Legal Points for FBAs and BIPs

While Illinois courts have refused to adopt specific legal requirements for FBAs and BIPs, there is guidance available from other states (as discussed below). Courts and hearing officers will definitely look at the sufficiency of the behavioral planning in determining whether a FAPE has been provided. The cases discussed below are illustrative cases from Illinois.

1. Illinois does not endorse a specific legal scheme for BIPS, but there are worthwhile legal guidance from other jurisdictions.  In the case Mason City Community School District, 38 IDELR 50 at 199-201 (2001), the review panel set out a four-part test to determine the sufficiency of a BIP under IDEA.  First, the BIP must be based upon assessment data; second, the BIP must be individualized to meet the child’s unique needs; third, the BIP must include positive behavioral change strategies; and fourth, the BIP must be consistently implemented and monitored.
2. Behavioral intervention is defined as an “[I]ntervention based upon the methods and empirical findings of behavioral science and designed to influence a child’s actions or behaviors positively.” 23 Ill.Adm. Code 226.75 (emphasis added).  Both Federal and State regulations implementing IDEA reflect this emphasis on the need for positive behavioral interventions as part of the child’s IEP.  See Appendix A interpreting the regulations in 34 C.F.R. part 300 question 26, which states that a person knowledgeable about positive behavioral interventions should be part of the IEP when a child’s behaviors impede his or her education.  Question 38 states emphatically that failure to appropriately address behaviors that impede a child’s education is a denial of FAPE. 34 C.F.R. part 300 question 38. See also 23 Ill. Adm Code 226.220(e), 226.230(b), 226. 750(b); and Bristol Township School District, 36 IDELR 145 at 626 (2002).
3. FAPE was denied to a child on the autism spectrum in Grayslake CCSD #46, 37 IDELR 239 (2002), because the FBA and BIP were insufficient and untimely, and the staff lacked the expertise to undertake the task and failed to contract for staff with more expertise in behavioral intervention.  Residential placement and significant compensatory education were ordered.
4. FBAs and BIPs are often critical in making a legally sufficient determination on placement. Oak Park and River Forest H.S. District #200, 34 IDELR 161 (2001).  A valid FBA/BIP was a needed prelude to moving a child to a more restrictive placement.  In Sandwich Community Unit School District No. 430, 35 IDELR 173 (2001), a BIP was needed to address a child’s truancy, rather than changing to a more restrictive placement.  In District No. 211 v. Michael R., 44 IDELR 36 (N.D. Ill. 2005), a valid FBA and BIP that had been revised and reconsidered over time were important elements in supporting the district’s determination to move the child to a more restrictive placement.