Toolbox Tuesday: When the BIP is not implemented, the behavior is not subject to punishment.

We talk a lot about BIPs in the Toolbox Training.  Creation of a BIP is Tool #1, and we make sure that everyone understands that this is the most important tool.  It’s the only one of the ten “tools” in the Toolbox that is intended to improve the student’s behavior.  Implementation of the BIP with consistency is critical. In fact, the failure to implement the BIP may mean that the student’s misbehavior is a manifestation of disability, and thus not subject to any long term punitive consequences.

Let’s review.  The manifestation process requires the team to answer two questions: 

  • Was the student’s misconduct caused by the student’s disability?
  • Was the misconduct the direct result of the school’s failure to implement the IEP?  

If either question is answered “yes” the behavior must be considered to be a manifestation of disability. In Toolbox terminology, this means that Tool #6—a Disciplinary Removal—is not available. 

A “yes” answer to that second question is rare. That’s why a recent hearing officer’s decision from Georgia caught my attention.  The case involved a student on the Autism Spectrum who unintentionally smacked a coach.  Under the Code of Conduct this called for Tool #6--a long term disciplinary removal to the Georgia equivalent of a DAEP.  That’s what happened.  The district provided the student a hearing, found him guilty, and answered both MDR questions with a “no.” 

However, the parent requested a hearing, challenging the manifestation determination.  The hearing officer ruled in favor of the parent, concluding that the school had not implemented the boy’s BIP, and that failure “more likely than not” led directly to the coach getting smacked.

The BIP directly addressed conflict situations with peers.  That’s exactly what was going on when the coach intervened—a fight between the student and a classmate.  The coach blew his whistle and got the attention of both boys, who complied with his instructions.  So far so good. Things settled down, but only briefly.  Then the other kid “re-engaged” and our plaintiff responded by trying to hit him. That’s when he unintentionally hit the coach instead.

The BIP called for specific steps to be taken when the student got into it with a classmate.  Step One was verbal redirection.  If that did not work, Step Two was to instruct him to go to a “safe place” to settle down.  In the heat of the moment with the two boys and the coach, and a teacher and aide nearby, no one gave the plaintiff the command to go to a safe place. The hearing officer reasoned that the boy had complied with the coach’s initial instructions, and probably would have complied with a direction to go to the safe place.

Also critical to the hearing officer’s reasoning was the fact that three of the four members of the MDR Team did not know that the other kid had re-engaged the fight.  Therefore, they were not aware of the need to implement Step Two in the BIP.

It’s critical that all members of the ARDC be aware of all of the relevant circumstances before making the MDR.  And as we emphasize often here, it’s equally critical that BIPs be implemented with fidelity.

This case is Henry County School District, decided a special education hearing officer in Georgia on December 5, 2018.  We found it at 74 IDELR 28. 


Tomorrow: 9th grader seeks principal’s termination.