Behavioral Support Obligations (updated)

Introduction

This Basic Education Circular (BEC) explores when and to what extent a school district can rely on Medicaid (MA) funded wraparound mental health services for students with disabilities for whom it has an obligation to provide a free appropriate public education (FAPE). It also clarifies that, regardless of what services are available through MA, the school district retains the obligation to guarantee that its students with behavioral disabilities who need one-to-one support do not experience delays or gaps in service. (Students with physical disabilities can also be entitled to such assistance, but that is not covered by this BEC.) The term "one-to-one support" means the individual support of an adult to address the behavioral needs of a student, over and above the individualized assistance that the child would normally receive from the teacher and other staff assigned to the child's class(es).

General Principles

Some children need one-to-one support to address behavior problems in the school setting. When families agree and are eligible for MA, school districts can often meet this need using the resources of the MA funded mental health system - usually MA funds trained individuals called Therapeutic Staff Support or TSS to help in the school setting. However, regardless of whether MA funded resources might be available, school districts retain the ultimate responsibility for assuring that children with disabilities are provided with an appropriate education, including, when necessary, one-to-one support.

Whenever an Individualized Education Plan (IEP) or §504 team determines that a child needs one-to-one support for all or part of a school day, the service must be listed on the child's IEP or service agreement.

The school district must then assure that there are no delays or gaps in service delivery, even if that means using district staff to provide the support. In short, a school district cannot rely exclusively on the provision of a TSS by the MA system to meet its obligation to provide the one-to-one support needed to provide FAPE to its students. Moreover, it is never appropriate to deny a student access to school or school transportation because of the unavailability of a TSS.

Guidelines for Including One to One Support on IEPs and Service Agreements

The key question for the IEP and service agreement teams is whether the child needs this degree of help to be maintained in the school setting, and to make meaningful progress in accomplishing his/her educational and behavioral goals. Again, if one-to-one support is needed, it must be listed on the IEP or service agreement, even if the family and the district expect that the support will be provided through MA.

Some sources of information for the teams are:

• The results of the child's functional behavioral assessment, and any other evaluations available to the teams, including evaluations from the child's mental health provider;
• Reports from the child's parents, teachers and other persons with information relevant to the child's behavioral needs;
• The child's past history in making meaningful progress in his or her educational program - including the child's progress toward socialization goals - without one-to-one support;
• The child's record of disciplinary offenses, including multiple short-term suspensions.

Students who are determined by their IEP or service agreement teams to need one-to-one support must have a behavior plan that is part of the child's IEP or service agreement. That plan must list the one-to-one support, and describe it with specificity: i.e., the plan must include a description of the educational and behavioral needs of the child that will be addressed; the amount of service that will be provided; and how progress will be measured. This information must be sufficiently complete to permit adequate collaboration and cooperation with a MA mental health agency, and to permit school staff to provide the one-to-one support as described in the IEP or service agreement if the TSS, or another non- district staff, is or becomes unavailable.

To the extent that the child's treatment plan as developed by the MA mental health agency includes information that is pertinent to the child's educational needs, or coordination among school and MA personnel, that information should be included, with the parents' consent, in the school district's behavior plan.

The IEP or service agreement should also identify other agencies or persons not employed by the school district who will be involved with the provision of one-to-one support to the child; describe the role of each agency/person in implementing the IEP goals; and describe the manner in which the TSS or other non-district staff, and the teachers, aide(s) or other district personnel, will coordinate their efforts.In all cases in which the team and the family anticipate that the needed one-to-one support will be provided by a TSS, the team should specify in the IEP or service agreement how the district will insure that the service is provided without gaps or delays - especially when the child is unable promptly to obtain the TSS through MA, or the TSS becomes unavailable. This may be accomplished by designating specific and sufficiently trained staff at the student's school to provide the support, or by developing a district-wide pool of adequately trained staff. Again, in no event may a child be excluded from school or school transportation because of the unavailability of a TSS.

Additional Resources:

• State Board of Education Regulations 22 Pa. Code §14.133
• Federal Regulations 34 CFR §300.300
• Kellner v. School District of Philadelphia, C.A. 98-6190 E.D. Pa.

Additional Contact:

Bureau of Special Education
Pennsylvania Department of Education
Harrisburg, PA 17126-0333
Voice: 717-783-6918

DATE OF ISSUE: July 1, 2003 DATE OF EXPIRATION: June 30, 2005

Parents Involved Network (PIN), a project of
Mental Health Association of SE PA
1211 Chestnut Street, 11th Floor
Philadelphia, PA 19107
215-751-1800 or 800-688-4226
Email: law@pinofpa.org