Compliance Corner – December 2023

By Cindy Soo Hoo, TAP Consultant csoohoo@ces.org

Addressing Student Behavior- What’s the Key-Perhaps. It’s and FBA and BIP (Part 1 of 2)

According to the National Center for Education Statistics, thirty-two percent of public-school teachers reported that student misbehavior interfered with their teaching, and thirty-seven percent agreed that student tardiness and class cutting interfered with their teaching during the 2020-21 school year.  These percentages were lower than in 2011–12 and 2015–16 (41 and 43 percent, respectively).  The marked decrease in reported student misconduct may be attributed to the coronavirus pandemic that resulted in students learning remotely or in a hybrid model.  These two models restricted access among students and educators.  Without the pandemic, it is believed these percentages would have been significantly higher.

However, according to Chalkbeat, a nonprofit news organization covering public education in communities across America, as recently as 2023, school districts across the country are seeing an uptick in the need for disciplining students due to school violence.  Lawmakers in various states are working on legislation to make it easier to suspend or expel students due to this increase.  This rise in school violence is believed to be attributed to lenient disciplinary policies including restorative practices that have been introduced and endorsed by various departments of education across the country.

Critics of this effort to suspend or expel students have expressed concern that school districts have not implemented restorative practices with fidelity and seek additional resources to be available to assist educators in implementing these practices.  They also express concern that these efforts to suspend or expel students will lead to a return to a zero-tolerance policy which has resulted in a large number of students being kicked out of school.  Currently, there are approximately 20 states that are passing laws that promote restorative practices.

Behaviors resulting in discipline involving suspensions (both in-school and out-of-school) and expulsions are reported as concerns by educators across the United States.  Students receiving special education services as well as students in other groups represented a vast majority of  these disciplinary consequences.  Students with disabilities are more than twice as likely to receive one or more out-of-school suspensions compared to students without disabilities, according to the U.S. Department of Education Office for Civil Rights.  As a result, schools across the country continue to grapple with policies and philosophical approaches to address these concerns.

One approach to addressing non-compliant behavior is the development of a Functional Behavioral Assessment (FBA).  The purpose of an FBA is to assist educators in determining the cause or function of a student’s misconduct.  It also assists school teams in determining if the student’s non-compliant behavior is due to a skill deficit.  Does the student possess the skills to demonstrate the wanted behavior?  If not, educators must provide instruction in teaching the skill.  Or, is it a performance deficit?  In other words, the student has the skills but fails to perform the wanted behavior consistently.  Data is collected during the times and settings when the unwanted behavior occurs.  This data is then analyzed to determine what purpose the misconduct serves for the student.  Should a Behavioral Intervention Plan (BIP) be warranted, the information from the FBA will provide pertinent information in planning how to address the unwanted behavior so it does not recur. 

There are times when a Functional Behavioral Assessment is required.  The Individuals with Disabilities Education Act (IDEA) requires an FBA be conducted if the removal of the student is due to disciplinary reasons and there is a determination that the student’s behavior was a manifestation of his/her disability:  

34 CFR §300.530(f)(1)(i) states:

Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must—

(1) Either—

(i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred…

However, there are many instances when a student’s violation of the student code of conduct does not result in a removal from school but does result in a disruption of the learning process.  In those instances, educators must act when the child’s behavior impedes their learning or that of others.  The IDEA specifically references areas that IEP Teams must address.  This section of the IEP is called Consideration of Special Factors.  Once such factor pertains to behavior.  It requires the IEP Team members to determine whether the student requires specific supports and/or services due to misconduct being displayed by the student.  The Individuals with Disabilities Education Act states: 

34 CFR §300.324(a)(2)

Consideration of special factors. 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 and supports, and other strategies, to address that behavior;

Typically, positive behavioral interventions, supports and strategies referenced in the IDEA regulations are addressed through an FBA and BIP.  The New Mexico Public Education Department (NM PED) Special Education Division has available a technical assistance manual that provides guidance as to when an FBA must be conducted as well as offering sample documents to school districts.  In Addressing Student Behavior:  A Guide for All Educators, https://webnew.ped.state.nm.us/wp-content/uploads/2018/03/Addressing-Student-Behavior-7.30.19.pdf,  the NM PED reiterates the requirements of the IDEA but goes a step further in stating that a BIP is the strategy for addressing non-compliant behavior.  A BIP is typically created when deemed to be warranted by an FBA. 

p. 9 states:  When behavior impedes the learning of the student or that of others, IEP teams must consider the use of positive behavior interventions and supports, and other strategies to address that behavior. A BIP that is integrated into the IEP is the strategy to address behavior.

When developing an IEP for a student, it is crucial that IEP Teams consider and address all aspects of a child’s unique needs.  If behavior is impeding that child’s learning or the learning of others, IEP Teams are compelled to address that behavior.  In doing so, IEP Teams are helping to meet its substantive standard of providing a free appropriate public education (FAPE) for that student.    

In this article, the first of a two-part series, we discussed the requirements of a Functional Behavioral Assessment from a compliance perspective.  In next month’s edition, we will explore the requirements of a Behavioral Intervention Plan.  For more information regarding the development of an FBA, I welcome you to visit the Cooperative Educational Services website.  There are trainings available that contain strategies for addressing behaviors that violate the student code of conduct as well as techniques for providing an educational environment that is conducive to learning. 

The information included herein is not intended to provide legal advice.  Should you need legal advice or guidance on any issue involving special education, please contact the appropriate person for your district.

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