Changes to California Law Hughes Bill Implications
From: PENT
Sent: Thursday, August 29, 2013 10:02 AM
Subject: Changes to California Law Hughes Bill Implications

Dear Colleagues:

I want to thank Dr. Valerie Johnson, current PENT Director and Director of the Diagnostic Center, Southern California, for the opportunity to send this message out to the PENT network in response to the current status of legal changes in California related to behavior.

As we know, the law related to severe behavior has changed in a trailer bill for immediate implementation. The implementing Ed Code Regulations will soon follow. Some of our districts have begun receiving legal advice, and other districts have not. Some attorney firms are recommending changes now, whereas others are saying, "Wait until the Regulations are put in place." We should follow the advice of our consulting attorneys. This email is an attempt to clarify how I see this may affect practices in districts. I have received many phone calls and emails from folks around the state asking for clarification, and I therefore wanted to get a message out to all of you.

California will now be in alignment with the rest of the country in language related to behavior plans. FBA will be the exclusive term used to describe the process of 1) reviewing records, 2) conducting direct observations, 3) interviewing stakeholders and then developing a hypothesis of why the behavior is occurring to be the underpinning of the behavior INTERVENTION plan. FAA will not be a term used.

I clearly remember 1989 and the following two years when the "Hughes Bill" and implementing California Regulations were being developed. Two students had died in California due to inappropriate behavioral interventions, and legal pressure was on to prevent this from happening again. I was invited by the then legislative members involved in the bill to begin training districts on positive interventions and behavior planning, which began the 5 year training plan called "One Page Behavior Plans that Work" under direction of the then Diagnostic Center, Southern California Director, Deborah Holt. I had the unique opportunity to meet many people from the Oregon border to the Mexican border and all points in between. The SELPA Directors asked Debbie and I to form a "trainer of trainers" model, and the time was ripe due to invention of the internet and email, so the PENT network was born.

Essentially, BSP is a term I made up years ago when we had FAA and PBIP on our books, and federal law was newly written to include the terms "FBA" and "BIP." The three efforts to get language into California law at Department of Education request, so we could distinguish the lengthy California specifications from the less developed federal language historically did not succeed, and we have been living with two behavior plans for some time.

So, NOW what are the essential changes?

  1. BSP term will be replaced with BIP. The plan form remains the same and will be altered in SEIS system to say "BIP" very soon according to SELPA directors consulting with SEIS I have spoken with.
  2. It will take some time, but all references to BSP will be replaced with the term BIP on
  3. Due to the legal changes removing the requirement for BICMs, SELPA directors will no longer have BICMs, nor certify BICMs at district request.
  4. FBAs no longer need to be conducted by BICMs, since the term has been dropped.

So, what remains the same?

  1. Our most skilled staff should be involved with our most severe behaviors. This is an ethical requirement, and something that is attempted nationwide, even without a law to mandate that this to occur.
  2. Ineffective or non-implemented behavior plans can result in the student not receiving "some educational benefit" which legally would be a lack of an IEP designed to provide FAPE (free appropriate public education). When a lack of FAPE occurs, districts can be liable for compensatory education to ameliorate the problem. This is costly, and adds to the ethical requirement we all have in removing behavioral barriers for success. Administrators will continue to struggle in this area.
  3. SELPAs and districts can train their own folks in behavior plan development, or rely on the training staff have received elsewhere, including in programs that prepare staff to obtain a license to be a Board Certified Behavior Analyst. There is NO legal requirement to hire BCBAs, but many districts have done so to assure that they have staff well trained in behavior analysis and positive behavior interventions, and many of our colleagues have sought out that BCBA endorsement. An increasing number of brick and mortar universities and on-line universities are offering that coursework.
  4. No credential or license or endorsement guarantees the staff person will be skillful, whether teacher, psychologist, BCBA, or administrator. It takes consulting skills, political and interpersonal skills, knowledge of evidence based interventions, curriculum and environmental structures to educate today's youth. I have seen many staff who have some, but not all, the skills to alter behavior in schools, and many staff who are excellent in all ways. The question is, can our consultations result in staff fidelity of implementing a well-designed behavior plan?
  5. Especially with Autism and Emotional Disturbance, our staff, regardless of supporting credentials and licenses MUST be aware of the environmental supports that remove the need for the student to select problem behavior. This is half of a behavior plan! Most of us are aware of the website, where evidence based supports are available. All of us working in behavior need to master this content. In terms of Emotional Disturbance, Dr. Cook and I have written a book, "RTI in restrictive Settings: The Tiers Model for Students with Emotional/Behavioral Disorders", at This book assembles the evidence based interventions for the EBD population. Currently, there is no website for this, but I am working on it and will let you know when it is developed.
  6. The BSP Quality Evaluation Guide on the PENT website remains a researched based tool to evaluate plan quality. As we know, Dr. Bruce Gale has made an electronic version of this available now to PENT Cadre members. For others, please contact Dr. Gale for access. Whether paper/pencil or electronic, this can help staff evaluate the quality of the plan. In fact, many other states have begun using this, and I have trained all over the country on this the last 5 years.
  7. Dr. Clayton Cook, myself, and other PENT researchers have published in peer reviewed journals on scoring plans and the message is clear: the higher the plan score, the greater the likelihood of fidelity, and the greater the likelihood of positive student behavior change.
  8. When we do develop a behavior plan, we need to be sure that lesser interventions have been tried, as behavior plans are a "Tier 3" intervention that are individualized, time intensive, and require trained staff.
  9. FBAs require parent permission for assessment, and an FBA report needs to outline the baseline data, our methods of gathering data, and what data supports our conclusions that we then offer to the IEP team for plan development. No single person writes a behavior plan; this is an IEP team function.

Best wishes to all of you in your endeavors to alter problem behavior, increase academic and social emotional health of our students. Feel free to contact me if you would like to discuss anything further.

PENT Co-Founder and former PENT Director

Diana Browning Wright. MS, LEP
business cell: 626 487 9455
home office: 626 355 2660



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