Functional Behavioral Assessments and Behavioral Intervention Plans: Review of the Law and Recent Cases

Brigham Young University Education and Law Journal, Jun 2017

By Cynthia A. Dieterich, Nicole D. Snyder, and Christine J. Villani, Published on 06/30/17

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Functional Behavioral Assessments and Behavioral Intervention Plans: Review of the Law and Recent Cases

Cynthia A. Dieterich, Nicole D. Snyder, and Christine J. Villani, Functional Behavioral Assessments and Behavioral Intervention Plans: Review of the Law and Recent Cases Functional Behavioral Assessments and Behavioral Inter vention Plans: Review of the Law and Recent Cases Cynthia A. Dieterich Nicole D. Snyder Christine J. Villani Recommended Citation Part of the Educational Assessment; Evaluation; and Research Commons; and the Education Law - Commons I. INTRODUCTION “The ability to ask the right question is more than half the battle of finding the answer.” ―Thomas J. Watson (Former Chairman and CEO, IBM)1 Educators call upon students to ask questions as a means to evaluate academic, social and emotional growth. Student answers provide educators with data associated with each student’s development. Data provides educators with a means to ask new questions to gather additional data that further contributes to an understanding of student progress.2 This question and answer process occurs within the intertwined mechanisms of a Functional Behavior Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) beginning with the 1997 reauthorization of the Individuals with Disabilities Education Act (“IDEA”), which mandated an FBA and BIP as part of the multidisciplinary evaluation and Individualized Education Program (“IEP”).3 Early legal studies of FBAs and BIPs investigated the * Cynthia A. Dieterich is an Assistant Professor of special education in the Department of Leadership and Literacy at Sacred Heart University in Fairfield, CT. † Nicole D. Snyder is an associate at Latsha, Davis, Yohe & McKenna, P.C. in Exton, PA. ‡ Christine J. Villani is a Professor of Elementary Education at Southern Connecticut State University in New Haven, CT. 1 JOEL WEISS, THE QUOTABLE MANAGER: INSPIRATION FOR BUSINESS AND LIFE 81 (2006). 2 20 U.S.C. § 1414(d)(3)(B)(i) (2012) (“[I]n the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”). 3 20 U.S.C. § 1414(d)(1)(A). 196 B.Y.U. EDUCATION & LAW JOURNAL [2017 extent to which school leaders were familiar with FBAs and BIPs,4 identified implementation strategies based on limited case law,5 advocated for a mandate to aid students with complex mental health needs,6 and provided a general legal overview.7 In response to some of those earlier studies, more recent studies now empirically analyze state special education laws,8 advocate the use of FBAs to support students in urban settings to avoid juvenile detention,9 provide a legal rationale for using FBAs and BIPs as a framework to determine nonpositive interventions,10 and use both mechanisms to dismantle the school-to-prison pipeline.11 This is because the intent of BIPs and FBAs is to address and correct student misconduct and discipline before either escalates in severity or necessitates a serious disciplinary response (i.e. expulsion, etc.).12 Many schools have punitive-focused disciplinary policies and procedures that can have negative impacts on students with special needs.13 However, the added procedural safeguards provided through FBAs and BIPs could potentially have a meaningful impact on fighting the school-to-prison pipeline.14 Additionally, FBAs have undergone a rather dramatic evolution considering they were initially required in “limited situations of 45-day placements for weapons and/or illegal drugs.”15 However, recent cases and commentary reveal that FBAs and BIPs address a wide range of behaviors—from aggressive and externalizing behaviors to internalizing, isolating, or school- and task-avoidance behaviors.16 Addressing a broad spectrum of behaviors rather than exclusively evaluating students with violent or illegal activity affords school leaders the opportunity to meet the needs of all children with behavior problems. In addition, implementing FBAs and BIPs across a wider range of behavior problems than was originally intended by the law aligns with the intent of FBA and BIP practices within social sciences—that is, to systematically identify the underlying cause of problematic behaviors and to create positive behavioral interventions to develop socially appropriate responses.17 An increase in prosocial responses minimizes behaviors that are often associated, at least in part, “with lower academic achievement and reduced participation in positive post-school experiences such as employment, secondary education and independent living.”18 Cannon, Gregory, and Waterstone affirm the problem of children with behavior problems: [E]vidence shows that these students are also more likely to be suspended or expelled than their classmates. A combination of lower achievement and frequent disciplinary removals sets the stage for these students to drop out of school at rates that are significantly higher than the general student population. Both during school and after they lea (...truncated)


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Cynthia A. Dieterich, Nicole D. Snyder, Christine J. Villani. Functional Behavioral Assessments and Behavioral Intervention Plans: Review of the Law and Recent Cases, Brigham Young University Education and Law Journal, 2017, Volume 2017, Issue 2,