Hi and welcome to Ask Missy Mondays where I respond to email questions from readers who have questions about behavior. Today’s question comes from Amanda who is employed as a behavior analyst in a school district. Amanda’s question actually came in following a webinar that Rebecca and I provided on Special Education Law and Ethics for Behavior Analysts.
During the webinar, we discussed the importance of acquiring parent permission before conducting any assessment on a child with an Individualized Education Program (IEP). Of course, this also includes obtaining written permission for conducting a Functional Behavioral Assessment (FBA).
As a result, Amanda asked this question:
“First of all, our district completes FBA’s as well as something we refer to as Behavior Observations. Let me explain how we are distinguishing the difference between the two.
Behavior observations are completed by the BCBAs. They consist of multiple observations and data collection using tools such as an ABC form, frequency data collection, and/or momentary time sampling. Based on the data we collect, we hypothesize a function of the behavior and develop written recommendations.
When an FBA is completed it incorporates more parts such as the observations, interviews, and questionnaires such as the MAS and the FAST. Once all this data is summarized a function is hypothesized and written recommendations are made.
I am wondering if what we are considering to be a behavior observation is actually a shortened FBA?”
Amanda, first, thank you for taking the time to write. Many parents and behavior analysts alike do not realize that an FBA requires written parental consent PRIOR to its commencement. Under the Individuals with Disabilities Education Improvement Act, school personnel must obtain written permission before conducting any assessment or evaluation on a child with disabilities (including behavior disorders or autism).
Second, you are absolutely correct in guessing that both steps you have described above (behavioral observations and the FBA) are in fact, FBAs. Had you merely observed a child and made verbal recommendations to the teacher about how to respond to certain behaviors, then a behavioral observation is probably appropriate without parental consent. However, since you collected data, analyzed the data, and formed a written opinion about why the behavior was occurring, regardless of what your district calls it, the procedure was still a functional behavioral assessment and required written parental permission prior to its commencement.
We want to hear from readers. Does your district obtain your written consent prior to completing an FBA? Has your child’s district ever completed an FBA on your child?
If you have questions about behavior that you would like assistance on, please email Missy at askmissy at appliedbehavioralstrategies dot com.
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Can I just say what a relief to find someone who actually knows what theyre talking about on the internet. You definitely know how to bring an issue to light and make it important. More people need to read this and understand this side of the story. I cant believe youre not more popular because you definitely have the gift.
Thank you. We love positive feedback.
A school can conduct an FBA without parental consent IF its in response to behaviors determined to be related to a disability. This constantly holds up in court. If the FBA is more an “evaluation” for data then it absolutely requires parental consent. The distinction is kind of is the FBA proactive or reactive but its a little more complex than that.
Thanks for reading and for writing Shawn. Please send those court cases to me. I’m completely unfamiliar with them.
The IDEIA is crystal clear on all assessments for children with disabilities. Parent permission is REQUIRED.
What about a behavioral assessment initiated by an SST (Student Study Team), does that require parental approval? My daughter is in the IEP process now and came home yesterday wondering why ‘people are spying on her’….. I was at a loss. To date we have only authorized an OT evaluation. I called the principal who said the observation was initiated by SST and was not part of the IEP. That SST’s ask the school behavior specialist to observe students all the time to help the teachers develop strategies and make recommendations. Should that happen without parent awareness and consent?
Hi Jean and thanks for stopping by! You have asked a GREAT question! So, the SST is a general education program. If your daughter does NOT have an IEP, then she is not protected by IDEIA. HOWEVER, she is still protected under client rights if a BCBA is involved. All BCBAs must follow the code which just changed on 1/1/2016.
If a BCBA was involved, then I would explain to him/her that you did not give permission for the observation and that you are aware of the code of ethics for BCBAs. Keep in mind that a behavior specialist is not the same thing as a BCBA. A behavior specialist often has less formal training and they don’t have to follow the BACB ethics code.
I am not as familiar with OT and SLP and school psych requirements. You would need to check their codes to see if they are also required to have consent prior to assessment.
If your child has an IEP, then you should have been informed of the observation/assessment if, in fact, staff observed her.
Good luck in this situation!
I gave consent to do an FBA in 2013. The school did not create/write a behavior intervention plan, but rather we added some strategies under supplementary aids and services. This allowed her to be VERY successful during the rest of the year, as well as extremely successful the following year. This year we are having LOTS of difficulty, due to not implementing the IEP. So, they are now collecting new data and want to write a behavior plan and add to IEP. My question is: Is the consent from over two years ago still valid or do they need new consent?
Loved reading the information above.
Thank you, Janet, for stopping by and for your positive feedback. It thrills me to help others learn about processes and procedures.
The consent from 2 years ago would not be valid and new written consent must be obtained. Please keep in mind that if a BCBA is involved, additional rules apply beyond those related to special education law. The BCBA must follow the BACB Code of Ethics which require written consent for the FBA as well as family participation in the process.
I hope the new assessment and subsequent plan serve to help your child!
Hi-
Just had a question about your response. Is the team actually completing a new assessment? It simply says they are now wanting to write a BIP to add to the IEP (which would require parent participation). It doesn’t say anything about doing a new assessment. So, why would a new consent to evaluate be required if they are not conducting another FBA?
Hi Teacher H, it would be inappropriate to write a new BIP without first updating the FBA or conducting a new one. I would be concerned if someone attempted to update an old BIP or write a new one without assessment to guide the process.
Should the team decide to develop a BIP or modify an old BIP without an assessment, they would be taking a huge risk on the plan being ineffective. This would be equivalent to going to the doctor, him prescribing medication for the flu since the child had the flu the last time the doctor saw him 2 years ago. The doctor would ideally assess (take vitals such as temperature or blood samples, or urine samples) to determine the problem and then prescribe a new course of treatment.
Hope this helps!
My question is can a parent stop and FBA after giving approval?
My son just started middle school in September. Prior to going (5th grade) his behavior had gotten so much better and he was released from Therapeutic Day Treatment. He began middle school and a different medication the same day. His behavior began to revert and he became very impulsive. After two weeks the school hounded me about an FBA. I declined because there was no real effort made on the schools part to try lower level interventions. Since declining, he has served 6 suspensions for talking back and being late due to locker issues. Many of the suspensions have been unjust and he more than likely would have served lunch detention for most of them.
In November, they still pushed for the FBA. Since agreeing to the FBA, he has had no suspensions and finally after 3 months they are addressing the locker issue. Presently he is on another medication that has been working well. I was not in favor of the assessment because I knew it would take time for his medicine to take effect. Now that it has he is doing well again like he did at the end of 5th grade. I feel thatthe FBA is unnecessary at this point and I don’t feel that he should have a behavior intervention plan. I really believe that the school could have done other interventions to prevent many of the behaviors that were displayed, but chose not to. I feel like they’re taking behaviors that he’s had in the earlier part of 4th grade and the earlier part of 5th grade and trying to put together in an assessment to assess what is going on now. I know once I changed his medication that’s when I began to see a change in his behavior but now that that’s under control I’m not sure what the assessment and the behavior plan is for.
I spoke to an advocate because I wanted to stop the assessment and to see if he would do better under a different program at a different school. I to mention that it hasn’t felt like much of a team effort. I’ve had to go to his doctor just to get a doctor’s note for him to make up work because the teacher states that she will not let him make up work even though the medicine is making me sleepy. It’s just been a fight to have things done properly for him and I’m really getting exhausted.
Hi Rowena,
Thank you for stopping by the blog and taking the time to write.
Yours is a very complicated question which is going to result in a complicated/grey answer.
My first question is related to the person responsible for completing the FBA. If the person conducting the FBA is a BCBA, then he/she has to follow the BACB Professional and Ethical Compliance Code. That code requires written parent consent prior to the FBA and written parent consent prior to BIP development. The code also requires parent participation in all aspects of planning and modifying the behavior change program.
However, if that person is not a BCBA, then they have few, if any rules to follow. Licensed clinicians (e.g., social workers, psychologists, etc) must follow their state and federal ethics code. Each profession will have its own code. At this time, teachers and administrators do not have those types of codes in most places.
Keep in mind that many states have laws regarding seclusion and restraint. You should check your state’s law to ensure that school staff are following that law. Here is a link where you may find additional information about each state’s rules: http://www2.ed.gov/policy/seclusion/seclusion-state-summary.html
My recommendation is that you complete an FBA, design an appropriate intervention, implement the intervention, and monitor process. We know that this approach is far more effective than medication and medication adjustments.
The only literature that supports medication for behavior is that of the ADHD area and the current recommendation is behavioral intervention first followed with behavior intervention combined with medication.
I am unclear if you can withdraw your consent for the FBA but you are wise to consult an advocate or attorney.
I wish you the best of luck with this situation.
I have a question. My adopted son transferred to his current school with an IEP and BIP. Documentation shows that some kind of an FBA was done for behavior issues. The FBA and the IEP did not address his ADHD. The current school continued to complain about the behaviors and gave him in school suspensions and out of school suspensions. The current school exited our son out of his IEP because they determined that he was no longer eligible for Special Education services. How they have continue to complain about the behaviors. We took our son for a psychological evaluation. It determined that he was misdiagnosed with ADHD and changed his diagnosis to PTSD acute, trauma related. despite the school not wanting to do an FBA and an IEP evaluation, we did manage to get one started on him, by contacting our area AEA directly. He did qualify for an IEP, however it has been 4 months since the FBA was finalized and we still don’t have a IEP or BIP in place. Is this normal?
Oh wow! Now that is a hot mess!
Have you seen the recent letters from OSEP? Ther is one that addresses restraint and seclusion. Here is a link to the letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf
I would definitely hire an advocate or an attorney to assist you on getting an appropriate IEP or 504 plan that includes appropriate assessment and intervention to address the behaviors of concern.
In summary, if you child is being suspended and your child has a disability whether 504 or IEP, the district is required to address those behaviors using appropriate services and supports. Chances are, the child does meet eligibility criteria for behavioral needs.
I hope you can get this resolved! Thanks again for stopping by the blog.
Missy
I understand that parent permission is required to do an FBA. Is it also required that the parent is provided with the behavioral plan?
Hi Patti,
Thanks for stopping by the blog! I want to make sure I’m clear in my response. Under Federal IDEIA Law, very little direction exists regarding consent to the BIP. You will need to check your state law to determine if your state has rules around consent to the BIP. I highly recommend the review by Zirkel and we review it on our blog. Just search for Zirkel in our search tab.
The BACB Professional and Ethical Compliance Code (PECC) is crystal clear. BCBAs are REQUIRED to work with the parents when developing the BIP and then the parent must agree to the BIP in writing. Please see the BACB Code #4.02 and #4.04
Hi Patti, I seemed to have missed your comment and I apologize for the delay in responding.
With regard to a BIP, under the IDEIA, the parents should be provided a copy of any plan for their child. They should be involved in the creation of the plan and they should consent to the plan. But the law does not explicitly define how the BIP should be approached. For this item, I would keep with the spirit of IDEIA, which is to work with the family to create an amenable plan.
Under the BACB Professional and Ethical Code of Conduct, the BCBA is required to obtain consent, work with the family in the development of the BIP, and provide the family with a copy.
I was just informed in an IEP meeting that a BCBA and another district staff member would be observing my 4 y/o preK daughter multiple times. My daughter has an IEP no BIP and no diagnosed disabilty other than developmental delay. Is being told/informed the same as providing consent? I am concerned that a plan is in motion for placing her in a more restrictive environment.
Hi ES and thanks for stopping by the blog. I would be concerned that staff are observing your child and not explaining why. You must provide written consent for all assessments and you must be told of the purpose of those assessments. That is the IDEIA law.
Under the BACB Professional and Ethical Compliance Code (PECC), the BCBA must enter into a professional agreement to provide services for your child. At school, this is usually through the IEP or it may also be through the assessment process which REQUIRES written and informed consent. Also under the BACB PECC, the BCBA must obtain your written consent prior to starting an assessment. I, personally, would ask them to stop their observations, come back to PPT and ask them to provide you with the purposes of those assessments and ask for the form on which you may provide written consent.
Also, go through your paperwork and make sure you didn’t consent to the observations in writing. The meetings can be very overwhelming and papers are often flying this way and that.
Good luck! Why don’t you update us when you find out what is going on?
Thank you so much for the informative reply. I followed your input and did contact the school and asked specifically about the purpose and type of observation(s) occurring, and whether it was an FBA. I was told it was not an FBA or formal assessment at this point, and thus my consent was not required (I have not provided – am 100% and then some sure). In fact, the first observation had already occurred the day I inquired without anyone informing me and I suspect I would not have been told had I not directly asked. It was explained to me that this individual’s role is as a “coach” for the district special education department. She is not a BCBA. A second individual who is a BCBA was mentioned as part of the team that conducts the “observations”. The purpose was explained to me as the assessment will inform my child’s teacher this year as well as be considered in upcoming IEP transition meetings. So am I correct that this is an informal FBA termed a behavioral observation? And is it correct that my consent was not required? Thank you!
Thanks for the update ES!
And it just keeps getting better…….Let me first say that I am not an attorney and I am in no way providing you legal advice. If you feel that you need legal advice, please seek out an advocate or attorney using the COPAA website.
With that disclaimer, your district staff used the word “assessment” (or at least that is what you wrote above). In fact, you said, “assessment that will inform my child’s teacher this year”. Thus, written consent is REQUIRED. Moreover, they need to tell you exactly why they are doing the observations and exactly what data they are collecting.
I’m glad to hear that the person involved was not a BCBA. Should the BCBA become involved, she will need to have written consent from you to focus on your child.
Good luck and keep us updated!
Hi there, I have additional questions regarding the signed consent and then service agreement in the school setting. Is the standard school district form stating that an FBA will be conduced sufficient, with a verbal explanation of what goes into that? I’ve noticed schools aren’t as detailed as some of the consent forms out there. It just says FBA or behavioral assessment, and the parent signs. Secondly if ABA services are determined for the child in the district (i.e to monitor BIP and fidelity) does the parent need to sign a consent form for ABA services that is fully descriptive, or is agreeing to ABA services (without a written detailed description) on the IEP enough? Or is the BIP the description of services? Also at that point is it not also the school that is getting services, i.e the teachers etc…? Hope that makes sense. Thanks for helping clarify the role of the BCBA and keeping to ethics guidelines when employed by districts.
Hi Jackie,
Thanks for stopping by the blog and for taking the time to comment. I know I have said this in previous posts but I want to make sure that I say it again. I am not an attorney, nor am I giving legal advice and I am not speaking on behalf of the BACB.
With that said, your question is a good one. Let’s first tackle the consent to assess. We have to apply BOTH federal and state laws, and since you seem to be a BCBA, the BACB PECC (also known as the “Code”). Under “§ 300.304 (Evaluation), the IDEIA states that the public agency (i.e., the district) must provide notice to the parents of a child with a disability, in accordance with §300.503, that describes any evaluation procedures the agency proposes to conduct.” Because an FBA is an assessment/evaluation, the agency should thus, describe the evaluation procedures to the parents.
With regard to assessment, under the BACB “Code”, 3.03(a) “Prior to conducting an assessment, behavior analysts must explain to the client the procedure(s) to be used, who will participate, and how the resulting information will be used.
(b) Behavior analysts must obtain the client’s written approval of the assessment procedures before implementing them. In my opinion, a verbal explanation would suffice as long as the parent consents in writing. But, it seems that in this instance, federal law trumps the code, and thus, a written description should be provided.
Now on to the question related to ABA services….Under the IDEIA, § 300.300(b) A public agency that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child. The public agency must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the
child. Written consent is also required under the BACB Code (#4.04).
With regard to how detailed those services need to be, please refer to the IDEIA, § 300.320(4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child. And under that same part but section (7), The projected date for the beginning of the services and anticipated frequency, location, and duration of those services and modifications. The BACB Code is much, much, much more specific. In fact, under the Code, you are required to: involve the parents in the planning of the program (4.02), obtain written approval (4.04), describe the objectives (4.05), describe conditions for success (4.06), and describe environmental conditions that interfere (4.07).
And finally, with regard to “is not also the school getting services”? Well, it depends on your services. The BACB Code defines client very broadly in the glossary (yes, there is a glossary at the end of your code). In it, you will see that the child, the child’s parents, and possibly even the district is your client. However, in the Code (2.02) The behavior analysts’ responsibility is to all parties affected by behavior-analytic services. When multiple
parties are involved and could be defined as a client, a hierarchy of parties must be established and communicated from the outset of the defined relationship. Behavior analysts identify and communicate who the primary ultimate beneficiary of services is in any given situation and advocate for his or her best interests.
And if that doesn’t complicate matters, check this out: (2.04)(a) When behavior analysts agree to provide services to a person or entity at the request of a third party (school district?), behavior analysts clarify, to the extent feasible and at the outset of the service, the nature of the relationship with each party and any potential conflicts. This clarification includes the role of the behavior analyst (such as therapist, organizational consultant, or expert witness), the probable
uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. And (b) if there is a foreseeable risk of behavior analysts being called upon to perform conflicting roles because of the involvement of a third party, behavior analysts clarify the nature and direction of their responsibilities, keep all parties appropriately informed as matters develop, and resolve the
situation in accordance with this Code. And (c), when providing services to a minor or individual who is a member of a protected population at the request of a third party, behavior analysts ensure that the parent or client-surrogate of the ultimate recipient of services is informed of the nature and scope of services to be provided, as well as their right to all service records and data. And don’t forget (d), behavior analysts put the client’s care above all others and, should the third party make requirements for services that are contraindicated by the behavior analyst’s recommendations, behavior analysts are obligated to resolve such conflicts in the best interest of the client.
I know that this is very confusing. Ethical issues are not always black and white. The bottom line is this; if behavior analysts are practicing within public school districts, we have a responsibility to uphold the law (FERPA, ADA, 504, and IDEIA) as well as our BACB Professional and Ethical Compliance Code.
My son recently underwent a FBA. The observation periods quoted in the report predated my parental consent and were not directly observed by the person conducting the FBA.this seems not right.
My sons school just did this and did not get my permission. And shouldn’t this reflect good and undesired behavior? Also, why does this not include this incident that led up to the behavior? And where is the child’s side of the situation that lead up to the behavior? They held a emergency meeting with me and are trying to send my some to a different school. This is only after his IEP being fully in effect this year and only with 1 1/2 months of school this year. I only found out about them tracking his behavior when I got a call from my sons teacher ( 1 of only 2 calls this year) and she mentioned she was tracking his behavior for the school psychologist and then told me she could not give me the information she gathered and I would have to talk to the school psychologist. Frustrated in AZ!
Dear Frustrated in AZ,
Thanks for stopping by the blog. Unfortunately, unless you signed the district/state assessment form, the district cannot and should not start an FBA. Additionally, if a BCBA is involved, the BACB Professional and Ethical Compliance Code is being violated as written permission is required under the Code.
An FBA typically focuses on the challenging behavior. Often, good examiners will note when appropriate behaviors occur and which environments and people are supporting those behaviors. However, that may not always be in every FBA. It should be noted that the behavior intervention plan should focus on both the challenging behaviors and the appropriate behaviors.
A proper FBA is going to identify all the incidents that lead up to behaviors. Typically, if a child is restrained or secluded in an emergency, the team will identify the immediate triggers.
With regard to the child’s input, a proper FBA will include an interview with the student (if appropriate). If there is a restraint or seclusion, one would hope the team would ask the child about what happened.
Before uprooting a child and placing him in another school, the IDEIA indicates that the team should try all the available supplementary aids and services to support the child in the least restrictive environment. Thus, I would argue that an FBA would be one such aid/service. A quality BIP would be another. Training to implement the BIP would be yet another. And last but not least, data collection and oversight of the plan would be vital to a plan’s success.
Finally, the data collected on your child belong to your child. You have a right to review all of those. And if a BCBA is involved, there may be other areas of the Code that would apply here.
I think you are in need of an advocate to assist you. Please reach out to COPAA to find someone in your area and within your budget. If that is not possible, read everything you can on Wright’s Law as well as on your state’s page, and let them know you disagree and that there have been multiple procedural violations. Let them know that you want a stay put provision until all of these concerns can be addressed.
Good luck!!
I recently attended an iep meeting for an fba for a student. When it was brought up that the parent had not given written permission for the process of collecting data to begin the fba process we were told that the county did not need parent permission to collect the data. The student has been exhibiting challenging behaviors so this meeting was reactive in nature, not proactive.
I questioned the lack of securing written permission and was told “that law had been changed 5-6 years ago”. I knew this was was not true and decided not to waste meeting time challenging this during meeting time. Thoughts on how to address this please.
Hi Tanya, thanks for stopping by the blog. I have two answers depending on whether you are a BCBA or a teacher. For either situation, data collection is not an assessment.
As a teacher, one could collect data on anything related to student progress. However, moving over to analyze those data, particularly around the function of a behavior makes it an assessment and under IDEIA requirements, written parent consent is necessary.
If you are a BCBA or an RBT, collecting data on a student who is not your client could be problematic. Under the BACB Professional and Ethical Compliance, all work must be professional (i.e., have a contract–the IEP is a contract). All work must be done in conjunction with the client and/or guardian. And just as the case with a teacher, analyzing data for the function does make it an assessment so under the BACB Code, written consent is required prior to the assessment.
Note; Special Education Law hasn’t changed since 2004. Keep in mind that your district may have new procedures around data collection. The law requiring written consent for assessment is unchanged.
I’ve prepared a FBA for a student. I had the parent sign the consent form prior to starting. My psychologist now ways that we will have to have another consent form signed the day the IEP team meets to review the FBA and BIP. I’m very confused. We’re in SC if that makes a difference. When should the FBA consent for be signed? Thank you!
Hi Neil, thanks for stopping by the blog. Most districts have an official assessment form that should be signed prior to the start of any assessment. While this is usually done within an IEP meeting, that is not a required step. So if you had the family sign your own form, it is likely that the district wants you to use a district or state form.
Other than that, I’m not sure why a second consent is needed.