Management Bulletin 23-08

Early Education Division

Subject: Suspension and Expulsion in the California State Preschool Program

Number: 23-08

Date: September 2023

Expires: Until rescinded or superseded by regulations

Authority: Assembly Bill (AB) 2806 (Chapter 915, Statutes of 2022); California Education Code (EC) sections 8243, 8489, and 8489.1

Attention: Executive Directors and Program Directors of all California State Preschool Programs

Purpose

This Management Bulletin (MB) notifies and provides guidance to California State Preschool Program (CSPP) contractors of the new requirements for suspension and updated requirements for expelling or unenrolling a child from a program due to a child’s behavior. This MB supersedes and nullifies the California Code of Regulations, Title 5 (5 CCR) Section 17731 that contains requirements on expulsion or unenrollment of a child due to behavior. This MB also rescinds and replaces MB 18-06.

Policy

Except in specific circumstances listed below in the “Directives for Implementation” section, per Education Code (EC) Section 8489.1(a) and (b), a program must not:

1. Suspend a child due to a child’s behavior.
2. Encourage or persuade a child’s parents or legal guardians to prematurely pick up a child due to a child’s behavior before the program day ends.
   
3. Expel or unenroll a child because of a child’s behavior.
   
4. Persuade or encourage a child’s parents or legal guardians to voluntarily unenroll from the program due to a child’s behavior.
   

Directives for Implementation

Definitions

“Suspension” means any removal of a child from all or part of the program day, or the prevention of a child from attending the program for one or more days, in response to the child’s behavior.

Note: Moving a child to an isolated or separate room is considered "removing the child from the program." Programs may remove children from specific situations to allow the child to calm down or regain composure, such as taking the child for a walk or accompanying the child to an outdoor environment; however, the child must return to the classroom as soon as they have calmed down and may not be removed for longer than 30 minutes.

“Expulsion” means the permanent dismissal of a child from a program in response to a child’s behavior.

“Persistent and serious behaviors” means either repeated patterns of behavior that significantly interfere with the learning of other children, or interactions with peers and adults that are not responsive to the use of developmentally appropriate guidance. This includes, but is not limited to, physical aggression, property destruction, and self-injury.

Notification to Families Prior to Expulsion or Suspension

Beginning July 1, 2023, upon enrollment of a child, a CSPP contractor must notify the child’s parents or legal guardians of the policy on disenrollment, including expulsion and suspension. This notification must be in writing and must inform parents on how they may file an appeal to the California Department of Education (CDE) in the event of the expulsion or suspension of a child.

In addition, beginning July 1, 2023, in the event a program suspends or expels a child:

• The CSPP contractor must issue the child’s parent or legal guardian a written Notice of Action (NOA), Recipient of Services and follow the requirements described in 5 CCR Section 17783, except as noted below.
  • Since the action to suspend or expel a child involves persistent and serious behaviors impacting the safety of children, the child may not attend the program during the appeal process.

• The effective date of the action may be no less than 24 hours after service of the notice. This is an exception to the notice periods in 5 CCR Section 17783(d)(1) through (3).

• The CSPP contractor must, at the same time as issuing a NOA, inform the parent or guardian in writing of their right to file an appeal of the action to expel or suspend their child directly with the CDE by submitting a written request for an appeal hearing to EEDappeals@cde.ca.gov, no later than 14 calendar days after receipt of the notice. Note: This is a change to current requirements. State law now includes a specific appeal procedure for suspension and expulsion of children in CSPP, which differs from the procedure required in 5 CCR Section 17785.
  

Suspension

Except in specific circumstances listed below, a CSPP contractor shall not:

1. Suspend a child due to a child’s behavior.
   
2. Encourage, persuade, or require a child’s parents or legal guardians to prematurely pick up a child due to a child’s behavior before the program day ends.
   

Suspension must only be used as a last resort in extraordinary circumstances when there is a serious safety threat that cannot be reduced or eliminated without removal of the child. To the greatest extent possible, a program must endeavor to ensure the full participation of enrolled children in all program activities.

Before a CSPP contractor determines that suspension is necessary, they must collaborate with the child’s parents or legal guardians and use appropriate community resources, as needed, to determine no other reasonable option is appropriate, and provide written notice through a Notice of Action to the child’s parents or legal guardians.

If suspension is deemed necessary, a CSPP contractor must help the child return to full participation in all program activities as quickly as possible while ensuring child safety by doing at least, all the following:

• Continuing to engage with the parents or legal guardians and continuing to use, and provide referrals to appropriate community resources, such as, but not limited to, an early childhood mental health consultant and the local resource and referral agency

• Developing a written plan to document the action and supports needed

• If the child has an individualized family service plan (IFSP) or individualized education program (IEP), the CSPP contractor, with written parental consent, must contact the agency responsible for the IFSP or IEP to seek consultation on serving the child
  

Note: If removing the child from a specific situation to calm down for a brief time is a strategy used by the contractor to return the child to full participation in program activities, then it must be documented in the child’s written plan and teacher to child ratio requirements must be followed at all times, meaning a fully qualified teacher must be present with the child at all times.

Expulsion

Except in specific circumstances listed below, a CSPP contractor shall not:

1. Expel or unenroll a child because of a child’s behavior.
   
2. Persuade or encourage a child’s parents or legal guardians to voluntarily unenroll from the program due to a child’s behavior.
   

If a child exhibits persistent and serious behaviors, the CSPP contractor must:

• Expeditiously pursue and document reasonable steps to maintain the child’s safe participation in the program, including, but not limited to, consulting with the child’s parents or legal guardians and teacher, and, if available, engaging an early childhood mental health consultant.

• Provide written notice of the process programs must follow to the parents or legal guardians of a child exhibiting persistent and serious behaviors. This must include a description of the behaviors of the child and the program’s plan for maintaining the child’s safe participation in the program.

• If the child has an IFSP or IEP, the CSPP, with written parental consent, must contact the agency responsible for the IFSP or IEP to seek consultation on serving the child.

• Consider, if appropriate, completing a comprehensive screening to identify the needs of the child, including, but not limited to:
  • Screening the child’s social and emotional development using resources such as, but not limited to, the “Ages & Stages Questionnaires: Social-Emotional” and the Centers for Disease Control and Prevention's (CDC) “Learn the Signs. Act Early.” materials
  • Referring the child’s parents or legal guardians to community resources
  • Implementing behavior supports within the program

If a CSPP contractor has expeditiously pursued and documented the above reasonable steps to maintain the child’s safe participation in the program and determines that the child’s continued enrollment would present a serious safety threat to the child or other enrolled children, the program may expel the child and must refer the parents or legal guardians to other potentially appropriate placements, the local childcare resource and referral agency, or other referral service available in the local community, and, to the greatest extent possible, support direct transition to a more appropriate placement. This determination to expel the child must be made in consultation with the parents or legal guardians of the child, the child’s teacher, and, if applicable, the local agency responsible for implementing the IFSP or IEP, as described above.

The CSPP program has up to 180 days to complete the expulsion process, as described above.

Community Care Licensing

Pursuant to Section 1596.893c of the Health and Safety Code (HSC), CSPP contractors may appeal a citation or civil penalty issued by the California Department of Social Services (CDSS) Community Care Licensing Division that is related to the behavior of a child, including the actions of the facility or its staff related to the behavior of a child, if the facility is in the process of complying with EC Section 8489.1. State law requires CDSS to withdraw all citations or civil penalties upon the presentation of evidence by the facility that it was in the process of complying with EC Section 8489.1.

Family Childcare Home Education Networks (FCCHENs)

This MB does not apply to licensed family childcare providers who provide services through a CSPP FCCHEN until the Joint Labor-Management Committee, established pursuant to paragraph (2) of subdivision (a) of Section 10424.5 of the Welfare and Institutions Code, makes recommendations for potential changes related to suspensions and expulsions.

Until recommendations have been made, contractors shall provide support to providers as needed to the extent children enrolled in a provider’s program have persistent and serious behaviors.

Data Collection

A CSPP contractor shall maintain records on all the following information:

1. The number of times contractors initiated the process required for suspension during a program year, and the outcome of each reported instance, including, if applicable, how long a child was excluded from the program.
   
2. The number of times contractors initiated the process required for expulsion during a program year, and the outcome of each reported instance.
   
3. The data collected pursuant to bullets (1) and (2) shall include for each child exhibiting persistent and serious behaviors, the following at a minimum:
   
   1. Age
      
   2. Sex
      
   3. Race and ethnicity
      
   4. Foster status
      
   5. Home language
      
   6. Disability, if applicable, and whether the child has an IFSP or an IEP
      

Beginning July 1, 2030, if funds are appropriated by the Legislature for this purpose, CSPP contractors will be required to provide this data to the CDE annually.

Background and Authority

Assembly Bill (AB) 752 (Chapter 708, Statutes of 2017) added EC Section 8239.1, requiring CSPP contracting agencies, in consultation with parents and guardians, to take specific steps before expelling or disenrolling a CSPP child. It was the stated intent of the Legislature by enacting AB 752 to significantly reduce the expulsion or disenrollment of children from the CSPP because of challenging behavior.

AB 752 also added HSC Section 1596.893c, which requires the California Department of Social Services to consider, in determining whether to issue a citation or impose a civil penalty to a CSPP, whether the CSPP was in the process of complying with legal requirements set forth in EC Section 8239.1.

The 5 CCR section 17783 describes the due process requirements for contractors when there are changes to a family’s service agreement including proposed disenrollment from services, and the due process procedures for a parent or guardian to challenge a proposed disenrollment. The 22 CCR Section 101223 describes personal rights afforded to children attending licensed childcare centers, which includes licensed CSPPs.

The Individuals with Disabilities Education Act (IDEA) and related regulations, provide procedural safeguards to any student with a disability or suspected of being a student with a disability as defined by the IDEA (i.e., with an individualized education program (IEP)). Prior to making any decisions to change the student’s placement (e.g., suspend for more than 10 days or to expel), the IEP Team must meet to determine whether the student’s conduct was caused by, or had a direct and substantial relationship to the students’ disability or whether the student’s conduct was a direct result of the LEA’s failure to implement the IEP. (See Section 300.530, of Title 34 of the Code of Federal Regulations).

AB 2806 (Chapter 915, Statutes of 2022) revoked EC section 8239.1 in its entirety, and replaced that section with EC sections 8489 and 8489.1. EC Section 8489.1 updated the requirements around expulsion and added new requirements limiting suspension in the CSPP. EC Section 8489 added definitions of suspension, expulsion, and persistent and serious behaviors, to further specify which exclusionary practices are no longer acceptable.

AB 2806 allows the CDE to implement EC Section 8489.1 through MBs or similar letters of instruction until regulations are filed with the Secretary of State. The CDE is required to issue such guidance on or before December 31, 2023.

Further, AB 2806 amended EC Section 8243, to update the requirements for Early Childhood Mental Health Consultation (ECMHC) services and to expand who can provide ECMHC services.

Resources

The following are available resources to support CSPP contractors, staff and families regarding children with challenging behavior.

Material Resources and Information

• Building Environments that Encourage Positive Behavior: The Preschool Behavior Support Self-Assessment: https://www.naeyc.org/resources/pubs/yc/mar2016/building-environments-encourage-positive-behavior-preschool
  
• California Collaborative on Social Emotional Foundations for Early Learning (CA CSEFEL): https://preventingchildcareexpulsionca.org/
  
• For CDE resources for early education contractors, families, and the preschool community; visit the Early Education Division (EED) Publications web page at https://www.cde.ca.gov/sp/cd/re/cddpublications.asp; or contact your assigned EED consultant. Please see the Contact Information section below for a list of EED consultants.
  
• The CDE Special Education Division can be reached by email at specedinfoshare@cde.ca.gov or by phone at 916-445-4613.
  
• Creating Equitable Early Learning Environments for Boys of Color, a CDE publication: https://www.cde.ca.gov/sp/cd/Re/documents/boysofcolor.pdf
  
• Joint Policy Statement on Suspension and Expulsion in early childhood education from the U.S. Department of Health & Human Services (HHS) and the U.S. Department of Education: https://eclkc.ohs.acf.hhs.gov/publication/understanding-eliminating-expulsion-early-childhood-programs
  
• Office of Head Start Early Childhood Learning and Knowledge Center resources: https://eclkc.ohs.acf.hhs.gov/browse/tag/suspension-expulsion; contact the Center by phone toll-free at 866-763-6481, Monday–Friday, 8 a.m. to 6 p.m. EST, or by email at HeadStart@eclkc.info.
  
• Preventing Suspensions and Expulsions in Early Childhood Settings: An Administrator’s Guide to Supporting All Children’s Success: http://preventexpulsion.org; Accessed from: SRI International: Menlo Park, CA.
  
• Resources Related to Reducing Suspension and Expulsion Practices in Early Childhood Settings: https://www.acf.hhs.gov/ecd/child-health-development/reducing-suspension-and-expulsion-practices/resources
  
• Standing Together Against Suspension & Expulsion in Early Childhood: Resources: https://www.naeyc.org/standing-together-against-suspension-expulsion-early-childhood-resources
  

Training or On-Site Technical Assistance or Coaching

• California Collaborative on the Social and Emotional Foundations for Early Learning (CA CSEFEL): https://cainclusion.org/teachingpyramid/; contact via email at workingtogether@wested.org
  
• California Early Childhood Online (CECO): https://www.caearlychildhoodonline.org/
  
• California Preschool Instructional Network (CPIN): https://cpin.us/
  
• Infant and Early Childhood Mental Health Consultation Network: https://iecmhcnetwork.org/
  
• Quality Counts California (QCC): https://qualitycountsca.net/
  

Contact Information

If you have programmatic questions related to this MB, please contact your assigned EED, Program Quality Implementation (PQI) office regional consultant. The EED, PQI regional consultant directory can be accessed at https://www.cde.ca.gov/sp/cd/ci/assignments.asp.

If you have fiscal questions about the information in this MB, please contact your assigned Early Education and Nutrition Fiscal Services (EENFS) fiscal analyst. The fiscal analyst directory can be accessed at: https://www.cde.ca.gov/fg/aa/cd/faad.asp.