Education Law

FBA Requires Parent Consent and Are Subject to IEE Request

By Charles Fox

A question that has come up with some frequency has been whether schools need to get parental consent before doing a Functional Behavioral Assessment ("FBA"). Many school districts have taken the position that an FBA is more an informal assessment, and therefore no consent is required. Schools have even more emphatically  taken the position that parents can not request a free independent educational evaluation ("IEE") if the school's FBA was deficient.

Many thanks goes out to fellow blogger Randy Chapman who has brought out a fairly recent U.S. Department of Education OSEP opinion letter that answers yes to both questions. That is, for a school to conduct an FBA the parent must consent and the parent has the right to seek an IEE to get another FBA accomplished.

It may seem like a small point but it is not.  FBAs too often arise in the heat of the moment when the school is building momentum to move a child to a more restrictive placement. The parent comes to a meeting and gets clobbered with an FBA data that shows what a horrible behavioral problem his or her child has been for some time, of course often unbeknownst to the parent. Armed with this OSEP memorandum, the FBA would be in violation of this OSEP guidance without parents' knowledge and written consent; certainly enough to take the wind out of the district's sails sufficient for the parent to regain at least equal footing with the school. The next step would be to then ask for an IEE for a new FBA, so the student gets a fair and impartial assessment of the behaviors which are interfering with their education.

Full post as published by Special Education Law Blog on June 27, 2008 (boomark / email).