New FBA Guidance

In November’s edition of School Law Notes, we wrote about The ABCs of Student Behavior Management: BIPs, FBAs, & PBIS. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS), however, almost simultaneously issued new guidance entitled, Using Functional Behavioral Assessments to Create Supportive Learning Environments (Guidance).

The Guidance reiterates OSERS’ long-standing guidance that a multi-tiered system of support (MTSS) and positive behavioral interventions and supports (PBIS) help schools implement positive, proactive, and preventative approaches to student behavior. It further states that functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) should be used as components of a schoolwide framework to support students to reduce exclusionary discipline.

The primary purpose of the Guidance is to promote more frequent use of FBAs to understand behaviors that interfere with learning and inform educators’ response to those behaviors, including appropriate instructional strategies or interventions.

The Guidance reviews what an FBA is and how it is conducted, as well as how to create and implement the resulting BIP.

Consent

The IDEA’s requirement of parental consent for a student’s initial evaluation and reevaluations, emphasizes that parental consent is required when an FBA is one of the assessment tools used in an initial evaluation or a reevaluation.

Notably, the Guidance states that parental consent is not required for an FBA for a student with a disability if:

• it is used “as a screening for instructional purposes or as a review of existing data;” or
• it is not conducted for the purpose of evaluating or reevaluating a student for eligibility or continued eligibility for special education and related services.

These consent exceptions are narrow and easily misconstrued, so they should be used with caution.

Discipline

The Guidance reviews the IDEA requirements for conducting an FBA when a student’s conduct results in a disciplinary change of placement, including an interim alternative educational setting. Parental consent is required to conduct the FBA in those circumstances.

FBAs and IEPs

For students whose behavior impedes their learning or that of others, an FBA can help identify appropriate behavioral interventions to be included in their individualized education plan. The Guidance suggests that the data gathered during the FBA process can inform a student’s present levels of functional performance, development of goals, and special education and related services. It also reminds schools that a BIP must be accessible to general and special education teachers, related service providers, and any other service provider who is responsible for its implementation.

Conclusion

When an FBA is used as an assessment tool as part of a student’s initial evaluation or reevaluation, parental consent is required. While the Guidance identifies FBA consent exceptions, those exceptions are narrow and should be used cautiously. Developing FBAs and BIPs for students whose behavior interferes with their learning or that of others is often best practice, and in some circumstances, may be legally required.