state special education laws for functional behavioral assessment and behavior intervention plans

State Special Education Laws for Functional BehavioralAssessment and Behavior Intervention Plans Perry A.. Zirkel Lehigh University ABSTRACT: A comprehensive search identified 31 state s

State Special Education Laws for Functional Behavioral

Assessment and Behavior Intervention Plans

Perry A Zirkel Lehigh University

ABSTRACT: A comprehensive search identified 31 state statutes and regulations specific to functional behavioral assessments (FBA) and behavior intervention plans (BIP) in the special education context A systematic tabulation of the state law provisions that exceed the rather narrow foundation requirements of the Individuals with Disabilities Education Act (IDEA) revealed that most of these additions were of notably limited scope and specificity, with California being the leading exception Eor example, contrary to recommendations in the special education literature, neither the IDEA nor any state special education law requires both a FBA and a BIP when the behavior of a child with a disability interferes with the learning of the child or others As another example, only 17 state laws provided definitions of EBAs and/or BIPs, and the vast majority of these definitions merely mentioned some of the key elements in the special education literature, such as "function" for EBAs or "interventions" for BIPs The discussion explores the disparity between the professional literature and the legal requirements, suggesting the need for more scholarship to recognize and address this differentiation.

• The special education literature on

func-tional behavioral assessments (EBAs) and

behavioral intervention plans (BIPs) is replete

with rhetoric, research, and increasingly more

detailed practical sources, and the legal

literature specific to FBAs and BIPs focuses

on the applicable case law However, both of

these overlapping literatures lack a systematic

analysis of the pertinent provisions in state

special education laws that provide more

rigorous requirements than the Individuals

with Disabilities Education Act (IDEA) for

school district policies and practices

Special Education Foundation

An FBA is a systematic process of

identi-fying the purpose, and more specifically the

function, of problem behaviors by

investigat-ing the preexistinvestigat-ing environmental factors that

have served the purpose of these behaviors

(e.g., Hanley, Iwata, & McCord, 2003; Steege

& Watson, 2008) Based on this foundation, a

BIP is a concrete plan of action for reducing

the problem behaviors as dictated by the

particular needs of the student who exhibits

the behavior (e.g., Sugai et al., 2000; Turnbull,

Wilcox, Stow, Raper, & Hedges, 2000)

Based on foundational research that

sug-gested a relationship between problem

behav-iors and environmental conditions, such as

amount of attention and difficulty of instruc-tion (Carr & Durand, 1985; Iwata, Dorsey, Slifer, Bauman, & Richman, 1982), various studies have applied the FB/VBIP procedure to

a wide range of student populations, target behaviors, and educational environments (e.g., Kennedy, Meyer, Knowles, & Shukia, 2000; Pelios, Morren, Tesch, & Axelrod, 1999) Further, in response to calls for wider use

in schools (e.g Cable & Hendrickson, 2005; Quinn, Cable, Fox, Van Acker, & Conroy, 2001), research efforts are in progress to refine the FB/VBIP procedure for more practical applicability in the school setting (Fox & Davis, 2005; Steege & Watson, 2008)

Legal Analyses

In addition to broad and not entirely current overviews of the applicable framework

in the legislation and regulations of the IDEA (e.g., Osborne & Russo, 2009), the pertinent legal analyses to date have focused on the case law, specifically hearing and review officer decisions concerning FBAs (Drasgow & Yell, 2001) or both hearing/review officer and court decisions concerning BIPs (Etscheidt, 2006; Maag & Katsiyannis, 2006) Although provid-ing useful recommendations for practice based on these case samplings, none of these analyses focused on the differentiation

between the IDEA and state law requirements

for FBAs and BlPs

The only reports of official state activity

specific to FBAs and BIPs did not specifically

and directly examine state laws An early

survey by the National Association of State

Directors of Special Education found, in the

wake of IDEA 1997, that at least 19 states had,

and another 16 states planned to have, written

"policies, procedures, or guidelines

concern-ing assessment of behavior" (National

Associ-ation of State Directors of Special EducAssoci-ation,

1998, p 2) However, the results did not

specifically and separately address state laws

specific to EBAs and BIPs For example, the

findings were based on a survey of state

directors of special education that did not

distinguish state laws from this catchall mix of

documents Similarly, the generic referent of

"assessment of behavior" (p 2) did not

provide any specific delineation of FBAs,

much less BIPs

Another such survey of state directors

found that 30% of the respondents reported

having state policies that extend beyond the

IDEA requirements for FBAs (Conroy,

Kat-siyannis, Clark, Gable, & Fox, 2002)

However, more than a fourth of the state

directors did not respond to the survey,

and, as the authors acknowledged, the

limitations also included the respondents'

varying knowledge and response set (p 106)

Because the initial items focused broadly on

"state policies" and their subsequent items

inquired about "recommended" standards,

personnel, and procedures, the survey did

not distinguish between law and nonbinding

guidelines, manuals, and other state

educa-tion agency (SEA) documents Further

re-flecting this nondifferentiation, the authors'

discussion section ambiguously referred to

state policies as "implementation

guide-lines" (p 105)

A pair of subsequent state surveys

evaluat-ed resource materials that SEAs had made

available to school districts for FBAs and BIPs

The first study found that 41 SEAs had such

materials for completing an FBA and that these

materials generally fell short of standards of

practice (Weber, Killu, Derby, & Barretto,

2005) The companion study found that 40

SEAs had such materials for developing a BIP

and that only 10 met standards of practice

(Killu, Weber, Derby, & Barretto, 2006)

Al-though informatively addressing the difference

between prevailing practice and professional

norms, neither of these studies canvassed the legislation and regulations in these states concerning FBAs and BIPs in relation to these materials or standards

Another pair of successive studies exam-ined FBA and BIP practices at the local district level First, a study in Wisconsin found that, for a sample of public schools, the majority of FBAs/BlPs had serious short-comings in terms of not only best practice but also the state's legal requirement for the developing team (Van Acker, Boreson, Gable,

& Potterton, 2005) Although further illumi-nating the gap from professional norms, this study did not specifically cite or systemati-cally examine the identified state require-ment, which mirrors the parallel provision in the IDEA regulations Second, a subsequent study limited to students with emotional disturbance in self-contained classrooms in

a midsized district in the state of Washington similarly found fundamental flaws in the quantity and quality of FBAs and BIPs (Blood

& Neel, 2007) For example, only about a third of the students had an FBA, and most of these FBAs lacked critical components in terms of best practice, including a clear connection to the BIP The authors also concluded that the BIPs "tended to be compliance documents rather than tools used

to aid in developing programs" (p 75), but their reference point to "the law" (p 76) was unclear because of the absence of substantive standards for FBAs and BIPs in the IDEA and Washington legislation or regulations The purpose of this study is to provide

a comprehensive and systematic analysis of state statutes and regulations specific to FBAs and BIPs in the K-12 school context that exceed, rather than repeat, the IDEA regulatory requirements Setting the stage for the state law analysis, the next section provides an overview of foundational re-quirements in the IDEA in terms of the legislation, regulations, and—with due dif-ferentiation—agency interpretations

IDEA Framework

The federal framework for the case law concerning FBAs and BIPs consists of an evolving pattern of three successive levels of the IDEA: (a) the statute, which is subject to periodic amendments, or "reauthorizations," because it is a funding law; (b) the regulations

that the administering agency issues after each

set of amendments; and (c) the agency's policy

interpretations, which generally have

persua-sive but not binding legal weight (Zirkel,

2003)

IDEA Legislation

The IDEA did not contain any local

education agency (LEA) requirements for FBAs

or BIPs until the 1997 and 2004 amendments

First, as Zirkel (2007) showed, the 1997

amendments required the individualized

edu-cation program (lEP) team's consideration

"when appropriate" of "strategies, including

positive behavioral interventions, strategies,

and supports" to address behavior that

im-pedes the child's learning or that of others The

2004 amendments slightly strengthened this

required special consideration by removing

"when appropriate" and otherwise made the

language more straightforward by requiring the

lEP team to consider "the use of positive

behavioral intervention and supports, and

other strategies" to address such behavior

(§1414[d)[3][B][i]) However, neither the

1997 nor 2004 amendments expressly

incor-porated FBAs and BIPs in this lEP provision,

and "consideration" is clearly a lower

require-ment level than implerequire-mentation

Second and more significantly, the 1997

amendments expressly required an FBA and a

BIP in tandem with disciplinary removals

Specifically, upon a disciplinary change in

placement, including a removal to an interim

educational setting for three specified serious

behavior violations and a fourth circumstance

limited to a hearing officer's determination of

substantial risk to self or others, the 1997

amendments required the lEP team to develop

or modify an FBA and a BIP in tandem with a

manifestation determination review The 2004

amendments subtly differentiated this

require-ment based on the results of the manifestation

determination More specifically, for

determi-nations that the conduct in question was a

manifestation of the child's disability, this

requirement remained the same as it had been

under the 1997 amendments However, for

determinations that the conduct was not a

manifestation of the child's disability and for

removals to a 45-day interim alternate

educa-tional setting, the language changed to

requir-ing "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][ii])

IDEA Regulations

As Zirkel's (2007) comparative analysis also showed, the 1999 regulations expanded

on the 1997 legislative amendments by re-quiring an "assessment plan" for an FBA and a BIP for children who did not already have them upon the 11th cumulative day of removal, but the 2006 regulations dropped this requirement, rather ambiguously sub-stituting the softer, aforementioned "as ap-propriate" language (§3OO.53O[b][2] and

§300.530[d][1][ii]) In contrast, the 2006 regulations retained the higher, multifactor cumulative-day standard for a disciplinary change in placement, although with an additional factor that tends to lengthen the case-by-case period (§300.536) Otherwise, the 2006 regulations largely mirrored the

2004 amendments in relevant parts For example, the IDEA regulation for the lEP special consideration for learning-impeding behavior tracks the legislative provision word for word (§300.324[a][2][l]) Similarly, the relevant regulations for FBAs and BIPs upon disciplinary changes in placement are almost identical to the legislative provisions

OSEP Interpretations

In a policy memorandum directly after the

1997 amendments, the Office for Special Education Programs (OSEP, 1997) clarified that the then new legislation did not require

an FBA for cumulative removals of less than

10 days in a school year In the same interpretive guidance, OSEP recommended—

via use of the word should rather than shall—

proactive steps for learning-impeding behav-ior For example, OSEP stated that in addition

to the required consideration, "school districts should take prompt steps to address miscon-duct when it first appears," listing the follow-ing as an illustrative step: "a [FBA] could

be conducted" (p 982) In the commentary accompanying the 1999 regulations, OSEP distinguished between "proactive" steps and minimum requirements (p 12,621) and clari-fied that BIPs are not limited to strategies and supports that are positive (p 12,479)

In the commentary accompanying the

2006 regulations, OSEP added its interpretive

clarifications concerning (a) lEPs and (b)

manifestation determinations For the first

situation, OSEP opined that FBAs and BIPs

"are not required components of an lEP"

unless state law provides otherwise

(p 46,629) For manifestation determinations,

OSEP declined to specify standards for a valid

or current FBA, reasoning that "such decisions

are best left to the LEA, the parent, and [other]

relevant members of the lEPTeam" (p 46,721)

Moreover, declining to add a requirement for

an FBA and BIP upon a negative manifestation

determination, OSEP pointed to the

aforemen-tioned change in legislative language and the

"proactive" option of the lEP special

consid-eration (p 46,721)

After the issuance of the 2006 regulations,

OSEP added further relevant interpretations in

the form of policy letters and

question-and-answer memoranda These clarifications

start-ed with OSEP clarifying that state special

education regulations that allow aversive

interventions are not in conflict with the IDEA

(Letter to Trader, 2006) Next, OSEP's

imme-diate parent agency, the Office of Special

Education and Rehabilitation Services

(OSERS), distinguished manifestation

determi-nations requiring an FBA and a BIP from the

lEP special consideration permitting an FBA

and a BIP (Questions and Answers on

Disci-pline Procedures, 2007) Two years later,

OSERS issued a superseding interpretation,

slightly strengthening its previous position by

adding the following two situations as

requir-ing a BIP: (a) a negative manifestation

deter-mination (in light of the statutory language)

and (b) "[f]or a child with a disability whose

behavior impedes his or her learning or that of

others, and [emphasis added] for whom the lEP

Team has decided that a BIP is appropriate"

(Questions and Answers on Discipline

Proce-dures, 2009, p 1154) In addition, this more

recent policy statement added definitional

guidance about an FBA:

An EBA focuses on identifying the function or

purpose behind a child's behavior Typically

the process involves looking closely at a wide

range of child-specific factors (e.g., social,

affective, environmental) Knowing why a

child misbehaves is directly helpful to the

lEP Team in developing a BIP that will reduce

or eliminate the misbehavior, (pp

1153-1154)

Intervening between the two latest OSERS

interpretations, OSEP provided guidance as to

the questions of what the purposes and

components of an FBA are and who must conduct it (Letter to Janssen, 2008) More specifically, OSEP explained that the IDEA does not specify the components of an FBA beyond its linkage to the development of a BIP Similarly, in the absence of IDEA specifica-tions, OSEP deferred to state law as to who is qualified to conduct the FBA, rejecting the contention that under the IDEA the person must be a board-certified behavior analyst

Method The successive steps that the author alone conducted for finding the relevant state laws were as follows: a) Boolean search, via the Westlaw database, of each state's legislation and regulations, using "functional behavioral assessment," "behavior intervention plan,"

"behavioral intervention plan," or "behavior support plan"; b) search of the Web site of the SEA for each state that lacked entries in Step 1; and c) double-checking via the National Early Childhood Technical Assistance Center's (NECTAC, 2011) updated list of state regulations

Nevertheless, it is possible that one or more pertinent provisions escaped the cumu-lative catchment of these successive steps For example, the first step may have missed a pertinent FBA provision due to varying terms, even limited to functional "behavior"—rather than "behavioral"—assessment The other two steps helped mitigate this missing-data prob-lem The selected NECTAC list was relatively comprehensive and current, being specific to Part B (i.e., ages 3-21 years) rather than Part C (i.e., ages 0-3 years), of the IDEA

The use of state Web sites was purposely the other supplementary step rather than being the primary or sole source for the search First, the SEA Web sites are not uniform in terms of including or linking to the respective state's current special education legislation and reg-ulations Second, review of materials on SEA Web sites required special care in separating law from guidelines and other such docu-ments Per previous example (Zirkel &

Thom-as, 2010), the boundary extended beyond legislation and regulations only for the limited exceptions of policies formally adopted by the state board of education (Oklahoma) or expressly delegated by the regulations (Idaho)

In contrast, the tabulation excluded an informa-tion bulletin that an SEA assistant superinten-dent issued (Wisconsin Department of Public

Instruction, 2007) Finally, Utah represented a

special situation More specifically, its

regula-tions mandatorily cross-refer—in the express lEP

consideration for an FBA and BIP, "as

appro-priate," for learning-impeding behavior—to the

SEA'S "Special Education Least Restrictive

Behavior Intervention (LRBI) Guidelines."

Al-though a close call, on balance these guidelines

do not appear to have a legally binding effect,

particularly in light of their express introductory

caveat: "Because this document constitutes best

practice guidelines, it does not carry the same

merit as the [regulations]" (Utah Office of

Education, n.d., p 5)

As a result, the resulting tabulation

men-tions the connection to the LRBI guidelines in

the Comments column but does not

incorpo-rate their detailed provisions for FBAs and BIPs

in the entries for the other columns

The threshold exclusion was for those laws

that were exclusive to agencies, such as

institutions for adults with disabilities, other

than K-12 schools The scope of the study

similarly does not extend to the legislation or

regulations in several states—for example,

Colorado (special education specialists and

generalists) New Hampshire (special

educa-tion teachers in specified categories New

Mexico (gifted teachers), and Texas (behavior

diagnostician)—for educator preparation and/

or certification requirements specific to

FBAs-BIPs It also excludes state laws authorizing or

requiring school district policies and training

for behavior intervention not specific to FBAs

and BIPs, such as the more general provisions

in Illinois' law

Basic to the legal structure of cooperative

federalism (e.g Bay Shore Union Free School

District V Kain, 2007, pp 733-734), states add

to—not subtract from—the minimum

require-ments of the IDEA, which apply nationally

regardless of whether state laws expressly

repeat or incorporate them Thus, the

tabula-tion of the state laws within the specified scope

of the search was limited to the provisions that

exceeded, as contrasted with those that merely

mirrored, the aforementioned foundational

framework provisions of the current IDEA

legislation and regulations For the most part,

the distinction was rather straightforward

However, a few states presented difficult

interpretation issues For example, in

Pennsyl-vania, the reference to "behavior that interferes

with learning" in its regulations' definition of

BIP on first impression would seem to suggest

that such behavior requires development and

implementation of a BIP However, after careful consideration, the author concluded that, on balance, this provision did not exceed the IDEA'S required special consideration for learn-ing-impeding behavior because (a) the defini-tion limits this criterion to students who require specific intervention to address such behavior, (b) other parts of the relevant regulation require

a BIP for only one specific learning-impeding behavior (i.e., referrals to law enforcement), and (c) a BIP that in selective cases results from the lEP special consideration meets this defini-tional characteristic, whereas the characteristic

in itself does not necessitate a BIP in all cases of learning-impeding behaviors Similarly, the Hawaii regulations specific to discipline proce-dures treat removals of more than 10 cumula-tive days ambiguously Based on the less than clear corresponding IDEA regulation and Ha-waii's more specific relevant regulation for

"crisis removals," the author concluded that this provision did not warrant a distinguishing entry Thus, although each a close call, these two cases on balance did not appear to add to the IDEA regulatory requirements In contrast, California's BIP definitional criterion—"when the individual exhibits a serious behavior problem that significantly interferes with the implementation of the goals and objectives of the individual's lEP"—appeared, in the absence

of other interpretational indicators, to justify a qualified entry in the tabulation

Based on the compilation being the first one for this specific purpose, the author decided upon two successive frameworks: (a)

an overview of the "when," "who," "what," and "how" of the state law provisions for FBAs and BIPs, respectively, and (b) an analysis of the central "what," or definitional, dimension

of key components of FBAs and BIPs The professional literature provided a partial basis for the definitional components However, the categories of both tables are only tentative, subject to more refined follow-up analyses that add the perspective of specialized behavioral expertise in within the fields of psychology and special education Similarly, the hierarchy of the entries is only a starting point for more operationally defined and objectively deter-mined designations

Finally, for the sake of uniformity and simplicity, the tabulation uses the acronyms

FBA and ß/Pgenerically, although some state

laws use variations of these template terms For example, California's law uses a variation of

functional behavioral analysis—functional

analysis assessment" Similarly, other state

laws use variations of behavior intervention

plan, such as behavior management plan

(Illinois), positive behavior plan (Nevada),

and positive behavior support plan (Louisiana

and Pennsylvania)

Results

Table 1 summarizes the differential state

law provisions in their four major categories

The "when" pair of columns refers to the

triggering events that require an FBA or BIP,

respectively The "who" pair of columns refers

to the individuals or team required to develop

the FBA or BIP, with the understanding that the

IDEA expressly allocates this responsibility to

the lEP team only for disciplinary changes in

placement The "what" pair of columns refers

to the required contents of the EBA or BIP, as

specified in the applicable definition in state

law The "how" pair of columns refers to the

implementation requirements for the FBA or

BIP The "Comments" column provides brief

clarifications, numbered according to the

ref-erenced column for the clarified entry Finally,

the entries are according to an approximate

three-level hierarchy of symbols—with

varia-tions for partial or additional entries—in terms

of extensiveness based on the author's

judg-ment The note below the table provides the

coding key for these symbols, which include,

for example, O (limited) and * (extensive)

Examination of Table I reveals that only 31

of the 50 states have statutory or regulatory

provisions for FBAs and/or BIPs that exceed the

requirements of the IDEA and that most of these

provisions are relatively limited in terms of their

scope and strength For example, the majority

of the 31 state laws address half or less than half

of the four pairs (i.e., FBAs and BIPs,

respec-tively) of key questions (i.e., when, who, what,

and where), and these legal provisions are

largely at a notably limited level Conversely,

the pertinent provisions in 12 of the 31 states—

Alabama, Arkansas, Colorado, Connecticut,

Hawaii, Montana, Nebraska, Nevada, Ohio,

Oklahoma, Oregon, and Rhode Island—are

negligible, being limited to one or two columns

at the most minimal level In contrast, only a

few states—led by far by California—have laws

that exceed the IDEA requirements for FBAs and

BIPs to an extensive extent across and within

these four questions Yet, like the IDEA, none of

the state special education laws require both an

FBA and a BIP when the behavior of a child

with a disability interferes with the learning of the child or others

Civen the central role of the "what," or

contents, question in Table 1, Table 2 classifies

the provisions in the 17 of the 31 state laws that define FBAs and/or BIPs In the absence of any definition in the IDEA and of a clear consensus

in the professional literature, the selected features include the readily applicable criteria from Van Acker et al (2005) supplemented by those frequently specified in other oft-cited sources (e.g., Sugai et al., 2000) However, this table 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) Because of the limited scope of these state law provisions, the coded entries—as noted at the bottom of the table—are limited

to three inexact ordinal levels ranging from (•)

= partial or only implied to ^ = more detail than mere mention

The entries in Table 2 reveal that only one

third (n = 17) of state laws have definitional provisions for FBAs and/or BIPs Moreover, these 17 states' laws tend to have definitions provisions more often for FBAs than for BIPs, and the majority do so with bare-bones references to the selected features For FBAs, the most commonly referenced features are function (n = 14) and target behavior (n = 12), each with four instances of more detail than mere mention For BIPs, the only very frequent feature was strategies (n = 15) but in almost every case was limited to mere mention Indeed, only a few states—California, Idaho, New York, and Utah—have definitional provi-sions that go beyond mere mention of two or more of these selected features of FBAs and BIP However, because of the limited nature of not only the interpretational entries but also

their column categories Appendix A provides

the excerpted text of these state laws' defini-tional provisions In addition, for purposes of both independent interpretation and additional

state laws Appendix B provides the citations

for the legislation and regulations referenced

in both tables

Discussion Contrary to the abundant literature and extensive recommendations in special education

TABLE 1 Overview of State Law Provisions for FBAs and BIPs for Students with Disabilities

AL

AR

CA

CO

CT

FL

GA

HI

ID

IL

IN

LA

ME

MD

MN

MT

NE

NV

NH

NJ

NM

NY

OH

OK

OR

PA

RI

TX

UT

VA

WV

When

1 FBA 2 BIP

0

( 0 )

•

0

•

0

0

(O)

• +

0

( 0 )

(O)

(O)

*

(O)

o

o

( 0 )

(O)

o

( 0 )

•

( 0 )

•

0

•

o

o

( 0 )

o

(O)

(O)

o

(O)

(O)

(O)

Who

5 FBA 4 BIP

•

•

(O)

•

(O)

(O)

•

o o

(O)

o

0

What

S FBA 6 BIP

•

•

•

O

•

•

•

•

0

•

o

o

• +

o

•

•

•

•

( 0 )

o

( 0 )

o

0

o o

o

0 +

0

•

How

7 FBA 8 BIP (O)

• +

•

• +

( 0 )

•

(O)

(O)

o

(O)

( 0 )

0

o

•

o

Comments for Columns 1-8

1-return from crime-referral to juvenile justice authorities 7-18 mo limit for re-doins FBA after affinnative M-D 1,2-IEP special consideration may include FBA or BIP 1-when "instructional/behavioral approaches specified in the student's IEP have heen ineffective"

2-serious hehavior problem that significantly interferes with IEP goals

3-individuaI with behavior analysis training emphasizing positive behavioral interventions

4-IEP team, behavior intervention mgr., and specified others

7-speciñed sources, parent report & IEP team meeting 8-in IEP + specified training, evaluation, and modifications

2-quatified restraints (crisis mgmt or alt mech./chem.) I-seclusion

1,2-for students with emotional disturbance 8-in IEP wben appropriate

1 -for crisis removals < 11 consecutive days 1,2-for > 10 cumulative days upon "yes" manifestation determination

5,6-additional details via attached forms 8-progress monitoring, etc., via attached form 2-for removals > 10 cumulative days 8-in IEP

4-IEP team 8-in IEP 1,2-for "self-injurious hehavior" and for ES Y 4,8-lEP team

3-"appropriatelv qualified individuals"

1-consideration after restraint or seclusion + upon parental request after "exclusion"

2-prereq (but alternatives) for restraint or seclusion and consideration afterward (+ upon parental request after

"exclusion") 1-for eligibility for emotional disttirbanee + for any

"conditional procedure" (e.g., seclusion or restraint) 3,4-IEP team upon pattern (e.g., 2x/mo.) of conditional procedures

6-indirect and limited via more general "behavior interventions" regulation

8-parental consent revocation

1 -for "aversive procedures" (i.e., specified forms of restraint and seclusion)

8'ln IEP in limited circumstances 1-after 5 uses of physical or mechanical restraint 2-for "aversive behavioral interventions" (e.g., specified forms of restraint)

8-in IEP l-part of initial evaluation "where appropriate"

1-"strongly encouraged" in IEP for learning-impeding behavior

1-for learning-impeding behavior as part of initial evaluation

2-consideration for impeding or injury-risk behavior or for more restrictive placement

4-IEP team 8-progress monitoring + reviewed at least annually and documented in the IEP

7,8-time limit for each after affirmative M-D 1-express but qualified consideration 3-pennissive specification of group and particular members

1,2-after referral to law enforcement + consideration after restraint

4-IEP team 8-in IEP 2-permissive if >10 cumulative days 1-for resident high-risk juvenile offenders (+ possibly strengthened IEP consideration for children with autism)

2-possible consideration after restraint 1-express qualified IEP consideration (with mandatory cross reference to LRBi guidelines)

5,6-incorporation to consider LRBI guidelines) 1,2-express IEP consideration + qualified IEE right upon

"yes" manifestation deteimination 3-includes evaluation by school personnel and parents

Note (O) = partial or only implied; O = limited; • = moderate; * = extensive; + = additions via expressly incorporated forms or

guidelines.

TABLE 2 State Laws' Selected Definitional Features for FBAs and BIPs foi

CA

FL

GA

ID

IL

IN

ME

MD

MN

NH

NY

OR

PA

TX

UT

VA

WV

FBA

1.

specific

target

behavior

•

«

( • )

•

•

2.

antece-dent

•

•

•

*

3.

conse-quences

•

•

«

*

4.

function

•

•

•

*

•

•

5.

multiple sotirces

•

•

*

( • )

6.

nexus to BIP

•

•

«

Students with

BIP

7.

nexus to FBA

•

*

»

*

8.

settings

•

•

*

•

9.

strate-gies

•

•

*

«

•

( • )

•

•

*

10.

staff supports

•

•

*

•

•

*

11.

monitor/

evaluate

•

(•)

•

Disabilities

Comments

10-by behavior intervention case mgr.

9- positive 9- positive

8-coordination w home I-behavior patterns 9-indirectly via behavior 9-positive

9-positive

9-positive

Note (•)= partial or only implied; • = mentioned; • = more detail than merely mentioning.

the state laws specific to FBAs and BIPs are

relatively limited First, in comparison to the

rather narrow pertinent provisions of the IDEA,

only a small majority (n = 31) of the states have

additional requirements More significantly, these

additional provisions are even more notably

limited in terms of scope and specificity For

example, unlike the norms in the professional

literature, none of the state laws require both an

FBA and a BIP when the behavior of a child with a

disability interferes with the learning of the child

or others Similarly, only 17 state laws define

FBAs and/or BIPs, and the definitions for the most

part are skeletal and general, leaving wide

latitude for district compliance

Thus, when parents resort to either the

state complaint resolution process or the

impartial hearing/judicial review process

(Zir-kel & McGuire, 2010) as to their child's

entitlement to, or the appropriateness of, an

FBA or BIP, the odds of a favorable outcome in

most jurisdictions are slim if the determination

is based strictly on the requirements in the IDEA and state law For example, the Seventh

Circuit's decision in Alex R v Forrestville

Valley Community School District (2004)

rejected a parent's challenge to the appropri-ateness of a BIP as follows:

Although we may interpret a statute and its implementing regulations, we may not create out of whole cloth substantive provisions for the [BIP] contemplated hy [the IDEA] In short, the District's [BIP] could not have fallen short

of suhstantive criteria that do not exist, and so

we conclude as a matter of law that it was not suhstantively invalid under the IDEA (p 615)

A separate comprehensive and up-to-date study of case law will reveal (a) to what extent the trend is to rely on professional norms, via expert witnesses, as compared with adhering only to the specified legal standards, and (b)

whether these state laws make a significant

difference in the adjudicative outcome

The limited scope of the FBA/BIP

require-ments in the IDEA, their complete absence in

19 states, and the limited additions in the

remaining 31 states leave ample room for local

latitude Even in situations of more extensive

legal mandates, LEAs certainly may exceed

IDEA and state law standards in their policies

and practices, working proactively with

par-ents to avoid such legal disputes However,

they should do so as a matter of professional

discretion distinct from and not confused with

legal requirements As Board of Education v.

Rowley (1982) and its lower court progeny

about appropriateness under the IDEA remind

us, best practice standards are, unless

incor-porated in law, duly different from the

applicable legal minimum

The disparity between the literature and the

law is attributable in part to the normative lenses

in the special education profession Although the

aspirational norm of best practice is admirable,

the special education literature often fails to

differentiate the legal shall from the professional

should This confusion between legal

require-ments and best practice for FBAs and/or BIPs starts

with interpretations of the IDEA For example

Cable and Hendrickson claimed, "According to

[the] 1997 IDEA, schools must introduce [FBA] to

address serious and persistent problem

behav-ior includ[ing] that which militates against

classroom learning for the student or others"

(p 168) Unfortunately, rather than carefully

analyzing and citing the IEP special consideration

provision of the IDEA, they relied on a secondary

source that had more carefully recommended

such proactive steps (Yell & Shriner, 1997)

Another contributing factor is the special

education literature's lack of differentiation

between pertinent provisions in state laws and

those in SEA guidelines For example,

appar-ently relying on Smith (2000), Drasgow and

yell (2001) identified Iowa as being one of the

State with more stringent requirements "than

the IDEA has for FBAs" (p.248) Yet Smith

cited only guideline documents from Iowa's

Department of Education, whereas Iowa law

only repeats the IDEA language with regard to

FBA and BIPs As previously explained (Zirkel

& Thomas, 2010), even the guidelines that

have official SEA status are couched in terms of

recommendations rather than requirements,

and in any event, courts typically reject state

guidelines as nonbinding in light of their

failure to follow the formal processes of

legislation or regulations (Bethlehem Area

School District v Zhou, 2009; D.K v Abing-ton School District, 2010; Holmes v Millcreek Township School District, 2000).

A third reason for the difference between the professional lore and the formal law may

be a deliberate choice at the state level On one hand, the legal will of the official body politic may not match the normative level of the special education profession Alternatively, perhaps both the profession and the policy makers have chosen to reserve the technical details of FBAs and BIPs for LEA customization

of the resource materials at SEA Web sites and

in the special education literature This choice would recognize limits of law, including transaction costs, enforcement issues, and rigid formalism (e.g., Claes, Devroe, & Keirbilk, 2009; Pennock & Chapman, 1974)

Thus, perhaps Scott and Kamps (2007) were correct in premising the future of FBAs—and, implicitly, BIPs—on their "i:ontextual fit within the physical, systemic, and theoretical frame-works of contemporary schools" (p 149), while limiting the role of law to passing mention of

"the spirit" (p 149) of the IDEA Nevertheless, the results of this canvassing of state laws are subject not only to interpretive ferment (e.g., Osborne, Russo, & Zirkel, 2010) but also to legal fluidity More specifically, the search revealed movement in some states to change their laws concerning FBAs and BIPs For example, Mary-land has legislation, passed in 2002 and amended in 2006, that required establishment

of a task force to propose new regulations for student restraints and seclusion, including the triggering circumstances for FBAs and BIPs and the definition of a BIP (Md Code Ann., 2009) As

an illustration of movement in the other direc-tion, Utah in 2007 changed the status of its LRBl provisions from being part of its regulations to cross-referenced guidelines (Zirkel, 2008),

In conclusion, special education profes-sionals, including but not limited to those who focus on children with behavior disorders, need

to more carefully identify and interpret the legal requirements for FBAs and BIPs in both the IDEA and state law, with due differentiation of normative expertise and expectations This single, legally specialized "outsider" analysis, which has limitations that include but are not limited to the lack of operational criteria and interrater reliability, is intended to stimulate, not substitute for, such scholarly endeavors as the foundation for advocacy and advice to policy makers for the sake of effective programs

for students with disabilities This activity

includes informing the law-making process

not only at the state level but also during the

next reauthorization of the IDEA

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