Legal Update for Special Education Law – December 2024

Legal Update for Special Education Law – Updates from the U.S. Department of Education

By
William J. McPartland

Update Regarding OSEP Guidance for Functional Behavioral Assessments 

This month, the Office of Special Education Programs (OSEP) issued new guidance regarding the use of Functional Behavioral Assessments (FBA) to create a supportive learning environment for students. The guidance was jointly issued by the Office of Elementary and Secondary Education (OESE). 

The guidance notes, behaviors that interfere with learning and overreliance on exclusionary discipline continue to be a top concern amongst both educators and families. The guidance indicates that FBAs should be used as a strategy to support any student whose behavior interferes with learning, not just those with IEPs. The guidance also indicates that parental consent is required if the FBA is one of the assessment tools used in an initial evaluation or reevaluation that meets the IDEA requirements. 

The guidance regarding FBAs of non-IDEA eligible students is new. This new recommendation regarding the use of FBAs may be problematic for districts. It creates new issues regarding a district’s child find obligation, as well as parental consent for evaluations. 

Before proposing an FBA of a student without an IEP, we recommend a conversation with one of our special education attorneys.  

 

Legal Update for Special Education Law – December 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.