Case Law for Functional Behavior Assessments and Behavior Intervention Plans: an Empirical Analysis
| Publication year | 2011 |
I. Introduction
An interrelated pair of procedures that have come into favor in the field of special education for proactively addressing the behavior problems of students with disabilities-which range from violence to self or others to extreme introversion or inattention-are functional behavior assessments (FBAs) and behavior intervention plans (BIPs). An FBA is a systematic process of identifying the purpose-and more specifically the function-of problem behaviors by investigating the preexisting environmental factors that have served the purpose of these behaviors.(fn1) Based on the foundation provided by FBAs, a BIP is a concrete plan of action for reducing problem behaviors, dictated by the particular needs of the student exhibiting the behaviors.(fn2) Special education experts regard an FBA as inseparable from an effective, relevant, and efficient BIP.(fn3)
The principal legal framework for providing special education generally, and FBAs and BIPs specifically, for students with disabilities is the Individuals with Disabilities Education Act (IDEA).(fn4) The IDEA requires school districts to provide each "child with disability"(fn5) with "free appropriate public education" (FAPE)(fn6) via an individualized education program (IEP)(fn7) in the "least restrictive environment" (LRE).(fn8) The Act includes detailed provisions for the content specifications for IEPs(fn9) and for the procedural protections for disciplinary changes in placement.(fn10) Each state educational agency (SEA) receives and distributes funding available under the IDEA and is responsible for monitoring compliance with the Act's various requirements.(fn11) The IDEA's primary dispute resolution mechanism is adjudicative, starting at the administrative level with an impartial hearing officer and, in states that opt for a second administrative tier, a review officer.(fn12) Federal and state courts have concurrent jurisdiction under the IDEA for judicial review of hearing officer decisions and, if applicable, review officer decisions.(fn13)
In its landmark decision under the IDEA,
The special education literature on FBAs and BIPs is full of rhetoric, research, and increasingly more detailed practical sources, but the legal literature specific to FBAs and BIPs is much more limited in both quantity and quality. Both of these intersecting literature streams reflect a notable misunderstanding of the legal requirements for FBAs and BIPs (i.e., the minimum that must be done) and fail to differentiate professional best practice (i.e., the optimum amount to do).(fn20) Moreover, a comprehensive and systematic analysis of the case law is missing.
This Article fills this gap by providing an empirical analysis of IDEA case law after reviewing the legal literature on FBAs and BIPs and synthesizing the legal framework of the IDEA. I propose that such a systematic synthesis offers two separable and parallel contributions to the field of special education. First, it shows practitioners and researchers in the field of special education the significant difference between the "should" of their professional norms and the "must" of the IDEA's legal requirements. Second, it informs adjudicators and policymakers in special education law of the need for more consistent and well-conceived legal standards for determining whether a student with disabilities is entitled to an FBA or a BIP and, if so, whether its contents and implementation are appropriate under the IDEA and its corollary state special education laws.
Part II of this Article provides a review of the literature concerning FBAs and BIPs, with particular attention to legal analyses. Part III provides an overview of IDEA legislation and, in particular, the 1997 and 2004 amendments that are specific to FBAs and BIPs. Part IV summarizes the method used for collecting and analyzing case law concerning these two interrelated behavioral techniques under the IDEA. Part V provides the results of this empirical analysis, and Part VI provides a discussion of these results. Finally, Part VII concludes that there is a need for a more consistent and coherent approach to the access, appropriateness, and implementation of FBAs and BIPs under the IDEA.
II. Literature Review
The perceived need for the FBA-BIP approach arose from the ineffectiveness of the early behavioral intervention approach, which had focused on imposing arbitrary consequential events upon the occurrence of a problem behavior.(fn21) Subjective opinion often shaped the diagnostic criteria used to determine the form of intervention-i.e., reinforcement or punishment.(fn22) This approach had several inherent shortcomings: (1) intervention often ignored an individual student's needs by overly emphasizing the topography of problem behaviors rather than exploring their triggers; (2) intervention success was temporary, as problem behaviors reemerged due to the failure to address preexisting factors; and (3) intervention ineffectiveness often led to the use of more restrictive, more intrusive, and more punitive interventions.(fn23)
To overcome these limitations, researchers shifted the focus of their conceptual discussion to the environmental factors surrounding problem behavior.(fn24) The resulting empirical research revealed that the environmental factors serving the particular purpose and function of a problem behavior maintained a topographically identical behavior.(fn25) For example, one student may exhibit aggression for the purpose of gaining a teacher's attention whereas another student may exhibit the same form of aggression to avoid difficult class instruction. The use of a detention room may assuage the aggression for the first student and aggravate it for the second student. Thus, these early studies illustrated the value of, and prompted the need for, a procedure for identifying and assessing the preexisting environmental factors that serve the purpose and function of the problem behaviors.(fn26)
In the first comprehensive analysis of a general model of FBA-BIP procedure, two separate teams of researchers developed and refined a concurrent assessment of the occurrence of problem behaviors under three to four test conditions containing different environmental factors, such as amount of attention and difficulty of instruction.(fn27) They found that the occurrence of aggressive behaviors was higher under a particular test condition, suggesting that the particular condition served the purpose of the behaviors.(fn28) Subsequent studies replicated and extended this FBA- BIP procedure across a wide range of student populations, target behaviors, and educational environments, leading to the development of more precise positive-reinforcement-based interventions and demonstrating an apparent decrease in the use of overly restrictive, intrusive, and punitive interventions.(fn29) Further research efforts are in progress to refine an FBA- BIP procedure that is more applicable to the school setting.(fn30)
Although research has not yet yielded one particular set of procedures as a proven best practice, special education experts recommend FBAs as the foundational steps of a two-pronged strategy that should include the following core components and culminate in a BIP: (1) operational definitions of problem behaviors; (2) descriptions of the assessment conditions that may reliably predict the occurrence and nonoccur-rence of problem behaviors; (3) descriptions of the consequence events that maintain problem behaviors; (4) direct observation of the problem behaviors across the assessment conditions; and (5) a BIP based on the analysis of this information.(fn31)
The legal literature addressing FBAs and BIPs is limited and, to a notable extent, is neither sufficiently complete nor accurate. The first legal analysis of FBAs or BIPs was a state-by-state survey study limited to FBAs after their initial recognition in the 1997 amendments to the IDEA.(fn32) The National Association of State Directors of Special Education (NASDSE) provided a brief summary of the survey results from "[forty-five responding] states and territories about policies, procedures and guidelines related to . . . [FBAs]."(fn33) Specifically, NASDSE reported that, in the wake...
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