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The GAP Attorneys Blog

Meeting the needs of people with disabilities, their families, educators & service providers

Posts Tagged ‘behavior intervention plan’

School provided FAPE, despite no FBA or parent counseling

Thursday, May 29th, 2014

M.W. v. New York City Department of Education, 61 IDELR 151 (2d Cir. 2013): A federal Court of Appeals upheld the New York State Review Officer’s (SRO) determination that a school district provided a student with autism, ADHD, speech and language disorders, and fine and gross motor deficits, a free appropriate public education (FAPE).  The parent contended that the district’s failure to conduct a functional behavioral assessment (FBA) and the IEP’s failure to provide parent counseling and training denied the student a FAPE.

The Court agreed with the SRO that an FBA was not necessary, as the student’s IEP adequately identified his behavioral impediments along with strategies to address those behaviors.  Accordingly, since the IEP adequately addressed the student’s problem behaviors there was no harm in failing to conduct an FBA.  Similarly, the resources available within the student’s proposed school were sufficient to address any deficiency by failing to provide parent counseling and training.  The Court noted that a failure to provide parent counseling and training, in and of itself, is not sufficient to result in a FAPE denial.  Therefore, the school offered the student FAPE.

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Failure to conduct proper FBA and develop a BIP preclude school district from recommending more restrictive placement

Thursday, July 4th, 2013

Doe v. Regional School Unit No. 21, 60 IDELR 228 (D. Me. 2012):  A federal district court upheld an impartial hearing officer’s determination that a school district’s recommendation to place a student with ADHD, anxiety disorder, low average cognitive ability, global developmental delay, mixed expressive and receptive language disorder, phonological disorder, and fine and gross motor delays, in a more restrictive environment without first conducting a proper functional behavioral assessment (FBA) and developing an appropriate behavior intervention plan (BIP).

The school district believed the student, whose behavior significantly interfered with his learning as well as that of others, needed a more restrictive setting, but the student’s parent insisted on a mainstream setting.  To address the student’s behaviors, a special education teacher and school psychologist discussed a behavioral plan, but no formal FBA was conducted and the informal behavioral plan was never shared with the IEP team.  The hearing officer (IHO) deemed this improper, and ordered the school to conduct a full FBA by a board certified behavioral analyst and develop a BIP.  The IHO also envisioned that, after the BIP had been implemented enough to provide sufficient data, if the student failed to make adequate behavioral progress, only then could the school appropriately recommend a more restrictive setting.

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6:1:1 class and behavior intervention plan appropriate for student with “severe” autism, exhibiting self-injurious and aggressive behaviors.

Tuesday, July 12th, 2011

N.M. v. New York City Department of Education, 56 IDELR 134 (S.D.N.Y. 2011):  A U.S. District Court deferred to the New York State Review Officer (SRO) who determined that a school district’s offer of a 6:1:1 classroom afforded FAPE to a student with “severe” autism who exhibited self-injurious and aggressive behaviors.  The parent sought tuition reimbursement for one-on-one instruction at a private school for the student, who was non-verbal, extremely socially immature, not toilet trained and dependent on others for all daily living skills.

The impartial hearing officer did not address whether or not the school district offered a FAPE.  Nevertheless, the SRO noted that the school district observed the student in her previous private school and revised her IEP in light of such observation.  The IEP team determined the student required a small class, consisting of no more than six students, one teacher, and one teacher’s aide, and a behavior intervention plan (including a token system).

The Court deferred to the SRO’s decision, noting considerable evidence in the record to support the adequacy of the recommended 6:1:1 class.  The parent sought to limit the analysis of the proposed IEP only to that which was included in the document itself.  However, the Court said it was not error for the SRO to consider testimony from the 6:1:1 classroom teacher regarding the nature of the class, which helped to elaborate on the supports the student would have received in that placement.  As a result, the SRO (and the Court) determined that the school district offered a FAPE.

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