Communiqué

In This Issue

Professional Practice

State Laws for Functional Behavioral Assessments and Behavior Intervention Plans

By Perry A. Zirkel

Volume 45 Issue 3,

By Perry A. Zirkel

The legal literature specific to functional behavioral assessments (FBA) and behavioral intervention plans (BIP) has focused almost entirely on case law (e.g., Dieterich, Villani, & Bennett, 2003; Losinski, Katsiyannis, & Ryan, 2014; Poucher, 2015; Zirkel, 2011a) or federal legislative advocacy (e.g., Ober, 2014; Poucher, 2015). In the only systematic and objective canvassing of state laws, Zirkel (2011b) identified 31 states with legislation or regulations that exceeded the requirements of the IDEA for FBAs and/or BIPs in the K–12 public school context, finding that most of these provisions were notably limited in scope and strength. The leading state by far was California, with detailed definitions of FBAs and BIPs and the broad trigger of when the child's behavior impeded the learning of the child or others. The purpose of this article is to update Zirkel's (2011b) results, including the identification of any state law provisions that his search–primarily due to differences in terminology–missed.

Framework

Per Zirkel's (2011b) template, the legal foundation consists of the rather minimal national requirements of the Individuals with Disabilities Education Act (IDEA, 2014). More specifically, as Zirkel (2011b) explained in more detail, the IDEA (a) does not define either an FBA or a BIP, and (b) only requires them in tandem with a manifestation determination upon a disciplinary change in placement, which is defined as more than 10 consecutive days of removal or the equivalent pattern of cumulative days in a school year. Within this limited disciplinary context, the nuanced difference is that if the defensible determination is that the conduct at issue is a manifestation of the student's disability, the IDEA (2014) has an unqualified requirement for an FBA and a BIP, whereas for the opposite determination, the IDEA requires “as appropriate, a [FBA], behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur” (§1415[k][1][D]-[E]).

However, in clear contrast, when the child's behavior impedes his or her learning or that of others, the IDEA only requires the IEP team to “consider the use of positive behavioral intervention and supports, and other strategies to address that behavior” (§1414[d)[3][B][i]). In the IDEA regulations' commentary (2006), the U.S. Department of Education's Office of Special Educational Programs (OSEP) explained that for this learning-impeding situation, FBAs and BIPs “are not required components of an lEP” unless state law provides otherwise (p. 46,629). In subsequent commentary, OSEP added that the IDEA does not define FBAs or BIPs and defers to state law for related issues, such as who is qualified to conduct FBAs or BIPs (Letter to Janssen, 2008). Although these OSEP interpretations are not legally binding, the subsequent case law (e.g., Zirkel, 2011a) generally confirmed this interpretation.

Using this same foundational framework of the IDEA, this updated analysis sought to address two questions:

What is the current extent of state statutes and regulations specific to FBAs and BIPs in the K-12 public school context addressing the sub-issues of (a) when, (b) who, (c) what, and (d) how?
Elaborating on item 1c, what is the extent that these state laws defined (a) FBAs and (b) BIPs in relation to the components Zirkel (2011b) derived from the professional literature?

Updated Research Results

The search procedure started with the state law citations in Zirkel (2011b) but extended to a comprehensive Boolean search of the Westlaw database of (a) state statutes and (b) state regulations, using various search strings including “school” & “functional behavior! assessment” OR “functional behavior! analysis” OR “behavior! intervention plan” OR “behavior! management plan” OR “behavior! support plan” (with “!” being the root expander in the Westlaw search system). Within the resulting citations, the primary selection criteria were (a) containing FBA or BIP definitions, triggers, or procedures; and (b) applying to the K–12 school context. Although the dividing lines are not consistently clear, the exclusions consisted of FBA- and BIP-specific state law provisions (a) for personnel preparation and licensure (e.g., Minn. R. 8710.5050); (b) for specialized state schools (e.g., Ill. Admin. Code tit. 89, § 827.30); (c) specialized private schools (e.g., 8 Va. Admin. Code §§ 20-671-10); (d) for school curricula or related services (e.g., W. Va. Code R. tit. 126, § 42-7); (e) for pertinent school district policies (e.g., Miss. Rev. Stat. § 3-11-15); and (f) that were peripheral to, rather than an antecedent or consequent to, seclusion and restraint (e.g., N.C. Gen. Stat. § 151C-391.1; 7 Vt. Admin. Code § 1-12:4504).

The tabulations of the results followed the template in Zirkel (2011b). More specifically, Table 1 codes the state law provisions for the when, who, what, and how of FBAs and BIPs, respectively, in the K-12 public school context. The states and entries in grey highlighting represent changes since the Zirkel (2011b) overview. Examination of Table 1 reveals that 36 of the 50 states have provisions for FBAs and BIPs, but the net additions have been relatively modest and largely attributable to the relatively recent expansion of state laws restricting the use of seclusion and restraints in K–12 schools. Moreover, the previously leading state, California, replaced its leading law with much more limited provisions in terms of the breadth and depth of the requirements for FBAs and BIPs. The overall extent of the state law FBA/BIP provisions remain rather scant, particularly with regard to who must conduct FBAs and BIPs and the how, or procedural specifications, for FBAs.

Table 1. Overview of State Law Provisions for FBAs and BIPs for Students With Disabilities

State	When		Who		What		How		Comments for Columns 1-8
	1 FBA	2 BIP	3 FBA	4 BIP	5 FBA	6 BIP	7 FBA	8 BIP
AL	•	•					⊕		1) Return from crime-referral to juvenile justice authorities 7–18 mo. limit for re-doing FBA after affirmative M–D.
AR	⊕	⊕					⊕		1,2) IEP special consideration may include FBA or BIP.
CA	⊕	⊕	⊕	♦					1,2) Determine necessity upon seclusion or restraint. 3) Permits but does not require certified behavior analyst 4) Various specified alternative categories of personnel
CO		⊕							Qualified restraints (crisis mgmt. or alt. mech./chem.).
CT	•	•							1,2) Upon 4 seclusions or restraints within 20 days.
DE	♦	♦							1,2) For removals > 10 cumulative days
FL	♦	♦			◊	◊			1,2) For eligibility for ED.
GA		⊕			◊	◊		⊕	2) Express qualified IEP consideration for impeding behavior. 8) In IEP when appropriate.
HI	•	•				•			1,2) “As appropriate” for removals > 10 cumulative days.
ID					♦+	♦+		◊	5,6) Additional details via accompanying forms. 8) Progress monitoring, etc., via attached form
IL	⊕	♦			◊	◊		♦	2) For removals > 10 cumulative days + “to the extent possible” for day or residential placement. In IEP + review schedule + home coordination
IN	⊕				•	◊		⊕	1) For eligibility for ED 8-in IEP
KS	⊕	⊕							1,2) “Consider” upon seclusion or restraint.
LA	♦	•	⊕						1,3) “ When behavior is noted as a concern” by “appropriately trained personnel.” 1,2) For “self-injurious behavior,” and eligibility for ED. 2) Upon 5 restraints or seclusions in a school year.
ME			♦		♦		•		3) “Appropriately qualified individuals.”
MD	⊕	•			♦	•			1) Consideration after restraint or seclusion + upon parental request after “exclusion.” 2) Alternative prerequisite for restraint or seclusion and consideration afterward (+ upon parental request after “exclusion”).
MN	♦	♦			◊	⊕		⊕	1) For eligibility for ED and one of various options for autism 1,2) Upon pattern (e.g., 2x/mo.) of “conditional procedures” (e.g. seclusion or restraint). 6) indirect and limited via more general “behavior interventions” regulation. 8) Parental consent revocation + notification.
MS	⊕	♦			◊	•		•	1,2) implicit consideration upon seclusion or restraint. 2) Before 3rd disruptive incident within a school year + “should” for IEP of students with OHI based on ADD. 8) System for monitoring/evaluation + implemented within 2 weeks of 3rd disruptive incident.
MT	•							⊕	1) For “aversive procedures” (i.e., specified forms of restraint and seclusion). 8) In IEP in limited circumstances
NE					♦
NV	⊕	⊕							1) After 5 uses of physical or mechanical restraint.
NH		•				•		•	2) For “aversive behavioral interventions” (e.g., specified forms of restraint) + for juvenile delinquency petition. 8) in IEP.
NJ	⊕								1) Part of initial evaluation “where appropriate”
NM	⊕	⊕							1,2) “Strongly encouraged” in IEP for learning-impeding behavior + consideration for students with autism.
NY	◊	⊕			◊	◊		•	1) For learning-impeding behavior as part of initial evaluation. 2) Consideration for impeding or injury-risk behavior or for more restrictive placement. 8) Progress monitoring + reviewed at least annually and documented in the IEP.
OH							♦	♦	7,8) Time limit for each after affirmative M-D.
OK	⊕	⊕			♦	•			1) Express qualified IEP consideration; 2) Alternative prerequisite for seclusion + consideration upon restraint or bus suspension.
OR					•	•
PA	•	•				•		•	1,2) upon referral to law enforcement + consideration after restraint + after 15 cumulative days. 8) In IEP.
RI	⊕	⊕			◊	♦		•	1,2) Permissible < 11 cumulative days. 2) For physical restraint or crisis intervention. 8) System and schedule for monitoring/evaluation.
TX	•	♦			•	•		•	1) For high-risk juvenile offenders in state forensic center 1,2) An IEP consideration for children with autism 2-possible considerations after restraint. 8) In IEP and copy for child's teachers.
UT	•	•			◊+	•+			1) Express qualified IEP consideration (with mandatory cross reference to LRBI guidelines). 1,2) Before seclusion or restraint in IEP. 5,6) Incorporation to consider LRBI guidelines
VA	⊕	⊕			•	•			1,2) Express IEP consideration + qualified IEE right upon “yes” manifestation determination.
VT	•	•			•	•			1,2) Upon seclusion or physical restraint.
WA						•		⊕	8) In IEP if necessary for FAPE.
WV		⊕	⊕		◊	♦			2) Alternative aftermath of restraint 3-evaluation by school personnel and parents.
⊕ Partial or only implied \| • Limited \| ♦ Moderate \| ◊ Extensive \| + Additions via expressly incorporated forms or guidelines. \| Changes since the Zirkel (2011b) overview.

Elaborating on the pair of what columns in Table 1, Table 2 provides a structured overview of the definitional provisions for FBAs and BIPs in state laws directly applicable to K–12 public schools. The framework is the same as Zirkel (2011b). More specifically, in light of the absence of a clear consensus in the literature, it was limited to the readily applicable criteria from Van Acker, Boreson, Gable, and Potterton (2005), with supplemental features frequently specified in other oft-cited sources (e.g., Sugai et al., 2000). However, as Zirkel (2011b) explained, the framework “does not extend to what some sources regard as other key components of an FBA (e.g., triangulation of data across settings, persons, and behaviors) or of a BIP (e.g., specification of previous interventions, the target behavior, a crisis management plan, and the replacement behavior,” p. 267). Similarly, per the previous model, the entries are approximations within a three-level scale in terms of level of detail; however, the changes are designated in gray highlighting.

Table 2. State Laws' Selected Definitional Features for FBAs and BIPs for Students With Disabilities

State	FBA						BIP					Comments for Columns 1-11
	1 Specific Target Behavior	2 Antecedent	3 Consequences	4 Function	5 Multiple Sources	6 Nexus to BIP	7 Nexus to FBA	8 Settings	9 Strategies	10 Staff Supports	11 Monitor/Valuate
AR	•	•	•	•		•						6) Accompanying Form
[CA]												[1-11) Repealed]
FL	•	•	•	•	•	•		•	•	•		9) Positive
GA	•	•	•	•	•	•		•	•	•		9) Positive
HI								•	•			9) Positive
ID	•	◊		•	◊				•		◊
IL	•	•	•	•		•	•	•	•		•	8) Coordination w. home
IN	⊕			•			•	•	•	•	⊕	1) Behavior patterns
ME	•	•	•	◊			•		⊕
MD	◊	•		•		•			•			9) Positive
MN	•	•	•	•	•
MS	•	•	•	•	•		•		•		•	9) Including where and other details
NE	•	•	•	◊
NH										•	•
NY	◊	•	•	◊	•	◊	•	•	•	•	◊	11) At least annually + criteria + CPM
OK	•			•	•					◊
OR				•		•			•
PA							•		•			9) Positive
RI	•	•	•	•			•		•		•	11) Including timeline
TX					•	•	•	•
UT	◊	•	•	◊	⊕	•			•
VA				•					•			9) Positive
VT		⊕	⊕			•			•
WA									◊		⊕	9) Positive w. fidelity
WV	•		•	•	•	•	•		•	•
⊕ Partial or only implied \| • Mentioned \| ◊ More detail than merely mentioning \| Changes since the Zirkel (2011b) overview.

A review of Table 2 reveals that the number of state laws with definitions of BIPs and/or FBAs has increased from 17 to 24, which still represents only half of the states and with the pattern continuing to be notably limited in terms of the level of detail. The California law, which had been the exception to this overall pattern, is now entirely devoid of definitions, and the additions in other states are again largely attributable to the seclusion and restraint laws. Among the current states, New York's law is the only one to address every one of the selected features, although its provisions are notably less specific than California's former law, and its related Table 1 features, especially the breadth of its applicability, is less than robust.

Discussion

The findings of this state law survey reinforce the gap between professional recommendations and legal requirements, as recently documented in Collins and Zirkel (in press). Despite the value of a proactive approach to behavioral issues among students with disabilities, state policy makers have been rather parsimonious and passive in enacting legislation or adopting regulations specific to FBAs and BIPs. The increase in state law definitions for FBAs and BIPs has been largely attributable to the growing concern about seclusion and restraints. Moreover, as Table 1 shows, only about half (n=24) of the states currently have definitional provisions of FBAs or BIPs, and the specifications are rather scant in comparison to recommendations in the professional literature. Extending the purview beyond the what to the when, who, and how, Table 2 reveals that a notable minority (n=14) of states have no applicable legal provisions, and the rest have markedly scattered and weak provisions. Although the net change is in the pro-FBA/BIP direction, the extent is far from significant. Indeed, the repeal of California's landmark FBA–BIP law, popularly known as the Hughes Bill (e.g., California Department of Education, 2014), suggests that budgetary priorities do not sufficiently support this proactive approach.

As Collins and Zirkel (in press) also document, even in states, such as New York, with relatively rigorous provisions for FBAs and BIPs, the courts have treated these provisions as procedural, thus subjecting them to the applicable two-step, “harmless error” approach for denial of a free appropriate public education (FAPE) under the IDEA. For example, in M.W. v. New York City Department of Education (2013), the Second Circuit concluded that the district's violation of the state law requirement for an FBA for a child with disabilities who had learning-impeding behavior was not a denial of FAPE because the IEP adequately addressed the child's behavioral needs.

Perhaps the limited legalization of FBAs and BIPs is attributable to purposeful deference to and latitude for professional discretion. Yet, this attribution does not square with the increasing wave of state laws concerning seclusion and restraint in the schools (e.g., Butler, 2015) that has resulted in varying new requirements, ranging from consideration to implementation, for FBAs and/or BIPs. Moreover, overlapping with this trend, a more limited finding is the extension of FBA or BIP requirements to students in general education, exemplified by Mississippi's school safety act's requirement of a BIP as a prerequisite for “habitually disruptive” status (Miss. Rev. Stat. § 37-11-18.1).

Research recommendations. The recommendations for research concerning FBAs and BIPs are for follow-up systematic analyses of (a) the aforementioned exclusions, such as state laws specific to preparation of professional personnel, including school psychologists; (b) the contrast between state laws and state guidelines; (c) the corresponding contrast between state laws and court decisions; (d) the frequency and outcomes under the complaint resolution systems of the state education agencies under the IDEA and U.S. Department of Education's Office for Civil Rights pursuant to the overlapping coverage of Section 504 and the Americans with Disabilities Act; (e) the prevailing perceptions among professors, practitioners, and parents; and (f) the prevailing practices in the implementation of the IDEA and state law provisions.

Practice recommendations. Moreover, based on a careful analysis of the advantages and disadvantages of legalization, school psychologist should consider more extensive and effective collective action in terms of lobbying for more robust and rigorous FBA and BIP provisions in state laws and/or the IDEA and serving as expert witnesses for more responsive court decisions.

Perry A. Zirkel is university professor emeritus of education and law at Lehigh University and a contributing editor for Communiqué