Toolbox Tuesday!! When is it OK to do a FBA without parent consent?

The Toolbox is a full day training program designed to help educators serve students with disabilities who present challenging behaviors.  Throughout the Toolbox we emphasize compliance with the law and respect for the role of the parents.  For example, it’s important that the school obtains parent consent when it wants to conduct an evaluation. That includes an FBA—Functional Behavioral Assessment.  So in answer to the question posed above—when is it OK to do an assessment without parent consent, the Dawg’s answer is “never.”


There are always exceptions.  The Mountain Home School District in Arkansas got away with doing an FBA without consent.  The court slapped the district on the wrist, but it was a pretty light slap.  The parent complained that the district did not get her consent to do the FBA, nor did it pursue legal action to override her lack of consent.  The court held that even if this was a procedural violation of IDEA it made no substantive difference.  The court applied the “no harm, no foul” principle. 

This ruling seems curious until you read the footnote:

It is a rare and perhaps altogether unique occasion for the undersigned [BTW: only judges refer to themselves as “the undersigned”] to preside over a lawsuit in which a plaintiff complains of a defendant’s decision not to sue the plaintiff. 

The Court is left with the distinct impression that literally the only way the District could have avoided this lawsuit would have been to turn the IEP team effectively into a team of one—consisting solely of Ms. Albright—and to consent in every single respect, whether material or immaterial, to Ms. Albright’s IEP wishes. But that is not what the IDEA requires.  Rather, an IEP team must include not only the parents of the child with a disability, but also educators and school officials, along with other individuals, and “collaboration between IEP team members” is an explicit goal of the IDEA. 

Thus we see, once again, the unwritten rule in special education litigation. The court will study the facts and apply the law, but will do so while quietly assessing the reasonableness of the parties.  The court found Ms. Albright unreasonable. 

The case is Albright v. Mountain Home School District, decided by the federal court for the Western District of Arkansas on November 5, 2018. We found it at 73 IDELR 93.


Tomorrow: do you know what I.D.F.W.U. means?