Last month the 5th Circuit issued a short opinion that basically says “we agree with the 41-page decision from the lower court. Northside did nothing wrong.” In that lengthy lower court decision the court addresses a number of issues, including FBAs and BIPs. Toolbox issues!!
The case involved a preschooler with autism who engaged in behaviors that impeded the learning of the student or others. The district did a FBA (Functional Behavioral Assessment) and a BIP (Behavior Intervention Program) and the parent complained of both. The court made some key points about FBAs and BIPs:
- “IDEA provides no explicit requirements for FBAs. Rather, industry standards provide the framework for such an evaluation.”
- “FBAs rely on the premise that all behaviors serve a purpose.”
- The purpose of a FBA is to “explore a child’s misbehavior and discover what, if anything, can be done to address it and prevent it from occurring again.”
- A FBA is “an educational evaluation under the IDEA.”
The court held that the district properly addressed the boy’s behaviors. The ARDC focused on physical aggression and spitting “because they were most disruptive to his learning and progress when they occurred.” The district charted these behaviors, which enabled it to show that progress was made:
For instance, his behavior chart data from Langley Elementary showed that he went from a high of spitting 44 times in a week in March 2016, to the last five weeks of that school year as only spitting 7, 8, 2, 4, and 0 episodes of spitting, respectively. His behaviors of hitting and throwing show similar progress.
The court noted how the school kept the parents in the loop. There was a daily communication log, and a smart phone app to facilitate communication, a daily behavioral chart and visual schedule. As usual in a case that ends up in litigation we see a lot of effort on the part of educators to not only do their jobs, but also, to document the fact.
In the Toolbox Training our firm provides we emphasize that the most important of the ten “tools” is Tool #1—a BIP. A BIP works well only if it is supported by a firm foundation of evaluation information pertaining to the particular student. Here, Northside ISD had the foundation, provided the service and documented that it did. Hats off to Northside, and to Elvin Houston and Stacy Castillo from our firm’s San Antonio office, for representing the district in this litigation.
The case is Bruno v. Northside ISD, decided by the 5th Circuit on December 17, 2019. The Dawg found it on Special Ed Connection at 119 LRP 47090. The more explanatory lower court decision is at 120 LRP 150.
DAWG BONE: FBAs and BIPs ARE LIKE SALSA AND CHIPS: THEY GO WELL TOGETHER.
Tomorrow: Board member recusal: when should that happen?