Post-"Hughes Bill" Behavioral Interventions and Reimbursement Claims

August 2013

Two updates recently occurred related to behavior plans for special education students.  First, Assembly Bill 86 (“AB 86”) was passed, resulting in the repeal of the Hughes Bill as of July 1, 2013.  Second, the State Controller issued claiming instructions for school districts to access more than $1 billion of retroactive reimbursement related to the Hughes Bill costs incurred by school districts during previous school years.

AB 86:  Repeal of the Hughes Bill
AB 86, a budget omnibus trailer bill, repealed the “Hughes Bill,” which was a California behavior intervention program mandate for special education students who exhibited serious behavioral problems.  AB 86 now requires behavior interventions for special education students to align more closely with federal law, as identified in the Individuals with Disabilities Education Act (“IDEA”) and its regulations.  AB 86 revises Education Code sections 56520-56525 and requires the Superintendent of Public Instruction to repeal Sections  3052 and 3001(d)-(g) and (ab) of Title 5 of the California Regulations.  Following is a summary of the important changes created by AB 86:

  • Repeal of Requirement to Conduct a Functional Analysis Assessment:  School districts are no longer required to conduct functional analysis assessments (“FAAs”) and develop “Hughes Bill” behavioral intervention plans (“BIPs”) for students who exhibit “serious behavioral problems.”  Instead, districts are now simply required to follow federal law, which provides that IEP teams must address behavior when it impedes a student's learning or the learning of others.  Federal law does not specify how districts must address behavior, so district staff may now, through the IEP process, use their professional discretion to address behavior in a variety of ways, including the development of goals, conducting behavioral assessments, and developing positive behavioral interventions and supports.  This discretion applies to all special education students, even those who exhibit serious behavior problems. [1]
  • Limitations on the Use of Emergency Interventions: Emergency interventions may not be used in lieu of an appropriate BIP that is designed to change, replace, modify, or eliminate a targeted behavior.  AB 86 clarifies that emergency interventions may only be “used to control unpredictable, spontaneous behavior that poses clear and present danger of serious physical harm” to the student with a disability or others and that “cannot be immediately prevented” by a lesser restrictive response.  
  • Prohibition Against Certain Emergency Interventions:  AB 86 continues to prohibit the use of both restraint and seclusion (except by agencies licensed and authorized to use such interventions).  In addition, it prohibits the use of interventions that are designed or are likely to cause pain (such as electroshock) or that subject students to verbal abuse, humiliation or ridicule; that deprive students of any of their senses or of sleep, food, water or shelter or proper supervision; or that involve the use of noxious sprays or substances.
  • Notification of the Use of Emergency Interventions:  School districts still must notify the student's parent, guardian or residential caregiver of the use of an emergency intervention or of serious property damage within one school day of the incident.  Districts must also immediately complete a behavioral emergency report (“BER”) documenting the details of the incident and whether or not the student has a BIP.  The BER must be submitted to a designated responsible administrator and placed in the student's file. 
  • Obligation to Schedule and Convene an IEP Meeting When Emergency Interventions are Used: Where a student does not have a BIP in place, school districts continue to be required to schedule IEP meeting within two school days.  The IEP team must review the BER to determine the necessity for a functional behavioral assessment (“FBA”) and an interim plan, pending development of a BIP, if needed.  Further, where a student has a BIP in place, the IEP team must determine the need to modify the existing BIP when the incident involves a previously unseen serious behavior problem or ineffective behavior intervention.
  • Behavior Intervention Case Manager (“BICM”) Eliminated:  Districts are no longer required to use a BICM when a BIP is being developed and implemented.  Rather, AB 86 requires the Superintendent of Public Instruction to explore whether current teacher credentialing requirements include sufficient training in appropriate behavioral interventions.  Further, a district may, but is not required to, use a Board Certified Behavior Analyst (“BCBA”) for behavior assessments and behavioral intervention services.

We recommend that school districts and SELPAs immediately review their policies, regulations, forms, and handbooks to reflect the current legal requirements.  In addition, districts and SELPAs should train administrators, teachers, and staff should to ensure consistency in the implementation of appropriate behavioral interventions.

Retroactive Reimbursement: Instructions and Claim Forms
During its existence, the Hughes Bill imposed behavior intervention requirements in excess of those found in federal law.  However, it did not provide the funding or a mechanism for school districts to recoup the resulting additional mandated costs.  On January 25, 2013, after a 10-year battle led by the California School Boards Association’s Education Legal Alliance, and supported by legal services provided by F3, the Commission on State Mandates unanimously agreed to adopt F3's proposal to use a standardized formula to allow school districts to recover mandated costs incurred between the 1993-1994 and 2011-12 school years under the State’s Hughes Bill.  For the 2012-13 school year, school districts must claim, and will be reimbursed for, actual costs.[2]  

On July 24, 2013, the California State Controller issued claiming instructions and claim forms for retroactive payment for school years from 1993-94 through 2012-13.  We encourage school districts to review this information as soon as possible as the deadline for reimbursement claims for school years 1993-94 through 2011-12 is November 21, 2013, and the deadline for reimbursement claims for the 2012-13 school year is February 18, 2014. 

  • Instructions and forms for the school years 1993-94 through 2011-12 are posted on the State Controller's website here.
  • Instructions and forms for the school year 2012-13 are posted on the State Controller's website here.

On July 26, 2013 the Commission approved an estimate of the costs from 1993-94 to 2011-12 in the amount of $1,008,923,805.  The Commission-approved amount now awaits Legislative authorization.

For inquiries regarding how the passage of AB 86 may impact your district or for assistance in submitting a claim for retroactive reimbursement for costs incurred under the Hughes Bill, please contact an attorney in any one of our six offices throughout California.

F3 NewsFlash prepared by Jonathan Read, Anne Sherlock and Siobhan Cullen.
Jonathan is a partner in the F3 San Marcos office.
Anne is a partner in the F3 Sacramento office.
Siobhan is an associate in the F3 Los Angeles office.

 This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.

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© 2013 Fagen Friedman & Fulfrost, LLP

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[1] The IDEA refers to behavior intervention plans, or BIPs, in the disciplinary removal context.  In order to avoid confusion with Hughes Bill BIPs, school districts in California have historically referred to any non-Hughes Bill BIP as a behavior support plan, or “BSP.”  With the repeal of the Hughes Bill, the term BIP can now be used in reference to any behavior plan without the potential for confusion. 

[2] For more information on this landmark legal victory, please see F3 NewsFlash No. 13-07, available on our website at http://bit.ly/Y5QlUt.  For more information regarding filing your reimbursement claims, please see F3 NewsFlash No. 13-17, available on our website at http://bit.ly/19ujQp6.