Dated February 9, 2007

Dr. Kris Christiansen

Assistant Superintendent of Special Education and Related Services

Washoe County School District, Student Support Services

P.O. Box 30425

Reno, Nevada 89520-3425

Dear Dr. Christiansen:

Thank you for your recent letter to the Office of Special Education
Programs (OSEP) in which you forwarded to my attention a letter
submitted initially to this office dated May 10, 2005. I apologize for
the delay in responding. You are asking for clarification under Part B
of the Individuals with Disabilities Education Act (Part B) regarding
whether a Functional Behavior Assessment (FBA) always triggers the
procedural safeguards applicable to an evaluation or an independent
educational evaluation (IEE) and whether parent consent is required
prior to conducting an FBA.

In your May 10, 2005 letter, you reference an OSEP letter to Montana
attorney Jennifer L. Scheinz dated June 7, 2000, in which OSEP
responded, based on the situation posed by Ms. Scheinz's query, that an
FBA conducted subsequent to the initial evaluation was a reevaluation,
and that a parent was entitled to an IEE under applicable regulations if
the parent disagreed with the child's FBA. On the other hand, you point
out that the clarification provided in OSEP's 22nd Annual Report to
Congress on the Implementation of the IDEA and in Technical Assistance
Guide #1, suggests that an FBA is a teaching methodology, which requires
ongoing data collection to determine the effectiveness and efficiency of
the behavior support plan." See OSEP Center on Positive Behavioral
Interventions and Supports, [Applying Positive Behavioral Supports and
Functional Behavioral Assessments in Schools]{.underline}, 9, 17
(1999).'

Your May 10, 2005 letter also makes reference to the U.S. Supreme
Court's decision in [Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc.]{.underline}, 467 U.S. 837, 843-44 (1984), and you ask to
which OSEP interpretation your School District should give deference. As
explained below, we do not believe that the Scheinz letter and the TAG
are in conflict.[^1]

If an FBA is used to evaluate an individual child in accordance with 34
CFR §§300.304 through 300.311 to assist in determining whether the child
is a child with a disability and the nature and extent of special
education and related services that the child needs, it is considered an
evaluation under Part B and the regulation at 34 CFR §300.15. Parental
consent, consistent with 34 CFR §300.300(a) and (b), is required for an
FBA conducted as an individual evaluation or reevaluation. If the FBA is
conducted for individual evaluative purposes to develop or modify a
behavioral intervention plan for a particular child, under 34 CFR
§300.502, a parent who disagrees with the child's FBA would have the
right to request an IEE at public expense. These regulatory provisions
are consistent with the policy clarification provided in the Scheinz
letter.

In contrast, the excerpt from the TAG reproduced in the 22nd Annual
Report to Congress on the Implementation of the IDEA provides technical
assistance for public agency personnel who wish to utilize positive
behavioral supports and FBAs as methodologies within the agency's
schools to improve the behavior of all students in the schools. The TAG
is a compilation of research that reflects the opinions of the authors
and does not necessarily reflect the views of the U.S. Department of
Education. The purpose of the FBA is summarized in the TAG as "a process
of understanding behavior in the context in which it is observed and of
guiding the development of positive behavioral interventions that are
relevant, effective, and efficient. FBA is a best and preferred practice
for all challenging behavior, not just for behavioral events that result
in suspensions or other disciplinary actions" TAG #1, at 9.

The TAG does not state that parental consent would not be required for
an FBA conducted as "a best and preferred practice for all challenging
behavior," as your letter suggests. However, we believe that if the FBA
is intended to assess the effectiveness of behavioral interventions in
the school as a whole, the parental consent requirements in 34 CFR
§300.300(a) and (c) generally would not be applicable to such an FBA
because it would not be focused on the educational and behavioral needs
of an individual child. If an FBA is used, for example, in the context
of\
positive behavior supports as a process for understanding problem
behaviors within the entire school and to improve overall student
behavior in the school, it generally would not be\
considered an evaluation that would require parental consent, unless
such consent is required from the parents of all children in the school
prior to conducting such an evaluation. 34 CFR §300.300(d)(1)(ii).

Your letter also asks: "If the IEP \[individualized education program\]
team has developed appropriate goals and objectives, and specially
designed instruction and wish to complete an FBA to determine the
effectiveness of the teaching methods and positive behavioral supports
used for the student to make progress towards IEP goals/objectives, is
this considered an assessment, therefore requiring parental consent?"

Consistent with the explanation provided in the Scheinz letter, we
believe that parental consent would be required in this situation. Under
34 CFR §300.324(a)(2)(i), if a child's behavior impedes his or her
learning or that of others, the IEP Team must "consider the use of
positive behavioral interventions and supports, and other strategies to
address that behavior." If an FBA\
is being conducted for the purpose of determining whether the positive
behavioral interventions and supports set out in the current IEP for a
particular child with a disability would be effective\
in enabling the child to make progress toward the child's IEP
goals/objectives, or to determine whether the behavioral component of
the child's IEP would need to be revised, we believe that the FBA would
be considered a reevaluation under Part B for which parental consent
would be required under 34 CFR §300.300(c).

Based on Section 607(e) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
but represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented

I hope the information contained in this letter is helpful. If you have
any other questions, please feel free to contact my office.

> Sincerely,
>
> /s/
>
> Alexa Posny
>
> Director
>
> Office of Special Education Programs

[^1]: Since the issuance of the OSEP response to Ms. Scheinz and the
    OSEP publication of the Technical Assistance Guide referenced in
    this letter, the Department has published a new set of final
    regulations implementing Part B of the Individuals with Disabilities
    Education Act (Part B) in 34 CFR Part 300\--Assistance to States for
    the Education of Children with Disabilities program. The regulatory
    citations provided in this letter are to the final Part B
    regulations published in the Federal Register on August 14, 2006 at
    71 Fed. Reg. 46540, which became effective on October 13, 2006. The
    policy clarification contained in the Scheinz letter and the TAG
    continues to apply even though some regulatory citations have
    changed in the final Part B regulations.