Toolbox Tuesday visits Arkansas

The Toolbox is our firm’s all day training program about special education discipline.  In the training we offer ten “tools” that educators can use to accomplish two important goals: serve each student appropriately; and maintain a safe school.  We always emphasize that Tool #1 is the most important tool because it’s the only tool that is designed to improve a student’s behavior. Tool #1 is a Behavior Improvement (or Intervention) Plan (BIP). 

ARD Committees are required to ask themselves at every annual ARD meeting if the student has behaviors that impede the learning of the student or others. If the answer is “yes,” the Committee members are then required to “consider the use of positive behavioral interventions and supports, and other strategies, to address the behavior.” The folks in Arkansas did that, but they did not conduct an FBA or develop a BIP.  The parents alleged that this was a violation of IDEA.

Nope. The court pointed out that the operative word is “consider.”  The folks in Arkansas did consider how to address the student’s behaviors. They were not required to do so via an FBA and BIP. 

This would play the same way in Texas if the issue came up at the annual ARD meeting. However, if the issue arose in the context of a proposed change of placement due to the student’s behavior, then state law requires an FBA and BIP.

The case from Arkansas carries a few other important lessons.  Such as:

The importance of evaluation data: The court noted that every time the amount of OT or speech therapy was reduced it was based on a recommendation from a therapist.  This was good evidence that the decisions were not predetermined.  The fact that independent therapists had different recommendations did not change the outcome, as the district considered them and was under no obligation to follow them.

Courts consider parental behavior: The court noted that some of the lack of progress by the student was due to the decision of the parents to pull the student out of school multiple days each week for outside therapy that could have been provided after school hours.

What does “predetermined” really mean?  The court rejected the parent’s argument that the IEP content was “predetermined” noting that the parents were invited to every meeting and that their outside service providers also participated.

It’s  Does T.B. and D.B. v. Key, decided by the federal court for the Eastern District of Arkansas on November 19, 2021.  It’s published in Special Ed Connection at 80 IDELR 10.


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Tomorrow: parent revokes consent, then changes mind.