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How to Use FBA and BIP Information

The most important thing to understand about the relationship between FBAs and BIPs is that the findings of the FBA must ultimately be the foundation for the recommendations of the BIP.  The FBA exists to identify why the child is acting the way he or she is, while the BIP considers the information that the FBA has gathered and then uses it to develop the best plan going forward. 

Who Should be Involved in the FBA/BIP Process?

The federal regulations only say that "school personnel" should be involved in the FBA/BIP process, and it is normally the case that some combination of school administrators, teachers, social workers, psychologists and other school workers are involved.  However, it is not unusual - and often is highly advisable - for the parents of the student to be involved, as well.  There are a few reasons for this:
1. If parents are involved in the FBA/BIP process, then they're much more likely to be cooperative with school officials when the actual behavior intervention plan is finalized.
2. Parent are capable of providing a great deal of valuable feedback about their children.  As well as school officials and teachers know the children they work with, no one is going to know kids better than their parents.  
3. Schools that are willing to work with parents in the FBA/BIP process are showing that they have an inclusive approach, and this will help them guard against future litigation.  
If the recommendation under a BIP is change of placement of the sped student under 34 CFR 300.536, then the student's regular IEP team must be involved, and that team includes school personnel but must also include the child's parents and other people the parents choose to include, including possibly an outside psychologist and/or attorney.

Functional Behavior Assessments and Behavior Intervention Plans for Special Education Students

As a general rule, special education students have to be kept in their regular placement as determined in their Individualized Education Program (IEP).  However, at times special education students will misbehave and may be disciplined by removal from that regular placement.  In fact, research shows that special education students generally tend to get disciplined more often than their general education peers, and also that the discipline for them may often be longer and more severe.  Luckily, however, the law does offer protections for special education students, but parents have to use the law properly.  

Part 2: Handling Disagreements on Placements of Kids with 504s

Options for resolving disputes regarding a kid on a 504 plan are different than they are for students on an IEP.  They're not as efficient and speedy as options for resolving disputes concerning students on an IEP.  If there is a dispute involving a student on a 504 plan, school districts must conduct an impartial hearing when parents disagree with their child's identification, evaluation or placement.  The details are left up to the discretion of the school district and hearing officer.  Parents often are unhappy with this option, so they may choose to file a complaint with OCR. This complaint may or may not be accepted by OCR, it will take several months for OCR to deal with it and OCR has limited enforcement mechanisms.  OCR will threaten to pull funding from a school district for violations, but this is extraordinarily unlikely.  
Still, OCR can help parents and districts mediate disputes.  Plus, the possibility of OCR consequences normally is enough to get districts to remedy their behavior in case OCR has determined that a district has engaged in a discriminatory fashion. What's particularly frightening for districts is if a parent files suit in federal court under 42 USC 1983 (simply known as "1983") and can prove discrimination against their 504-protected child.  If a parent wins such a suit, the damages could be substantial, and the district would have to pay the parents' attorney fees, which easily could get in the tens or even hundreds of thousands in a federal case.  

Part 1: Handling Disagreements on Placements of Kids with IEPs

With respect to students on an IEP who are being disciplined, sometimes disagreements will arise between the child's parents, who believe that the problem behavior is a manifestation of the student's disability or a school's failure to properly implement the IEP, and the rest of the IEP team, who believe this not to be the case.  If this happens, it is a serious problem, and the school district is going to have to make some very important decisions.  Things for the district can turn very messy very quickly - not to mention very expensive - if there is a determined parent, and the district must make a decision as to whether it wants to have this fight or wants to work out some kind of a compromise with the parent. 

Special Education Students Must Receive Services During Disciplinary Removal

Under th Individuals with Disabilities Education Act, students on an IEP must continue to receive education services when they are removed from their regulation education setting.  Normally the removal is through suspension or expulsion.  While the student is in removal, he or she may be placed into an interim alternative education setting (IAES).  But wherever that student is, the IEP still must be followed.  This means that, even during removal, a student must continue to receive services while they're out of school.

Kishinevsky & Raykin, Attorneys at Law
2851 South Parker Road, Suite 150
Aurora, CO 80014-2722

Phone: 720-863-4256
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