WHT Law

FBA/BIP Caselaw Update

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FBA/BIP Caselaw Update

NO LEGAL STANDARD IN FEDERAL LAW

There is no definition of FBA or BIP in the federal law. This is one of the main reasons there is so much confusion and disagreement. However, on its website guidance documents, the Illinois State Board of Education does provide some guidance regarding how an FBA needs to be developed, and what the BIP should contain.

In addition, many behavioral experts can help you develop sound FBAs and effective BIPs. The education of many students is enhanced with a good BIP based on a sound FBA, whether legally mandated or not. This does not mean that there is no definition of FBA or BIP. These terms have been used in professional circles for a long time, and certainly there is a general consensus among experts as to how an FBA ought to be done and how a BIP ought to look. However, no one’s definition and no one’s standards carry the weight of law.

Recognition that there is no set legal standard for an FBA or BIP came from the 7th Circuit in Alex R. by Beth R. v. Forrestville Valley Community Unit Sch. Dist. #221, 104 LRP 33610 (7th Cir. 2004).

In this case, the 7th Circuit judges searched for some definitions or standards for a BIP in the law, but stated that no definition existed. As a result, the Court concluded that the BIP offered by the school could not possibly have violated any legal standards. Although they did not say that the BIP was a good one, they felt that it was an area of expertise left to the school district. When asked by the plaintiff to find that the BIP violated the IDEA, the court stated:

“We decline the invitation. Although we may interpret a statute and its implementing regulations, we may not create out of whole cloth substantive provisions for the behavioral intervention plan contemplated by § 1415(k)(1) or § 1414(d)(3)(B)(i). In short, the District’s behavioral intervention plan could not have fallen short of substantive criteria that do not exist, and so we conclude as a matter of law that it was not substantively invalid under the IDEA.”

In Letter to Janssen, 51 IDELR 253 (OSEP 2008), OSEP reached a similar conclusion as the 7th Circuit. A school attorney had asked the department to advise “what a functional behavioral assessment is and should consist of and who can or must conduct the FBA.” OSEP responded: “Part B of the IDEA and the Part B regulations do not specifically explain what an FBA is or what components must be included in an FBA.” “The statute and regulations do not specify which individuals must conduct the FBA.”

AN FBA IS AN EVALUATION

In Harris v. District of Columbia, 561 F. Supp. 2d 63 (DDC 2008) The U.S. District Court of the District of Columbia found that a functional behavioral plan is an “educational evaluation,” and therefore the parents have a right to an independent functional behavioral analysis at the public’s expense if the parent disagrees with the school district’s evaluation. The court was persuaded by the parent’s argument that an FBA is considered an “educational evaluation” because it is central to the development of the IEP. The district court rejected the school district’s contention that the FBA is merely a tool to help students with behavioral, not educational problems. The district court’s decision is consistent with other recent decisions that refuse to distinguish behavioral from educational problems.

WHEN TO DEVELOP A FBA/BIP

1. District on “notice” of student’s behavioral issues; student not required to improve her own behavior

In Lauren P. by David and AnnMarie P. v. Wissahickon Sch. Dist. 48 IDELR 99 (E.D. Pa. 2007), failing to include a behavioral management plan in a 10th-grader’s IEP proved to be a costly mistake for one Pennsylvania district. Not only did the U.S. District Court, District of Pennsylvania order the district to provide compensatory education to the now 19-year-old student, but it directed the district to repay the student’s parents for private school expenses. The court observed that the district had clear notice of the student’s behavioral problems, which included tardiness and a failure to complete assignments, when it received a reevaluation report in December of the student’s 10th-grade year.

Rather than developing a BIP for the student, however, the district placed the onus on the student to improve her conduct. The court pointed out that IEP developed after the reevaluation indicated that the student needed to become more responsible, apply strategies learned in mainstream courses, and learn to concentrate on the task at hand. “These statements demonstrate the district’s failure to respond to deficiencies in previous IEPs and thus meet its responsibility to provide [FAPE],” U.S. District Judge Thomas N. O’Neill Jr. wrote. Noting that the 10th-grade and 11th-grade IEPs marked a continuation of the existing behavioral strategies that had failed the student in the past, the court determined that the district denied the student FAPE.

2. Develop IEP even if interventions in place

In Danielle G. v. New York City Department of Education, 50 IDELR 247 (E.D. NY. 2008) a New York Federal Court held that a student’s problematic behavior triggered a school district’s duty to conduct a FBA, even though the student’s teacher was able to redirect the student at times.

In this case Danielle, a second grader and a student diagnosed with Autism Spectrum Disorder, frequently became lost in her own thoughts and finger play. The special education itinerant teacher working with her was able to redirect Danielle when her focus strayed from classroom lessons. Although this teacher was able to manage the student’s behavior and help her refocus, Danielle still had difficulty completing assignments and organizing her books. The court relied on the plain language of the IDEA stating, the IEP team must, “in the case of a child whose behavior impedes the child’s learning or that of others,” consider the use of positive behavioral interventions in supports, and other strategies to address that behavior. Because Danielle engaged in self-stimulatory activity and was hyperactive, her behaviors impeded her learning and therefore an FBA was required.

3. Even if Behaviors are “Typical” For Disability

In Freemont Unified School District, 109 LRP 23265 (California State Educational Agency, February 20, 2009) an administrative law judge in California ordered a school district to reimburse parents for the cost of their unilateral placement after finding the district failed to assess the three-year-old’s behavior and develop a behavior intervention plan. The hearing officer found that a three-year-old child with Autism was engaging in tantrums at school related to his disability. The school district placed the child in a special day class, however the tantrums continued. The parents placed the student at a private placement after the district refused to provide additional services. The district argued that a behavioral assessment is unnecessary because the behavior was typical for a preschooler with autism. However, because the student’s behavior was related to his disability and impeded his ability to receive educational benefit, the hearing officer found the failure to develop a functional behavioral intervention plan deprived the child of an appropriate education under the IDEA.

4. When behaviors impede a student’s ability to access educational benefit.

In Redlands Unified School District, 49 IDELR 294 (California State Educational Agency, March 17, 2008) a California district committed a procedural violation by failing to conduct a functional behavioral assessment and develop a behavioral intervention plan. This procedural violation amounted to a denial of a FAPE because the failure deprived the student of educational benefit.

The hearing officer found that because an Autistic student’s problem behaviors ultimately prevented him from attending school, the failure to develop a behavioral intervention plan amounted to a denial of FAPE. In this case, the student’s behaviors did not decrease during the school year despite other interventions by the district and, in fact, the student’s behaviors escalated. By the end of the year, the student was under so much stress that he “curled up in a ball position on the floor of his classroom and would not voluntarily get up.”

As a result, the school district was ordered to provide compensatory education in the form of 430 hours of tutoring over the next two years and 25 hours during any ESY period that occurs during the next two years. In addition, the school district was ordered to provide 390 hours of Lindamood-Bell instruction to the student during school vacations or other times the school is in recess for more than a week. The district was also ordered to provide 25 hours a week of in-home ABA services for the upcoming school year for a total of 50 weeks. Finally, the district was required to contract with a qualified independent assessor to administer a functional behavioral assessment to the student.

WHEN YOU DO NOT NEED TO DEVELOP BIP/FBA

1. Student’s behavior is not voluntary

In Stanley C. v. MSD of Southwest Allen County Schools, 628 F. Supp.2d 902 (N.D. Ind. 2008) the Northern District of Indiana held that the school corporation did not violate the IDEA in failing to conduct a FBA or devise a BIP for drooling. The Court found that the student’s excessive drooling was not a voluntary behavior that required a BIP and, furthermore, even if it were, her “behaviors” were properly addressed via her IEP goals.

The Court relied on the fact that the evidence and testimony of record from both parties supported the BSEA’s conclusion that M.C.’s drooling was not a behavior to replace but rather was involuntary as a result of damage to her brain from her stroke.

2. Student’s school behavior “not serious” enough to warrant BIP

In the recent case of Rodriguez v. San Mateo Union High Sch. Dist., 109 LRP 72424 (9th Cir. 11/13/09), a school district was not required to develop a BIP for a student after he was arrested for stealing (taking beer from a supermarket) and had a problem with truancy. The 9th U.S. Circuit Court of Appeals agreed with the lower court and hearing officer that the student’s behavior was not “serious” enough to warrant a BIP. Pursuant to an agreement with a juvenile court, the student’s parent placed him in a private residential program. The parents filed for a hearing against the district to obtain funding for the residential placement, claiming that the district’s failure to develop a BIP after the student’s arrest amounted to a denial of FAPE.

Affirming the District Court’s ruling, the 9th Circuit stated that the student’s behavioral problems did not cause harm or a serious threat of harm to persons or property, as outlined in California regulations. Therefore, the student was not entitled to a BIP under state law. Nor did the parent provide evidence of other circumstances warranting a BIP under the IDEA. While the student’s truancy interfered with his learning, the district adequately addressed that issue in the student’s IEP.

CREATION OF AND IMPLEMENTATION OF BIPS/ FBAS

1. Ensure parents are part of the Development of the BIP

When developing the BIP, school districts need to ensure that parents are part of the process. In Belmont Pub. Schs., 49 IDELR 209 (SEA MA 2007) a Massachusetts district violated the IDEA when it developed a BIP that required a fifth-grader with ODD to earn his way back into his mainstream placement. The state hearing officer noted several problems with the district’s behavioral plan, and denied the district’s request to implement the plan as written. Specifically, the IHO faulted the district for allowing a small group of social workers and officials to decide the contents of the BIP rather than convening an IEP meeting to consider appropriate behavioral strategies for the student.

The IHO stated “The IDEA requires that parents be ‘members of any group that makes decisions on the educational placement of their child,'” especially given the fact that the BIP was written to remove the student from his mainstream classes. Concluding that the proposed BIP was not likely to be effective, the IHO ordered the district to convene the student’s IEP team and consider less-restrictive behavior strategies.

2. BIP should target all of the student’s behavioral needs.

In Department of Education, State of Hawaii, 5 ECLPR 127 (Hawaii State Educational Agency, March 6, 2008) an independent hearing officer held that Hawaii Department of Education had to reimburse a five-year-old’s parents for the private school expenses and for the 1:1 aide they hired to help ease the child’s transition to kindergarten because of a deficient BIP.

While the district did create a functional behavioral assessment and behavioral intervention plan, it failed to mention the child’s anxiety, hyperactivity and attention difficulties. “The FBA did not target all of the child’s behavioral needs and did not address serious behaviors that could affect the child’s learning and the learning of the child’s classmates.”

The parent prevailed in this case because the school district didn’t follow their own evaluations (BASC Survey), showing that the student had a variety of serious behavioral concerns. Each of the behavioral concerns impacted the student’s learning and behavior in the classroom. Since the FBA did not target all the student’s behavioral needs, the IEP was found not to provide the student with a free appropriate public education and therefore the district had to reimburse the parents for tuition for their private school.

3. Must be sufficiently specific.

In New York City Department of Education, 49 IDELR 270 (New York State Educational Agency, February 7, 2008)

A New York school district was found to have violated the IDEA by failing to collect enough data and provide enough specificity concerning this child’s target behaviors. Since the behavioral intervention plan did not state the frequency, duration, or intensity of these behaviors, nor did it describe the conditions or events that appeared to trigger the child’s outburst, the behavioral intervention plan was determined to be too vague to provide the student with any assistance.

The administrative hearing officer also took issue with the behavioral intervention plan because it did not describe appropriate behavioral interventions and instead stated that “the child would stop screaming hitting himself and tensing his muscles.” As a result, the child could not receive a meaningful educational benefit in a district program.

4. Must have a plan or strategy to improve behavior

In Student with a Disability, 49 IDELR 147 (Indiana State Educational Agency, January 3, 2008) an independent hearing officer found a district’s failure to develop appropriate behavioral interventions for a student with Autism amounted to a denial of FAPE. The student was placed in mainstream classes with two periods of special education support services each day. In this setting, the student engaged in disruptive and aggressive behaviors.

While the hearing officer took no issue with the student’s placement, she did fault the district for failing to conduct a meaningful functional behavioral analysis. In this case, the district merely enforced a “point system” that rewarded the student for good behavior while penalizing the student for inappropriate behavior. The hearing officer stated, “It was not enough to report that the behavior occurred and describe it; the purpose of an FBA is to dissect the behavior so as to plan the most effective method of eliminating it.” The hearing officer ordered the district to conduct an FBA and develop an appropriate BIP for the student.

5. Utilize BIP consistently, and as written

Even though the federal law does not mandate that BIPs or FBAs be done a certain way, a district can be found at fault for using behavior interventions not included in a student’s BIP. In Lake Pend Oreille (ID) Sch. Dist. 84, 51 IDELR 22 (OCR 2008) OCR determined that a school district discriminated against a third-grader with Asperger syndrome, ADHD and OCD, in violation of Section 504.

First, District staff told the parents they must waive FAPE or the District would press criminal charges after the student kicked a staff member. Specifically, the counselor asked the student’s mother to submit a letter stating that she agreed to keep the student out of school for the remainder of the school year. Second, the staff, including the principal, also the building Section 504 Coordinator, used inappropriate behavior interventions that were not included in the student’s behavior plan. On one occasion, he threatened to call police if the student did not calm down and stop crying.

Finally, OCR determined that the district did not provide sufficient training and guidance to the principal, as the person assigned to the role of Section 504 coordinator, to enable him to effectively carry out his responsibilities. A failure to ensure school administrators and other staff are well-versed in their Section 504 duties could result in multiple violations of the law, especially where behavior is concerned.

Similarly, in Guntersville City Bd. of Educ., 47 IDELR 84 (SEA AL 2006), an IHO determined that an Alabama district violated the IDEA by inconsistently implementing a 17-year-old student’s BIP. Concluding that the district’s failure led to the student’s arrest for threatening to assault his English teacher, as well as his subsequent withdrawal from school as part of a plea bargain, the IHO determined that the district denied the student FAPE and breached a settlement with the student’s parents regarding the management of the student’s behavior.

The IHO noted that the district did not conduct an FBA or document the nature of counseling provided to the student. The district also failed to follow the system of rewards and punishments set forth in the student’s BIP. Although the district took disciplinary action in response to certain incidents of misconduct, the IHO noted that other outbursts and disruptions were ignored. The IHO wrote: “The [district’s] actions and omissions obstructed the success of [the student],” “The special education director for the [district] recognized that children with behavioral problems have to be handled very systematically and in a very structured fashion for a behavior management program to work.”

In contrast, a Pennsylvania school district was not to be found at fault for calling the police where the BIP allowed the principal to do so. In B.L. v. Boyertown Area Sch. Dist., 52 IDELR 42 (E.D. Pa. 2009), a school principal summoned a state trooper in response to a grade-school student’s profanity, resulting in the student being cited for disorderly conduct.

The student’s parents argued that this action violated the student’s constitutional rights. The U.S. District Judge stated that while calling the police was “excessive,” doing so did not discriminate against the student because of his disability, because the student’s BIP gave the principal the broad discretion to contact police. Specifically, the BIP provided that if the student used profanity, he would be immediately sent to the principal.

However, even though the school district dodged a bullet in this case, due to a broadly written BIP, it is not “best practice” for a BIP to give school administrators vested authority that they already have, as a stipulated consequence in a BIP. The BIP should be used to improve student behavior. For example, After investigating the situation, the principal could ask the school counselor to speak with the student, assign a consequence, call the parents, or exercise his discretion to take other action.