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New OSEP Guidance Requires Parental Consent for FBA’s

New guidance issued by the Office of Special Education Programs (OSEP) of the U.S. Department of Education indicates that if a Functional Behavioral Assessment (FBA) is conducted in order to determine behavioral supports and services required for an individual child, that FBA constitutes an “evaluation” under IDEA for which parental consent is required.  According to OSEP, the only situation in which parental consent would not be required for an FBA would be if the FBA was being conducted with respect to the whole school to assess the effectiveness of behavioral interventions general, and was not directed at any specific student.  This is a significant change of direction for OSEP, since previous guidance and cases decided in this area had suggested that an FBA should be considered either a teaching methodology or consistent with general ongoing observation of a child’s behavior and data collection, neither of which would constitute an “evaluation” requiring parental consent.  Following this guidance, parents may now claim entitlement to an independent FBA if they disagree with the FBA conducted by the school district, since the FBA is now considered an evaluation, triggering the independent educational evaluation (IEE) procedural safeguards.  A copy of the OSEP letter can be found at Letter to Christiansen, 48 IDELR 161 (OSEP 2007).