Parent Consent and Independent Educational Evaluation Procedural Safeguards Apply to Functional Behavior Assessment

  A functional behavior assessment, or FBA, is a tool to gather information about a student’s inappropriate or problem behavior to understand why a student engages in the behavior. Once an IEP team understands why the student is engaging in the behavior, the team can develop a behavior intervention plan, or BIP, to address the behavior. An IEP team might recommend a functional behavior assessment be conducted anytime there is a concern about a student’s behavior.


  The disciplinary provisions of the IDEA, however, require that when a student with a disability is removed for misconduct for more than ten consecutive school days, the student must receive, as appropriate, a functional behavior assessment. Moreover, if the student’s misconduct is determined to be a manifestation of the student’s disability, then the IEP team must conduct a functional behavior assessment, unless the FBA had already been done before the student engaged in the misconduct. Some school districts have questioned whether parent consent is required before conducting a functional behavioral assessment and whether an FBA triggers the IDEA procedural safeguards that apply to evaluations and an independent educational evaluation (IEE).  



  The Office of Special Education Programs says the answer is “Yes” parental consent is required before a school conducts an FBA and parents have the same IEE rights regarding a functional behavior assessment as they do other evaluations. In a February 2007 letter, Alex Posny, the Director of the Federal Office of Special Education Programs, states that:


If an FBA is used to evaluate an individual child in accordance with 34 CFR §§300.304 through  300.311 to assist in determining whether the child is a child with a disability and the nature and extent of special education and related services that the child needs, it is considered an evaluation under Part B and the regulation at 34 CFR §300.15.  Parental consent, consistent with 34 CFR §300.300(a) and (b), is required for an FBA conducted as an individual evaluation or reevaluation.  If the FBA is conducted for individual evaluative purposes to develop or modify a behavioral intervention plan for a particular child, under 34 CFR §300.502, a parent who disagrees with the child’s FBA would have the right to request an IEE at public expense.

*Note that the Individuals with Disabilities Law Reporter cite is Letter to Christiansen 48 IDELR 161 (OSEP 2007).


So, at least according to the U.S. Department of Education, an FBA requires parental consent and parents have the right to obtain an independent functional behavior assessment if the parents question the FBA conducted by the school.

Moving On: The IDEA and Summary of Performance for Students Graduating or Aging Out of School

  Generally, the IDEA requires that once a school district determines that a student has a disability, the district must reevaluate (34 CFR 300.305) the student before the school district determines that the student no longer has a disability and is not eligible for IDEA services. That reevaluation must meet all of the requirements set out in 34 CFR 300.304. But, this reevaluation is not required for students with disabilities who are no longer eligible for IDEA services because they have: (1) graduated from secondary school with a regular education diploma or (2) have exceeded the age eligibility requirements, age twenty-one, for receiving a free appropriate public education under State law. For those students, the IDEA requires that the school district provide a summary of the student’s academic achievement and functional performance. This is also referred to as a Summary of Performance or SOP.


      The Summary of Performance includes not only a summary of the student’s academic and functional performance, but also includes recommendations on how to assist the student in meeting the student’s postsecondary goals. Thus, the Summary of Performance can be a very useful tool for the student in documenting that the student has a disability and providing information about accommodations the student may need to be successful after high school.


     This is true because, unlike the public schools through the elementary and secondary levels, colleges and other post secondary institutions are not usually required to assess an individual to determine if they have a disability and may need accommodations. Under both Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, colleges may not discriminate against students with disabilities and may be required to provide academic adjustments and auxiliary aids to support the student. But the student is expected to provide information about the disability and the support the student may need. A well-written summary of performance might provide that information.


   This summary might also provide documentation that would help the adult student receive services from vocational rehabilitation services (VR) and other state and local disability service providers. To be sure, information contained in the Summary of Performance that a student has a disability does not automatically mean that the student is eligible for services from state VR agencies. State vocational rehabilitation agencies are required to assess individuals seeking vocational rehabilitation services in order to determine their eligibility for rehabilitation services. The Summary of Performance might be helpful in that process.


   While the IDEA does not provide much detail on the content of the Summary of Performance, a sample Summary of Performance form has been developed with input from a variety of entities and individuals. Sometimes, based on this template, some State Education Agencies, including Colorado, have developed their own Summary of Performance forms. If used thoughtfully, these sample forms could provide very detailed and helpful information regarding the supports the student will need to be successful after high school As always, you should check with your own State Education Agency or school district to see if they have developed a model form.







Colorado DDD Proposes Two Step Plan: Change State Rules to Limit DD Eligibility, then Conduct Broad Public Discussion Regarding the DD Definition of the Future

Readers: I usually try to focus my posts on issues that are of interest nationally, rather than only in my home state of Colorado. This posting, however, focuses on an important  Colorado issue related to how individuals are determined eligible for services from Colorado’s developmental disabilities service delivery system. I want to get the word out that an effort is being made to narrow Colorado’s definition of developmental disability.


The Colorado Division for Developmental Disabilities (DDD) is proposing to: (1) immediately change the definition of developmental disability in state rules, and (2) after the rule change engage the system in a thorough deliberative process to discuss what our state DD definition should be. This proposal is a response to a declaratory order issued by the Colorado Department of Human Services (CDHS). The CDHS order declared that in determining eligibility for DD services, community centered boards (CCBs)  may not limit eligibility to only persons with mental retardation. The order further declares that when determining eligibility, state law at CRS 27-10.5-102(11)(a) requires CCBs to consider an individual’s adaptive behavior.


  This clarified that under Colorado law an individual who has adaptive behavior similar to a person with mental retardation has a developmental disability. In order to determine whether adaptive behavior is similar to a person with mental retardation, state rules look at whether that behavior is the direct result of, or significantly influenced by, the person’s substantial cognitive deficits.  The declaratory order concluded that a substantial cognitive deficit included individuals with impairments resulting in IQ measurements as high as 85. But, according to DDD, this decision broadened the DD definition “beyond how it has generally been implemented.”


Thus, DDD is proposing a new definition in state rules that restricts DD eligibility to individuals with IQ measurements up to 75 or perhaps, given the standard error of measurement, 80. The stated reason for the proposed change is to provide immediate clarity to the system. Note that, legally, the DD definition determined in the declaratory order, is in effect until the rules are changed. Community centered boards must determine eligibility based on that order and may not ignore it because there is a different definition being proposed.


The rules implementing the state DD statute were originally adopted by the State Board of Human Services. The rules can be changed by that Board, but they cannot be changed without an opportunity for public hearing and comment.  That process is underway and DDD is proposing a two step process. First, quickly conduct the public hearing and comment period and effectuate the rule change by October 1, 2008. Second, begin a lengthier discussion that includes all of the various stakeholders regarding what the definition should be.


 The Legal Center opposes this process. We believe the definition established in the declaratory order is clear and should remain in effect until there can be a thorough discussion of the other definitions and their impact on families and people with disabilities. There is no need to urgently change the rules for the sake of clarification. We believe that if there is a need to change the definition of developmental disability, the system wide discussion of possible definitions and the ramifications of each, should be discussed before the change: not after. Otherwise people with developmental disabilities face the possibility of three different definitions of DD eligibility. One, the definition, now in effect per the declaratory order. Two, the definition in the proposed quick rule change. Individuals found eligible under the broader declaratory order definition will soon be found ineligible under the narrower proposed rule change definition. Third, if the broad public discussion results in another definition change, some individuals may have their eligibility determined a third time.


While DDD is trying to change the rule as quickly as possible, there are timelines and a process to follow. The first reading of the proposed rule change at the Human Services Board will be July 11, 2008 and the second reading August 1. The Human Services Board will take public comment orally or written at both readings. Persons concerned with this rule change should make sure their concerns are heard. The proposed rule and the memorandum from DDD explaining the rationale for the change can be found on the DDD website at just scroll down to “Memo to System Regarding Draft Rule Revision of the Definition of Developmental Disability” and “Proposed Change to the Definition of Developmental Disability”.

This proposed rule change will be heard again by the Human Services Board on Friday August 1, 2008 at 10:00 am at 1575 Sherman Street, Denver, CO in conference room 4A/B. The public is welcome to testify.


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