Sec. 711.46 - Positive behavior support
§ 711.46. Positive behavior support
(a) Positive rather than negative measures shall form the basis of positive behavior support programs to ensure that all students shall be free from demeaning treatment, the use of aversive techniques and the unreasonable use of restraints. Behavior support programs must include research based practices and techniques to develop and maintain skills that will enhance an individual student's opportunity for learning and self-fulfillment. Behavior support programs and plans shall be based on a functional assessment of behavior and utilize positive behavior techniques. When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student must be the least intrusive necessary. The use of restraints is considered a measure of last resort, only to be used after other less restrictive measures, including deescalation techniques in accordance with subsection (c)(2).
(b) Notwithstanding the requirements incorporated by reference in 34 CFR 300.34, 300.324, 300.530 (relating to related services; development, review, and revision of IEP; and authority of school personnel), with regard to a child's behavior, the following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Aversive techniques-Deliberate activities designed to establish a negative association with a specific behavior.
Positive behavior support plan-A plan for students with disabilities who require specific intervention to address behavior that interferes with learning. A positive behavior support plan shall be developed by the IEP team, be based on a functional behavior assessment and become part of the student's IEP. These plans include methods that utilize positive reinforcement and other positive techniques to shape a student's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.
(i) The application of physical force, with or without the use of a device, for the purpose of restraining the free movement of a student's body. The term does not include briefly holding, without force, a student to calm or comfort him, guiding a student to an appropriate activity, or holding a student's hand to safely escort him from one area to another.
(ii) Excluded from this definition are hand-over-hand assistance with feeding or task completion and techniques prescribed by a qualified medical professional for reasons of safety or for therapeutic or medical treatment, as agreed to by the student's parents and specified in the IEP. Devices used for physical or occupational therapy, seatbelts in wheel chairs or on toilets used for balance and safety, safety harnesses in buses, and functional positioning devices are examples of mechanical restraints which are excluded from this definition, and governed by subsection (d).
(c) Restraints to control acute or episodic aggressive or self-injurious behavior may be used only when the student is acting in a manner as to be a clear and present danger to himself, to other students or to employees, and only when less restrictive measures and techniques have proven to be or are less effective.
(1) The use of restraints to control the aggressive behavior of an individual student shall cause the charter school or cyber charter school to notify the parent of the use of restraint and shall cause a meeting of the IEP team within 10 school days of the inappropriate behavior causing the use of restraints, unless the parent, after written notice, agrees in writing to waive the meeting. At this meeting, the IEP team shall consider whether the student needs a functional behavioral assessment, reevaluation, a new or revised positive behavior support plan or a change of placement to address the inappropriate behavior.
(2) The use of restraints may only be included in a student's IEP when:
(i) Utilized with specific component elements of positive behavior support.
(ii) Used in conjunction with the teaching of socially acceptable alternative skills to replace problem behavior.
(iii) Staff are authorized to use the procedure and have received the staff training required.
(iv) There is a plan in place for eliminating the use of restraint through the application of positive behavior support.
(3) The use of prone restraints is prohibited in educational programs. Prone restraints are those in which a student is held face down on the floor.
(4) The use of restraints may not be included in the IEP for the convenience of staff, as a substitute for an educational program or employed as punishment.
(5) Charter schools and cyber charter schools shall maintain and report data on the use of restraints as prescribed by the Secretary. The report will be reviewed during cyclical compliance monitoring conducted by the Department.
(d) Mechanical restraints, which are used to control involuntary movement or lack of muscular control of students when due to organic causes or conditions, may be employed only when specified by an IEP and as determined by a medical professional qualified to make the determination, and as agreed to by the student's parents. Mechanical restraints must prevent a student from injuring himself or others or promote normative body positioning and physical functioning.
(e) The following aversive techniques of handling behavior are considered inappropriate and may not be used by charter schools or cyber charter schools in educational programs:
(1) Corporal punishment.
(2) Punishment for a manifestation of a student's disability.
(3) Locked rooms, locked boxes or other locked structures or spaces from which the student cannot readily exit.
(4) Noxious substances.
(5) Deprivation of basic human rights, such as withholding meals, water or fresh air.
(6) Suspensions constituting a pattern.
(7) Treatment of a demeaning nature.
(8) Electric shock.
(f) Charter schools and cyber charter schools have the primary responsibility for ensuring that behavior support programs are in accordance with this chapter, including the training of personnel for the use of specific procedures, methods and techniques, and for having a written policy and procedures on the use of behavior support techniques and obtaining parental consent prior to the use of restrictive or intrusive procedures or restraints.
(g) Charter schools and cyber charter schools may convene a review, including the use of human rights committees, to oversee the use of restrictive or intrusive procedures or restraints.
(h) Subsequent to a referral to law enforcement, for a student with a disability who has a positive behavior support plan, an updated functional behavior assessment and positive behavior support plan shall be required.(The provisions of this § 711.46 adopted June 27, 2008, effective July 1, 2008, 38 Pa.B. 3593.)
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