

As proposed, the budget trailer bill would also set guidelines for the types of interventions that can be included in behavior plans and spells out the types of emergency situations that would authorize schools to use strategies that are not designated in BIPs.

The current language would outlaw eight broad categories of aversive procedures under any conditions:

· Those that may cause “physical pain…”

· The release of “noxious, toxic, or … unpleasant sprays…”

· Denial of “adequate sleep, food, water, shelter, bedding, physical comfort…”

· “Verbal abuse, ridicule or humiliation…”

· Immobilization

· “Locked seclusion…”

· Inadequate supervision

· Sensory deprivation

The legislation would allow teachers and administrators to employ behavior management strategies that are not part of a student’s BIP, but only under special circumstances “to control unpredictable, spontaneous behavior which poses clear and present danger of serious physical harm…that cannot be immediately prevented by a response less restrictive…” But it clearly states that this type of response shall not include any of actions noted in the eight unauthorized categories and shall not be used as a “substitute for the systematic behavioral intervention plan.”

The restriction that claims for costs associated with BIPs must be offset by special education funding was already part of the code as a provision of AB 1610, enacted in October of 2010. That law, though, is currently being challenged in Superior Court by the California School Boards Association. The petition, filed in Alameda County in January of 2011, alleges that it is “a clear attempt to eliminate the state’s mandate liability for several Commission-determined mandates.”

Editor Tom Chorneau contributed to this report.

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