Failing to Understand the Function of a Behavior Can Result in Significant Special Education Liability

A thorough and well-written functional behavioral assessment (FBA) is the heart of a successful behavior intervention plan (BIP).  So much so that many states require an FBA prior to the development of a BIP.* But what information is critical to the development of a BIP?  A good FBA should provide data regarding what triggers certain behaviors as well as information regarding the functions that the behaviors serve.  For instance, some behaviors are attention-seeking in nature.  The student is engaging in the behavior in order to gain attention from peers, adults, or both.  Other behaviors are intended to provide an escape from a situation or avoidance of an undesired task.  In some situations, the behavior affords the student access to specific items or activities, such as grabbing a toy out of another student’s hand or refusing to stop playing a game on a phone or device.  In other situations, behaviors may be self-stimulatory in nature, where the behavior itself provides the student with a sense of calm or pleasure.  This can include behaviors such as rocking, hand-flapping, tapping, etc.  In our upcoming Legally-Defensible FBAs & BIPs workshop, we will be exploring the concepts of FBAs and BIPs/PBSPs through the lens of caselaw, analyzing what the courts have said about the topic and what the law actually requires. 

So why is it important that schools determine the function of a behavior?  Easy – we can’t effectively address the behaviors until we fully understand when and why they are happening.  For instance, a student may be refusing to do work in class.  If the task presented is a difficult one, the refusal might be because the nature of the work is too difficult and frustrating for the student.  In that case, the refusal is an escape-based behavior aimed at getting the student out of having to face the frustrating task.  It might be because the student knows if he participates in active refusal, he’s going to get a strong reaction from the teacher and, sometimes, from other adults, if the teacher requests assistance from someone else.  That might reinforce a need for attention.  Or the defiance may be getting him lots of attention from his peers – either positive or negative.  Finally, if the student is refusing to do even the simplest of assigned tasks because he knows that when he refuses, he will just be able to play on his phone and will not be prevented from doing so by the already-exhausted teacher, who is just picking her battles in the classroom.  In that case, he is able to unilaterally choose a more preferred activity.  Thus, his work refusal opens up access to something more desirable. 

A good FBA will analyze all of the factors at play.  What is triggering the negative behavior?  Is it a difficult task?  Is it any demand placed by the teacher for independent work, regardless of how easy it is?  What is the consequence of the behavior?  What is the student getting from of the situation?  When done well, and FBA can help the IEP team better understand the nature of the behaviors and the strategies that might be used to effectively address them when they occur in the classroom.  Without this type of comprehensive information, behavior interventions and strategies are little more than guesswork and assumptions, but with it, the team can develop an effective behavior intervention plan.

It is not until the IEP team is able to understand the triggers and the functions of an undesired behavior that they can truly implement measures aimed at addressing the behavior with a positive behavior intervention plan.  Conversely, if the team develops strategies that are not specifically tailored to the student’s specific behaviors and functions, the team may inadvertently reinforce the very behavior that they intended to address.  For instance, in Waukee Community Sch. Dist. V. Douglas and Isabel L., 51 IDELR 15 (S.D. Iowa 2008), time-outs were being used for whenever a student engaged in non-compliance.  The non-compliance, however, was an escape-based behavior so the time-outs, instead of being a positive way to address the behavior, were actually inadvertently reinforcing it.  That negative reinforcement ultimately resulted in liability for the school district.  Similarly, in the same case, hand-over-hand intervention was also being used as part of the BIP when the student was aggressive towards peers.  The court deemed this to be equally inappropriate, since peer aggression is an “attention-seeking” behavior, for which hand-over-hand is not appropriate.  The hand-over-hand technique was unintentionally having the opposite impact that it was designed to have.  It was actively reinforcing the negative behaviors, since it was serving to actually intensify same function as the original behavior.  In that case, the school district’s BIP actually caused more issues than it resolved by reinforcing the student’s negative behaviors.

Time-outs can be a very effective positive behavior support strategy, and research has shown hand-over-hand to be highly appropriate in some instances.  However, context matters, and it is up to the IEP team to use the information at hand – hopefully provided in a detailed an thorough FBA – to determine the best approach to any given behavior.  Failure to base behavior interventions on real-life data may result in unintended legal liability. 

Join us at next week's full-day  Legally-Defensible FBAs & BIPs workshop to learn more about what the law requires of schools with regards to FBAs and BIPs. Can't make it or not in the area? Click here to inquire about having Atty. Gilsbach as a guest speaker at your school. Atty. Gilsbach is an experienced school law attorney who provides school law trainings for schools nationwide.

*States differ significantly with regards to FBA and behavior intervention regulations.  In Pennsylvania, all behavior intervention plans must be based upon an FBA.  Arkansas, Delaware, Nevada, Pennsylvania, Rhode Island, Tennessee, Vermont and Wisconsin all have legal provisions that require an FBA prior to developing a BIP involving restraint, seclusion, and emergency intervention.  Montana and New York require an FBA prior to the use of aversive techniques (which are prohibited in Pennsylvania), and Louisiana requires an FBA when an IDEA-eligible student engages in self-injurious behavior.