This winter, the United States Department of Education’s Office of Special Education and Rehabilitative Services and the Office of Elementary and Secondary Education jointly released guidance on how school districts can use functional behavioral assessments to best support students.
To date, since the transition to the Trump Administration, this guidance has not been rescinded or modified by the United States Department of Education.
Functional behavioral assessments (“FBAs”) are used to identify and address problematic behaviors impacting a student’s ability to access an education. Often, FBAs lead to the implementation of behavior intervention plans (“BIPs”) so that a student can be better supported and redirected from negative behaviors.
The recently released guidance emphasizes the need to best understand student behavior “including how students’ lived experiences, such as peer pressure, poverty, social media, discrimination, and trauma, may impact behaviors that interfere with learning in the classroom” and use behavior interventions to support students rather than simply apply exclusionary discipline.
Here is a link to the recent guidance and below are some takeaways:
- The new guidance outlined general characteristics of an FBA, including, but not limited to:
- A “clear, specific, measurable, observable, and objective description of the behavior that interferes with learning.”
- The collection and analysis of direct data to record when a behavior happens, when a behavior does not happen, and an identification of triggering antecedents that can lead to the behavior as well as a description of the consequences or events that take place in response to that behavior.
- Data should be collected from observations, surveys, and interviews, and identify the duration, conditions, and location associated with the problematic behavior.
- A complete FBA identifies the required skill development that is necessary to further support a student.
- A complete IEP should also identify a list of proactive next steps, and commonly recommends the implementation of a BIP.
- BIPs should be made available to each regular education teacher, special education teacher, related service provider, and district staff member who is responsible for supporting and instructing the student.
- The new guidance notes that FBAs should not solely be used in response to students’ safety-related behaviors. FBAs can be used to better understand and respond to all behaviors that interfere with learning, not just behaviors that are safety-related (such as aggression and elopement). Further, the guidance makes clear that FBAs are not just for students with disabilities. FBAs can be used to improve upon the supports offered to students who are not receiving specialized instruction or accommodations. In the context of special education, FBAs should not just be used to develop BIPs but can also provide information about the student’s present levels of performance. Information gathered from FBAs can aid in writing goals for a student’s special education services and inform District teams on how to develop and implement appropriate instructional strategies, special education goals, and provide appropriate services and accommodations.
- Consent Overview: The new guidance states that although an FBA could conceivably be used as a screening tool to inform instructional practices, consent is going to be required if the FBA is conducted as part of an initial evaluation or reevaluation under the IDEA – evaluating the nature and extent of the special education and related services that a student needs. The new guidance states that if an FBA is conducted as a screening for instructional purposes or as a review of existing data, including classroom observations, the IDEA does not require parental consent. However, keep in mind that if a board certified behavior analyst (“BCBA”) is going to conduct the FBA, the BCBA will require consent per the BCBA’s ethical obligations that are mandated by the Behavior Analyst Certification Board, regardless of whether the FBA is being offered as an evaluation or targeted assessment.
- The new guidance also notes that an FBA cannot be used to delay or deny an evaluation of a student suspected of having a disability under the IDEA or Section 504.
- The new guidance recognizes D.S. v. Trumbull Board of Education, 975 F.3d 152 (2d Cir. 2020), is the controlling authority in the U.S. Court of Appeals for the Second Circuit and must be followed in the States subject to its jurisdiction, such as Connecticut. However, the new guidance disagrees with the Second Circuit that an FBA cannot be a component of an initial evaluation or a reevaluation, or that an independent educational evaluation request requires disagreement with the entire comprehensive evaluation rather than with any area of evaluation.
Have questions? Do not hesitate to reach out! Our education attorneys are available to provide training, policies/regulations, and consultation with respect to the new guidance on FBAs.