Season 3: Episode 11: Alphabet Soup for Educators- FBAs, BIPs, and the IDEA!


What is a functional behavior assessment? When is one required?  How is this different from a Behavior Intervention Plan? Lisa Woloszynek and Miriam Pearlmutter are joined by John Moenk, a legal intern and former school administrator, to discuss what federal law mandates when it comes to students with behavioral challenges. School administrators address misconduct on a daily basis, but some districts are more proactive and successful while others continue to struggle. This episode focuses on how to develop and implement behavior intervention plans (including conducting FBAs) that are meaningful and effective as opposed to perfunctory and redundant. We practice law at Walter | Haverfield in Cleveland, Ohio, and we welcome your suggestions and comments.

View Podcast Transcript

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Miriam: Welcome back to Class Act. Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter  Haverfield in Cleveland, Ohio. Every few weeks, we get together, we talk about the latest legal developments in education law, our legal developments that affect school board members, school administrators, teachers, just really anybody who works in the districts with the students.

Lisa: Today, we’re going to dive into some issues regarding behavior management, looking at functional behavior assessments and behavior plans and when districts need to be conducting those and implementing them and some common questions that we get in those areas. Today, we also have John Moenk, one of our law clerks who is a third-year law student joining us. John also has worked in special education and as an administrator in the past. He’ll be giving us some of that insight in our discussions as well. Welcome back.

Miriam: Welcome.

John: Thanks for having me again.

Miriam: Excellent. As we’ve previously discussed, I think you know we touched upon discipline fairly early on in our podcast series. I think it was in Season One, maybe Episodes 13, 14 and 15. We talked about discipline of general education students and we talked a little bit about special education students as well. Just to give some background to our audience, all students are entitled to due process. That means when a child is going to be suspended or expelled or will be missing a significant amount of school or some amount of school, that child is entitled to due process and that typically refers to a notice and a chance to respond to the allegations and there are quite a few legal protections that that student is entitled to. That applies to students who have special education needs and also students who do not. But today’s podcast episode, we’ll talk about additional protections that special education students are entitled to. So in past episodes, we’ve discussed discipline for special education students and general education students. As you know, all students are entitled to due process. We discussed these in Season One, Episodes, 13, 14 and 15. If you want more detail on due process and manifestation determinations, I recommend that you review those episodes in season one. Today, we’ll be talking more about behavior assessments and intervention plans.

Lisa: Absolutely. Today we’re really going to focus on students with disabilities who are eligible under the IDEA. We are going to make a little bit of a distinction. Everything we talk about today does not necessarily correlate for students under section 504. Do know that just as a caveat as we move forward.

John: As we get into a functional behavioral assessment, when is one required? When is an FBA required?

Lisa: That’s a great question. As Miriam mentioned earlier, students with disabilities do get their general due process protections, but they also have a right to other special ed protections, including a manifestation determination. If a child with a disability has been removed from the typical environment for more than 10 days, and there’s nuances to how you calculate that and you can go back and listen to episodes about those pieces as well. But you’ve gone through that process. The teams met, the teams done manifestation determination and has determined that the conduct the discipline is stemming from is a result of that child’s disability is because of that disability, it’s then determined to be a manifestation. That is going to mean that the team needs to conduct a functional behavior assessment if there isn’t one already and develop an appropriate behavior intervention plan. However, if they’ve already conducted a functional behavior assessment, they’re at least going to have to look at the current behavior plan and see if they need to update that. If there’s anything they need to adjust or anything they need to look at additionally to what’s covered in there.

Miriam: I just want to clarify maybe and summarize what I hear you saying. After a student has been disciplined, if the child has an IEP or has special education needs under the IDEA, the team has to meet and determine whether the behavior leading to the discipline was a manifestation of the child’s disability. If it was, then the district is limited in the kinds of discipline that it can meet out. In addition, separately from the discipline discussion, in addition, the IEP team is charged with figuring out how to improve that child’s behavior. That makes sense because we don’t want students just to continue acting out, even if it’s because of their disability. We as a society, we want that child to be able to function in the classroom. The IEP team separate from making disciplinary decisions or weighing in on whether the child can go back to the regular classroom or not. Separate from that, the IEP team has an important job and that’s to figure out how does this child make progress in behavior from here on going forward. I think that’s where the functional behavior assessment comes in. A functional behavioral assessment essentially is an observation. Is an observation conducted by a behavior specialist who looks to see what is the purpose of that behavior? Why is this child hitting or kicking or yelling or acting out in other ways? What is the purpose of that behavior and how can we substitute positive behaviors, behaviors that we want to see for those negative behaviors.

Lisa: Right, exactly. Keep in mind too as we talk about this. This is when they’re required. There’s other times that absolutely the team should be talking about them in developing functional behavioral assessments or a behavior intervention plan as a result. Certainly, students who are not identified under IDEA can still have an FBA and a BIP.

Miriam: Yes, absolutely. Don’t necessarily wait for the child to be suspended or expelled. If you’re seeing challenges in the classroom, be proactive. Invite a behavior specialist to talk to the parents and get consent to do a functional behavior assessment and see what’s going on. That person, the behavior specialist could be somebody that already works in your district and has experience in conducting these kind of assessments or it could be a consultant outside the district, which it can be very helpful sometimes.

Lisa: I do want to point out when you’re speaking of behavior specialist. Functional behavior assessments do not always have to be conducted by– I think when people hear that term, they think of like a BCBA or certain certifications. It doesn’t necessarily have to be that type of certification. It can be your trained staff. Sometimes districts have intervention specialists who are trained.

Miriam: Or school psychologists.

Lisa: Or a school psychologist, but you are going to have to certainly look at who’s trained to conduct it and needs to be conducted by somebody who is. There are going to be scenarios where you may not want your intervention specialist or school psychologist to complete this. You do want to bring in maybe a consultant or a BCBA or somebody who does have heightened certifications in behavior because of the nuances of the conduct.

Miriam: That fresh set of eyes or somebody the parent maybe trusts more if there’s trust issues.

Lisa: The other thing I wanted to point out too is, even if you do have a child who is identified under IDEA and you haven’t reached the point where you need to do a manifestation determination, if you’re seeing repetitive and interfering behavior, not only are you obligated to address the behavior if it’s an area of need, but you also need to look at, is it interfering with other academic services, other learning. Looking at the FBA and the BIP well before you get to a manifestation determination may certainly help you even reach that point. Really districts and teams need to be discussing that and acting in a proactive way, not just taking a seat back and saying, “I have 10 free days. I don’t have to do one yet. I don’t need to do anything to address this behavior.”

John: I think proactive FBAs also help one, with training of staff. The more they get them done, the more they’re used to them. That also helps keep a small behavior from becoming a large behavior as you’re addressing them before they’ve escalated.

Lisa: Right.

Miriam: Lisa, can you just clarify to our audience the difference between an FBA and BIP or a B-I-P?

Lisa: Yes, absolutely. An FBA is your Functional Behavior Analysis. That’s actually basically your evaluation component. It’s where you’re defining in very specific terms, in measurable terms what the behavior and conduct is that you’re looking at so that you can gather data and figure out what might be causing that behavior. You need to know what’s causing it to be able to determine what interventions are most appropriate. Those interventions are what are going to go into the Behavior Intervention Plan or the BIP that we’re referring to.

Miriam: Also the BIP is Behavior Intervention Plan.

Lisa: We’ll dive into a little bit of how to develop those in some key issues we see in that. But before we go too far with that, I do want to make sure we point out too that not just in response to discipline FBA and BIPs too may be a part of your actual initial or re-evaluation of a child with a disability, especially if you’re looking at an area of like emotional disturbance, often you really do want to have that component, especially if the emotional disturbance displays in a way that is externalizing behaviors, you’re certainly going to want to color that data through an FBA through your evaluation process. Oftentimes, we see those pieces missing. Sometimes we only see rating scales that won’t necessarily give you the data piece that you need to really get at the core of what’s causing behaviors. I’m sure you can speak to this and application too.

John: Yes. You nailed it there though.

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Lisa: Thanks.

John: There is a consent portion to FBA if you want-

Lisa: Yes, that is super important.

Miriam: Definitely. Consent is important and FBA is something that you’re going to need parental consent for it because it is an assessment. You should not ever be conducting an FBA without that written consent from the parent. You should also document attempts to obtain that consent. Sometimes a parent will refuse consent. Will say, “No, I don’t want another observation of my child. I definitely don’t want somebody in the classroom watching him.” For whatever reason, the parent will refuse to give consent. The districts should definitely document that because you want to have that in a prior written notice to the parent. Later on, if the parent says, “How terrible is this? This district didn’t conduct an FBA,” then you can say, “We tried but here’s some documentation showing that we couldn’t get consent.”

Lisa: Definitely be cautious too to not get in the pitfall of because parents won’t give you consent that you just do nothing.

Miriam: Right.

Lisa: If you’re aware of things, especially from your prior evaluations or just the observable behavior that everybody on the team has already documented, you can still put in some interventions if you have information that leads you there. Have you seen that in application as far as what information the team can have, that they can at least try some things.

John: Yes. We’ll touch base on that a little bit later in the BIP and FBA itself, but just giving them the information ahead of time, if you will, allows them to develop those proactive strategies, that maybe it’s not even a behavioral intervention, it’s a trying to take out the sensory input or the– we call it positive reinforcement when you add a stimuli and you get some. Maybe it’s a treat or extra time or stuff like that or, also the negative reinforcement, which is misunderstood. I think that people generally think of like punishment, but it could be something else. It could be reducing the lights, putting a blue filter over. You’re reducing that stimuli to try to get– those are coming in beforehand to try to remove that behavior ahead of time.

Lisa: They could be environmental things. They could be teaching strategies. It wouldn’t necessarily end up in a behavior intervention plan at that point since you don’t have the FBA, but you can still try some different things to help support that student.

Miriam: Now, so Lisa, an FBA is not always necessary, right?

Lisa: Right. Well, not so much. The FBA you need to conduct when you really need that information to figure out the core reason of the behavior, to develop your plan. The piece that I see districts get caught up on too is whether or not they actually need the behavior plan. Especially for students with a disability, they have an IEP. Do they need to have a separate behavior document? The answer to that is not necessarily all the time, do you need to have two separate documents. Now if you have behavior identified as a need, you do need to address that. So that’s going to be through one of those modes. It may be the behavior plan or it may be through-

Miriam: Like a goal.

Lisa: It could be a goal. It could be a specially designed instruction and then your accommodations, but it is going to need to be documented somewhere. Paperwork wise, it doesn’t necessarily have to be one or the other. Well, it does have to be one or the other, but it doesn’t have to be one of those specifically, if that makes sense. We also have some circuits out there that have expressed and supported that, that a parent can’t just make a claim and say, “You didn’t provide BIP and didn’t address my child’s behavior concerns because you didn’t have a formal BIP,” when the IEP appropriately addresses the behavior, appropriately provide services and supports for it. That will be defensible.

Miriam: A court does not necessarily require a BIP, a Behavior Intervention Plan for every child that has an emotional disturbance, for example, or other kinds of disability, as long as the district is somehow addressing those behavior challenges in other ways. Is that right?

Lisa: Right. Keep in mind too, no matter where you’re documenting this, you still also need to monitor progress for it. Just because you might not have a specific behavior goal in the IEP, you are going to have probably strategies and a goal tied to the BIP and you need to also be monitoring progress for that, revisiting that on a regular basis to determine if it’s working and documenting progress that way, almost as you would as if you did have an IEP goal and objectives and data collection.

John: The whole point of these two working together is to reduce this problematic behavior and increase the socially acceptable behavior. If you can’t prove that through documentation, it’s, what are you doing?

Miriam: Right.

Lisa: Right. Also remember too, if you have a BIP, that doesn’t mean you’re not going to ever do an FBA again either. You very well may find, “Okay, this plan isn’t working,” or because of the functional behavior assessment, we thought the child was starting to avoid these tasks in here. That doesn’t appear to be the reason so we need to go back and get more data and look at, “Okay, maybe there’s another underlying reason for the conduct.” Don’t be afraid to revisit those too, and you should when appropriate. Let’s dive in for our listeners into the developmental issues that we see with these.

Miriam: Let’s talk about what an FBA looks like and how to develop one, because we’re just discussing when we need it and why. What does it actually look like? What does a functional behavior assessment look like? First of all, special education law does not define that term. There’s no neat and clean definition, but typically, IEP teams are required to address the various situational, environmental or behavioral circumstances that come up in individual cases. Basically, the functional behavior assessment has to take a look at whatever is going on with that child too that results in this behavior. That could be like John mentioned before, environmental stimuli, some kind of situational stimuli. Sometimes an FBA, a Functional Behavior Assessment, will look at antecedents and behaviors and consequences as well, but it all has to be data-driven. It has to be based on not the team’s feelings, not what the teacher feels in that moment about this child who may be very upsetting or annoying in his or her behavior. It’s a scientific document. It has to be based strictly on the data collected by the observer. Sometimes I know that we see some problematic FBAs. Sometimes a district is just done. They’re frustrated. The teachers are frustrated, the team is annoyed, and they’re just filling out this FBA document. Maybe they’ve preprinted it from somewhere, and they’re filling it out with like, “Well, why is the child doing this?” “Because he’s a naughty little boy.” That’s a silly example, but sometimes we do see FBAs that are less than rigorous in terms of their data collection quality.

Lisa: Yes. Sometimes we just see the team coming together and just documenting what they think, like, “Here’s my hypothesis,” and almost like in one session, writing an FBA and writing a BIP, and there was no actual assessment or data process. Be super cautious not to do that. Also, keep in mind too, an FBA, that data, it’s going to be through observations, it might be through some reading skills or assessments. They’re going to be multiple components of that. You’re really not going to be able to sit at, say, like a manifestation determination meeting and say, “Okay, it’s a manifestation, so let’s get out our papers, fill in this form, and we have the answer.” That’s really going to be initiating the process of collecting the data. Not that you ignore the data you already have, you’re certainly going to incorporate that, but you’re not going to be able to just reiterate that and not go through it as a process.

Miriam: That’s a really important point. We see some functional behavior assessments and behavior intervention plans that are perfunctory, that the team is just filling out what they already have assumed or they know or they think they know about the child. I’m just going to say this really bluntly, there’s no point to that. There’s no point to that because whatever you were doing is not working. Whatever you were doing for that child isn’t working, so don’t just fill in the paper with the– I don’t want to be more frustrated about this than—I’m not frustrated about it, but I do see sometimes this problem in districts where people are just filling out this paperwork, perfunctory, and not meaningfully. It needs to be meaningful.

Lisa: It’s a process. It’s actually providing information you need, not just the matter of, “Okay, we filled out the paperwork. We’re done here.” John, in your practice as an administrator, can you talk about some of the things you’ve seen in FBAs and BIPs that we should see in really quality documents.

John: The quality contents of the FBA, it’s going to be, as Miriam mentioned, interviews, observations, data, but to piggyback what you just went through, over time, it’s not going to be one observation because what if you went in there and there’s little Johnny, he’s having a bad day. You’re also going to want to have detailed data, including schedules of the day. Information from home too, because if you’re only looking at first period and thinking, “Man, he is a terror at first period,” and you know nothing else, your BIP is not going to take into account that he doesn’t have breakfast. He’s been up since 3:00 AM, stuff like that. That’s why those interviews from home are also important to see what they’re bringing in. One of my favorite analogies, it’s called ghosts. We all carry them with us. No one else can see them, but they’re there bothering you.

Miriam: That’s interesting.

John: I always think of making sure districts and educators, in general, understand that these kids are bringing stuff with them. An FBA, and this is extremely watered down, but it’s going to look at– Pretty much, the function will fall into either obtaining something or escaping something. It’s definitely much more thorough than that, but very watered down into those two umbrellas. Once you figure out the function, that’s when the BIP comes into play, and you’re going to be coming up with intervention. If it is to escape something, why is he trying to escape? Is it 11:30 and he’s starving?

Miriam: Or just the work is hard.

John: Right. The intervention is going to come from that. If we think the work is too hard, we’re going to reduce the amount of, is there any reason he needs to do all 20 math problems, or can he do 10? It has actually been proven that math worksheets go from easy to middle to hard. Maybe he does three easy, two middle, one hard. That’s still going to show that he’s grasping the concept. The quality BIP is going to have the interventions for that problematic behavior, but then also the… technically intervention…you’re coming in, but more the reinforcement for those appropriate behaviors.

Lisa: Keep in mind too, before you can even get to those interventions, and really even collect the data in FBA, you really have to operationally define the behaviors you’re looking at. So many times I see teams just write general conduct. If you don’t know what behavior you’re really trying to target, you’re not going to be able to get at the core of why it’s happening.

John: Absolutely.

Miriam: That’s a great point. I just want to say that whenever I see that in a behavior intervention plan, the definition of a behavior, I know that I’m going to be looking at a quality document. I really do.

John: It’s true.

Lisa: Yeah. I think we’ve already hit on to that it really needs to focus especially the behavior intervention plan on replacement behaviors, positive. Oftentimes, too. I see teams get stuck on, “Okay, we want to get rid of this bad behavior.” Well, yes, you do, but how can we also look at those goals and what skills you want them to gain? Do you want them to use positive coping strategies? Okay, let’s focus our goals on that, versus just reducing the outbursts.

John: These replacement intervention behaviors need to also be individualized?

Lisa: Yes.

John: Miriam’s appropriate attention-seeking behavior should look different than your appropriate and so those needs to correlate to the individual students.

Lisa: Still, keep in mind, too, we’ve talked about in many episodes, the Endrew F.  Supreme Court decision about kind of the standard of what districts have to show for the FAPE, that’s going to apply here too. It’s still going to be, what’s appropriately ambitious in light of this child’s circumstances. You really have to know that to be able to get to a place of providing appropriate services, addressing appropriate goals, providing appropriate strategies.

Miriam: In other words, so if you have a child, for example, who yells out, calls out every few minutes, for that child because of the severity of his challenges, maybe making progress is just going to look like calling out every hour instead of every few minutes. That is going to be an important consideration in developing your goals and your behavior intervention plan as well.

Lisa: Yes. Another thing I really want to make sure we hit on to is the implementation after you develop it. We don’t just write these behavior plans and then throw it in the cumulative file and say, “Okay, we’re done. We’re good.” A failure to develop and then implement an appropriate behavior plan can also turn into a denial of FAPE. We have to make sure those plans are then realistic and can be implemented, the staff that are involved they are trained, which isn’t just going to mean just the intervention specialist who is trained, just the behavior specialist. You’re going to have to make sure you’re considering who’s that child’s entire team, do we need to train a PE teacher? Do we need to train somebody in the right or in the hallway monitor or other staff? Or the administration?

Miriam: The lunch monitor.

Lisa: Right or the hallway monitor.

John: The administration.

Lisa: Yes, the administration.

Miriam: I can’t tell you how many times we’ll have a parent who says, “You know what, my child had a behavior intervention plan, but this hallway monitor didn’t know about it. When my child was behaving in this way, he was escalated. That’s why this whole crisis happened. If only you had followed the behavior plan, none of this would have happened.”

Lisa: Often they are right. That’s a hard thing to defend. I’m sure you’ve seen this in application in programs too as an administrator.

John: Yes, and part of my role was also as a district consultant. They’d bring us in and we train on how to follow behavior plans and implement them, and things like that. It was great because they included everyone you just listed the lunch, the specials, the paraprofessionals, the teachers, the gen ed teachers that weren’t even probably going to interact, but just in case, but the administrator was left out.

Miriam: Which by the way is the key person who when that child gets in trouble is issuing discipline.

John: Yes, in this instance, this kid told a friend on the bus, “I’m going home today, I got a new video game, I’m going to act up.” I asked the kid if he said that and he goes, “Yes, I’m going home.”

Miriam: He wanted to play a video game. I get it.

John: I can’t blame him for that, but so made sure the staff knew and the teachers were great. The parents were great. Everyone was great until he was in the lunchroom, using profanity and the principal came in and said, “You’re out.” [chuckles] I was like, “Oh no, the principal was left out.”

Lisa: There is your discipline decision, and disciplined and almost reinforcing the negative behavior instead of–

John: He got to go home and play his video game.

Miriam: That’s a good story showing how everybody has to be on the same page.

Lisa: Let’s just touch on really quick the key issue, kind of the takeaways for our listeners. One thing I don’t think we’ve mentioned quite yet is for those students who are not already identified under IDEA, when they do have FBAs and behavior plans in place, please do make sure you’re, one, monitoring those at regular intervals like any other student, but that also you’re looking at the level of services that are included in those behavior plans, because if they are getting services that suggest it’s basically specially designed instruction, you also a red flag for a child to find issue too. Just have that on your radar.

Miriam: Sometimes school districts provide these behavior intervention plans to children who are not yet identified as having special education needs.

Lisa: As you should, as a tiered intervention.

Miriam: Yes, and that’s a good idea because you always want to be proactive, but at the same time, if you have a child that really needs a detailed and intense behavior plan to be able to function in the classroom, maybe your teams should start thinking about, “Should we suspect a disability requiring an evaluation?” That’s a question that your team should consider if a child who has not yet identified needs a detailed behavior plan.

Lisa: One of the key things we’ve mentioned numerous times, just making sure you’re not rushing through this process, you’re not just jotting down this on the forum, that you’re really going through an interactive assessment process, having the appropriate people trained. Also, as we mentioned earlier too, making sure that you’re bringing in experts when you need to. Maybe you don’t have a BCBA on staff all the time, but because of this specific students’ conduct you really need to bring that person’s expertise and you really are obligated to do so when it rises to a level that you need that.

Miriam: BCBA is a Board-Certified Behavior Analyst.

Lisa: Yes. I think we’ve hit on the key FBA pieces. One last thing to mention too is you may be asked to provide an independent education evaluation for an FBA if a parent disagrees with it. Do know that that is a potential because it is basically another assessment just like your evaluation report.

Miriam: If you want to know more about IEEs or Independent Educational Evaluations, please tune in next time because that will be the topic of our next episode. We will be talking about Independent Educational Evaluations and all of the questions that school districts get when parents demand one. In the meantime, thank you so much for joining us again today, John.

John: Thanks for having me back.

Miriam: Thank you and please rate us on iTunes, Stitcher, wherever you get your podcast. Send us mail. We love fan mail. Have a great day!

Lisa: Thanks for listening!

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Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of the information contained in this podcast.