ABA 527 M2 study questions - Assignment Essays

Instructions:
Complete each of the following questions regarding the assigned readings. You are expected to answer the questions in a meaningful way that not only correctly answers the question, but also indicates your level of understanding. You are NOT allowed to copy and paste directly from the text. All questions should be answered using your own words.

Reading Response/Study Question Submission:

2004 IDEA Reauthorization

1) What importance does this reauthorization have on the use of FBAs in public schools?

2) Who is responsible for conducting FBAs in public schools?

3) Explain the significance of a child being “removed” from school for more than 10 days?

4) How does the reauthorization support administrators in their use of Functional Behavioral Assessments? Explain supports for proactive use (before behaviors get too unmanageable) and reactive use (after students have already come in contact with disciplinary measures).

5. As a behavior analyst, why do you need to understand the IDEA law?

Fitzpatrick Case

1. What was the judgment regarding consent for an FBA?

2. Did the courts pass judgment on the school’s suspension of J.R.? If so, do you agree with this judgment?

Rubric

Study Questions (1)

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Study Questions (1)
Criteria	Ratings	Pts
This criterion is linked to a Learning OutcomeAnswers are comprehensive			5 pts Fully 2.5 pts Partially 0 pts Not Present	5 pts
This criterion is linked to a Learning OutcomeResponses are accurate and clear
This criterion is linked to a Learning OutcomeTerminology is used correctly
This criterion is linked to a Learning OutcomePuts answers in your own words
This criterion is linked to a Learning OutcomeIncludes original examples (where required)		2.5 pts Fully 1.25 pts Partially 0 pts Not Present	2.5 pts
This criterion is linked to a Learning OutcomeSpelling, grammar, and punctuation
Total Points: 25

2004 IDEA Reauthorization

Actions

Case Law: Fitzpatrick v Town on Falmouth

Actions

Using Functional Behavior Assessment in General Education Settings: Making a Case for Effectiveness and Efficiency

Actions

Factors influencing satisfaction among teacher candidates and cooperating teachers in conducting a functional behavioral assessment

ASSIGNMENTS

Electronic copy available at: http://ssrn.com/abstract=1151394

IDEA 2004: The Reauthorized FBA 1

Running Head: IDEA 2004: The Reauthorized FBA

IDEA 2004: Final Regulations and the Reauthorized Functional Behavioral Assessment

Heidi von Ravensberg, JD, Research Associate, Educational and Community Supports, Adjunct
Instructor, School of Law, University of Oregon
Ph: 541-346-2472, Fax: 541-346-5517
Email: hvr@uoregon.edu

Tary J. Tobin, Ph.D., Research Associate, Adjunct Asst. Professor, University of Oregon
Ph: 541-346-1423, Fax: 541-346-5517
Email: ttobin@uoregon.edu Mailing Address:

Educational and Community Supports
College of Education
1761 Alder Street
1235 University of Oregon
Eugene, OR 97403-1235

of Oregon.

Electronic copy available at: http://ssrn.com/abstract=1151394

IDEA 2004: The Reauthorized FBA 2

Abstract

This article discusses school administrators’ continued legal support for their use of functional

behavioral assessment and positive behavioral interventions and strategies for supporting

children with disabilities who exhibit problem behaviors under the Individuals with Disabilities

Education Improvement Act of 2004 and its implementing regulations. This article will help

school and legal administrators unacquainted with concepts versant to behaviorists, close the

knowledge gap and learn the functional behavioral assessment’s purpose, application and

implementation to more effectively train and manage personnel through the process. The

outcome for school administrators in obtaining the legal and practical knowledge presented here

will be to improve school climate.

Keywords: educational leaders, legal requirements, problem behaviors, students with disabilities,

functional behavioral assessment, IDEA 2004.

Electronic copy available at: http://ssrn.com/abstract=1151394

IDEA 2004: The Reauthorized FBA 3

Introduction

School administrators and special education directors continue to have legal support for

their use of functional behavioral assessment (FBA) and positive behavioral interventions and

strategies for supporting children with disabilities who engage in problem behavior at school

under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) which

took effect July 1, 2005 and its implementing regulations. There is an increasing number of

principals who are erudite in positive behavior supports who call upon their personal knowledge

or that of experts to effectively train and guide school personnel through the process of

conducting a functional behavioral assessment (Carr et al., 2002; Dietrich & Villani, 2002;

Drasgow & Yell, 2001; Drasgow, Yell, Bradley, & Shriner, 1999; Yell & Katsiyannis, 2000).

Understandably, the fairly recent appearance of functional behavioral assessment in the

Individuals with Disabilities Education Act Amendments of 1997 (IDEA 1997) combined with a

general unfamiliarity with the concept has created a knowledge gap. As a result, school as well

as legal administrators less familiar with concepts which are known to behaviorists have been

left playing catch-up to ascertain the functional behavioral assessment’s purpose and determine

its appropriate components, application and implementation. For example, in Fitzpatrick (2005),

the functional behavioral assessment was confused with a direct threat evaluation. In Upper Cape

Cod Regional Technical School and Sandwich Public Schools (2005), the FBA was treated

incorrectly as a manifestation determination review, when it concluded that the student’s

disability and lack of social skills caused the offending behavior, rather than correctly using the

assessment to identify the reason why the behavior is occurring (the function) and then to use

this information as the basis for the behavior intervention plan.

IDEA 2004: The Reauthorized FBA 4

With the final regulations to IDEA 2004 going into effect October 13, 2006, some

additional guidance in the proper use and application of the functional behavioral assessment has

been provided by the U.S. Department of Education (DOE) in the Analysis of Comments and

Changes section. Made clear is that functional behavioral assessment is (1) considered a type of

social work service that may be provided, (2) to be transmitted as part of the student’s records,

and (3) to be part of the child’s evaluation when suspected needs of the child include behavior,

even when that child engages in behavior determined not to be a manifestation of the child’s

disability. As with most substantive decisions concerning the functional behavioral assessment,

the determination of its currentness is left to local relevant decision makers.

More than ever, it behooves School administrators to forge ahead on the learning curve as

there has been legislative movement to extend the use of functional behavioral assessment and

positive behavioral interventions and support procedures to all students who may benefit, and not

just those with identified disabilities. On June 6, 2006, in response to President George W.

Bush’s New Freedom Commission on Mental Health, Senate Bill 3449 the Child and Adolescent

Mental Health Resiliency Act of 2006 was introduced to improve the quality and availability of

mental health services for children and adolescents. Had this proposed bill passed, elementary

and secondary schools and educational institutions would have been encouraged to use positive

behavioral support procedures and functional behavioral assessments on a school-wide basis as

an alternative to suspending or expelling children and adolescents with or who are at risk for

mental health needs.

Even though S.B.3449 was not enacted into law, there is evidence to support movement

away from school-wide behavior management policies that favor zero tolerance and toward

policies that promote positive behavioral supports and strategies. Although policy makers were

IDEA 2004: The Reauthorized FBA 5

under intense public pressure in the 1990s to take all necessary measures to ensure the safety of

children in schools, there has been minimal evidence to support the use of zero tolerance (Skiba,

2000). In fact, high rates of antisocial behavior in school are associated with “punitive

disciplinary strategies; lack of clarity about rules, expectations and consequences; lack of staff

support; and failure to accommodate and consider individual differences” (Lewis & Sugai, 1999,

p. 2).

Meanwhile, there is evidence spanning back nearly a decade supporting the use of

school-wide positive behavior support including its use in ethnically and racially diverse inner-

city schools (McCurdy, Mannella & Eldridge, 2003). Functional behavioral assessment is a

positive strategy and considers individual differences. Administrators who utilize functional

behavioral assessment can provide evidence in a due process hearing of compliance with the

IDEA 2004 procedural protections.

This article will briefly review the procedural requirements for functional behavioral

assessment under IDEA 2004, compare these with the old requirements under IDEA 1997 where

those changes are significant and outline substantive guidance that administrators can apply

found through a review of federal and state legislative and administrative actions, legal opinions

and recent literature on functional

behavioral assessment.

Procedural Requirements Provide Contextual Guidance

An examination and comparison of IDEA 2004, IDEA 1997 and final implementing

regulations reveal that administrators continue to have great flexibility with respect to the

substance of the functional behavioral assessment, being that they are provided with only

contextual guidance respecting their duty to provide the assessment. In sum, the functional

IDEA 2004: The Reauthorized FBA 6

behavioral assessment is a service administrators must ensure a child with a disability receives

when that child is removed long-term from his or her current placement for disciplinary reasons

Framed by IDEA are several contextual factors which taken together alert school

administrators that the need to conduct a functional behavioral assessment has been triggered: (1)

there is a child with a disability, (2) who is removed for more than ten school days, (3) for

misconduct that either (a) is a manifestation of the child’s disability, (b) is not a manifestation of

the child’s disability, or (c) involves weapons, drugs, or serious bodily injury, regardless of the

outcome of the manifestation determination review, or (4) for behavior that interferes with the

learning environment

Child with a Disability

Administrators must be cognizant that a student’s procedural right to a functional

behavioral assessment also extends to a “child who has not [yet] been determined to be eligible

for special education and related services under IDEA and who has engaged in behavior that

violates a code of student conduct . . . if the local educational agency had knowledge . . . that the

child was a child with a disability before the behavior that precipitated the disciplinary action

occurred” (20 U.S.C. § 1415(k)(5)(A) (2004)).

As for a child currently identified as disabled, administrators must consider the length of

time that child is removed from his/her regular educational placement, as specified in the

Individualized Education program (IEP), when determining if the need for a functional

behavioral assessment has been triggered.

Removal is for More Than Ten School Days

To redress a long history of exclusion, IDEA establishes for children with disabilities the

right to the educational placement decided on by the IEP team. Administrators are increasingly

IDEA 2004: The Reauthorized FBA 7

aware that disciplinary removal for more than 10 school days is legally regarded as a unilateral

change in the child’s placement triggering the child’s procedural protections, including a

functional behavioral assessment. A removal is for more than 10 school days when a child with a

disability is removed from her regular educational placement as specified in the IEP for more

than ten consecutive school days. In addition, a removal for more than 10 school days occurs

when “the child is subjected to a series of removals that constitute a pattern . . . because the

series of removals total more than 10 school days in a school year” (Final Regulations, 34 C.F.R.

§ 300.536 (2006)).

Determining a pattern depends on such factors as “the child’s behavior is substantially

similar to the child’s behavior in previous incidents that resulted in the series of removals; . . . the

length of each removal, the total amount of time the child has been removed, and the proximity

of the removals to one another” (34 C.F.R. § 300.536 (2006)). Thus, short removals for separate

unrelated incidents of behavior over the course of the academic year would not constitute a

pattern. The local education agency, subject to administrative and judicial review, makes the

determination, on a case-by-case basis, whether a pattern of removals constitutes a change of

placement (34 C.F.R. § 300.536 (2006)).

For these reasons, administrators are advised to keep careful records on the number and

length of removals, descriptions of the misconduct that leads to the removals and the proximity

to one another.

Once an administrator decides to remove a child with a disability for more than 10 school

days, he must then direct the IEP team to conduct a manifestation determination review, the

outcome of which determines which type of functional behavioral assessment to conduct.

IDEA 2004: The Reauthorized FBA 8

Manifestation Determination Review

When the administrator orders the long-term removal of a child with a disability for

misconduct, he/she must see that that a manifestation determination review be conducted and

that the local educational agency (LEA), the parent and relevant members of the IEP team (as

determined by the parent and the LEA) determine if the misconduct was caused by or had a

direct and substantial relationship to the child’s disability or if the misconduct was the direct

result of the school’s failure to implement the IEP (20 U.S.C. § 1415(k)(1)(E)(2004)). The logic

underlying this determination is that school officials will avoid the inequitable response of

applying the same disciplinary procedures that are used for the misconduct of nondisabled

children to a behavior that is the manifestation of a child’s disability. For example, a student with

Tourette’s Syndrome is unable to control his utterance of prohibited words. The principal may,

however, discipline the student with Tourette’s Syndrome the same as she would nondisabled

students for misconduct not related to his disability.

Under IDEA 1997, administrators were to see that both the manifestation determination

review and functional behavioral assessment were conducted no later than 10 school days after

taking disciplinary action involving removals for more than 10 days. Now, under IDEA 2004,

the manifestation determination review must still be done within 10 school days; however,

Congress specifically removed from the Act the requirement to conduct a functional behavioral

assessment or review and modify an existing behavioral intervention plan within 10 days of such

a disciplinary removal. Instead, IDEA 2004 has created a relationship between the manifestation

determination review and the functional behavioral assessment which did not previously exist

under IDEA 1997. As a result, there are now two types of FBA under IDEA 2004 with the

outcome of the manifestation determination review driving whether administrators are to conduct

IDEA 2004: The Reauthorized FBA 9

a Section (k)(1)(D) type FBA which must be conducted “as appropriate” or a Section (k)(1)(F)

type FBA which must be conducted if not done so previously.

Misconduct Is Manifestation of Child’s Disability: FBA Must Be Conducted If Not Done so

Previously

In the specific instance where the misbehavior is a manifestation of the child’s disability,

it is clear that administrators are required to direct the IEP team to conduct the functional

behavioral assessment as the basis for developing and implementing a behavior intervention

plan. Specifically, administrators are charged with seeing that the IEP team shall:

(i) conduct a functional behavioral assessment, and implement a behavioral

intervention plan for such child, provided that the local educational agency had

not conducted such assessment prior to such determination before the behavior

that resulted in a change in placement [for more than 10 school days]; (ii) in the

situation where a behavioral intervention plan has been developed, review the

behavioral intervention plan if the child already has such a behavioral intervention

plan, and modify it, as necessary, to address the behavior. (20 U.S.C. §

1415(k)(1)(F) (2004), emphasis added.)

In circumstances where the misconduct is not a manifestation of the child’s behavior,

IDEA 2004 gives the administrator greater flexibility in deciding whether to direct a functional

behavioral assessment.

Misconduct Not A Manifestation of Child’s Disability: FBA Must Be Conducted “As

Appropriate”

In instances where the misconduct is determined not to be a manifestation of the child’s

disability, administrators should direct that a functional behavioral assessment be conducted “as

IDEA 2004: The Reauthorized FBA 10

appropriate.” Specifically, administrators are charged with seeing that A child with a disability

who is removed from her current placement for more than 10 school days for violations of the

school code (where the behavior was determined not to be a manifestation of the child’s

disability) shall:

receive, as appropriate, a functional behavioral assessment, behavioral intervention

services and modifications, that are designed to address the behavior violation so that it

does not recur. (20 U.S.C. § 1415(k)(1)(D) (2004), emphasis added.)

Nothing in IDEA 2004, its legislative history or the final regulations helps explain what

is meant by “as appropriate.” One possible interpretation is that this new language reflects the

fact that the 10 day deadline has been eliminated. A second possible interpretation is that as

“appropriate implies professional choice” (Prasse, 2006) which would take into account standard

practice for conducting functional behavioral assessments. Professional judgment is essential in

determining which elements to include in a particular individual case. For example, while the

student is suspended from school, as would typically be the case during the 10 days of the

disciplinary removal, direct observations of the behavior and circumstances surrounding it would

not be possible. The “as appropriate” language in IDEA 2004, along with the removal of the 10

day deadline, make it possible for higher quality FBAs to be conducted, making use of direct

observations in the appropriate setting, which would be determined according to individual

circumstances.

In Indep. Sch. Dist. #831 (1999), the hearing officer reasoned: “It is preferable to

complete a functional behavioral assessment in the environment in which a student will normally

be learning . . . while it is possible to perform an assessment in a more restrictive alternative

IDEA 2004: The Reauthorized FBA 11

setting, it will not provide a setting consistent with [student’s] current IEP to determine how the

student will function in [student’s current placement].”

With regard to the importance of professional judgment, IDEA 2004 provisions call for

schools to have properly trained professionals available to conduct functional behavioral

assessments and develop appropriate behavioral intervention plans. It is the district’s

responsibility, working with the state department of education, to provide professional

development, in-service training, and technical assistance, as needed, for school staff members to

be able to conduct FBAs well.

The “as appropriate” language for functional behavioral assessment also applies to

circumstances involving drugs, weapons and serious bodily injury.

Misconduct Involves Weapons, Drugs or Serious Bodily Injury: FBA Must Be Conducted “As

Appropriate”

Administrators have the authority to remove a child with a disability for up to 45 days to

an interim alternative educational setting for (1) carrying or possessing a weapon; (2) knowingly

possessing or using illegal drugs, or selling or soliciting the sale of a controlled substance; or (3)

inflicting serious bodily injury upon another person, whether or not the misconduct is a

manifestation of the child’s disability (20 U.S.C. §1415(k)(1)(G) (2004)). In such

circumstances, administrators will need to direct staff to conduct, as appropriate, a functional

behavioral assessment, behavioral intervention services and modifications that are designed to

address the behavior violation so that it does not recur (20 U.S.C. § 1415(k)(1)(D)(ii) (2004)).

Administrators will note that changes made during the reauthorization of IDEA 2004

concerning weapons, drugs and serious bodily injury favor school personnel. IDEA 1997 was

silent in circumstances where a child possesses a weapon at school. IDEA 2004 closed this gap

IDEA 2004: The Reauthorized FBA 12

giving administrators authority to address circumstances where a child “carries or possesses a

weapon to or at school”(20 U.S.C. §1415(k)(1)(G) (2004)). Similarly, IDEA 1997 was silent in

circumstances where the weapons, drugs and bodily injury behaviors occurred on school

premises. Now under IDEA 2004, administrators have the authority to address circumstances

involving these behaviors on school premises.

IDEA 2004 contains another notable change which favors school administrators.

Administrators now possess unilateral authority to remove a child for up to 45 days to an interim

alternative educational setting in cases where the child “has inflicted serious bodily injury upon

another person while at school, on school premises, or at a school function under the jurisdiction

of a State or local educational agency” (20 U.S.C. § 1415(k)(1)(G) (2004)). Previously, under

IDEA 1997 only administrative hearing officers held such authority.

Given these behavioral contextual guidelines, it should be noted that functional

behavioral assessment of low frequency but high intensity behaviors (i.e., dangerous behaviors

that do not happen very often and may be unexpected) typically involves understanding how

these serious behaviors tend to be associated with lower intensity behavior that occurs more

frequently. However, IDEA requires administrators to provide a functional behavioral

assessment in circumstances where behaviors may have been unforeseen and occurred only once

if the behavior leads to a long term suspension or change of placement. A full reading of IDEA

indicates that preventive interventions are preferred, such as early intervention and IEPs that

include positive behavior support when needed. A case example of a functional assessment of a

dangerous, low-rate, high-intensity behavior (severe physical aggression) was described by

Radford and Ervin (2002). In this case, a review of records and direct observations indicated that

IDEA 2004: The Reauthorized FBA 13

the physical aggression was related to verbal aggression (e.g., swearing, name-calling). A

successful intervention prevented physical aggression by reducing verbal aggression.

Administrators can take proactive measures to intervene in behavior that interferes with

the learning environment by including a functional behavioral assessment in the child’s

evaluation and basing a behavior intervention plan on the results of the assessment.

Behavior Interferes with the Educational Environment

Administrators searching IDEA 2004 will notice that functional behavioral assessment

appears only in the discipline sections and not in sections on evaluation or IEP development.

This might lead administrators to incorrectly conclude that the functional behavioral assessment

is used appropriately only in the context of discipline. In fact, functional behavioral assessment

is appropriate when evaluating the child in all suspected areas of disability, including behavior,

when that behavior interferes with the learning environment.

The U.S. Department of Education (DOE) declined to change the regulation pertaining to

the evaluation of a child to require an FBA whenever any member of the IEP Team requests one

or raises concerns about the child’s behavior. In declining, the DOE reasoned that the public

agency is already required to ensure that the child is assessed in all areas related to the suspected

disability and decisions regarding the areas to be assessed are determined by the suspected needs

of the child, including behavior.

The DOE also declined to change the discipline regulations to require that even if a

child’s conduct is determined not to be a manifestation of the child’s disability, the IEP Team, in

determining how the child will be provided services, must, at a minimum, consider whether to

conduct a functional behavioral assessment and implement a behavior plan. The rationale was

that IDEA 2004 and final regulations emphasize a proactive approach to behaviors that interfere

IDEA 2004: The Reauthorized FBA 14

with learning by requiring that, for children with disabilities whose behavior impedes their

learning or that of others, the IEP Team consider, as appropriate, and address in the child’s IEP,

“the use of positive behavioral interventions and strategies to address the behavior.”

Given the procedural contextual guidance on when administrators should order a

functional behavioral assessment, they will nevertheless search IDEA 2004 and the final

regulations in vain for any substantive guidance. The following section draws out guidance on

the purpose, components, application and implementation of functional behavioral assessment

from other sources.

Substantive Guidance

The contextual guidance aside, no definition of functional behavioral assessment exists in

past or present versions of IDEA or its implementing regulations. Similarly lacking are essential

components of a functional behavioral assessment and procedures for its implementation,

application, interpretation or evaluation. In the absence of clear guidance, administrators

nevertheless remain bound to conduct functional behavioral assessments when the contextual

circumstances call for one.

Fortunately for the administrators of certain school systems, the laws of their state or

federal administrative agency give additional guidance. Functional behavioral assessment

remains an emerging concept in the law and has progressed further at the state level than the

federal. Several states lead the way in providing detailed definitions and guidance to

administrators on its purpose and application. This section sets forth those state definitions as

nonbinding guidance for administrators in other jurisdictions looking for guidance of any sort.

Included here also is substantive guidance provided administrators subject to the U.S.

Department of Defense Education agency regulations. School administrators should note that

IDEA 2004: The Reauthorized FBA 15

because the regulations to IDEA 2004 became final in 2006, some state departments of education

may still be in the process of updating their own regulations to be in compliance with the federal

regulations.

Definitions

As of the time of the writing of this article, at least six educational administrative

agencies were identified as directing school administrators to use a specific operational definition

of functional behavioral assessment. Although an in depth discussion of the differences is

beyond the scope of this article, overlap exists in the use of the terms “functional behavioral

assessment,” “functional behavioral analysis,” and “functional analysis assessment.” California

passed the Hughes Bill Cal. Code of Regs. tit. 5, § 3052, codifying the functional analysis

assessment (FAA) which is a highly complex and lengthy assessment procedure and may only be

conducted by a person with documented training in behavior analysis. Functional behavioral

assessment is less formal than the functional analysis assessment, and has been defined as

follows:

U.S. Department of Defense: functional behavioral assessment is a “process for

identifying the events that predict and maintain patterns of problem behavior” (Provision of

Early Intervention and Special Education Services to Eligible DOD Dependents, 32 C.F.R. §

57.3(dd) (2006)).

Illinois: functional behavioral assessment is an “assessment process for gathering

information regarding the target behavior, its antecedents and consequences, controlling

variables, the student’s strengths, and the communicative and functional intent of the behavior,

for use in developing behavioral interventions” (Ill. Admin. Code tit. 23, § 226.75 (2006)).

IDEA 2004: The Reauthorized FBA 16

Indiana: functional behavioral assessment “means a systematic collection and analysis of

data that will vary in length and scope depending on the severity of a student’s behavior. Results

and analysis of the data collection are used in developing the student’s behavioral intervention

plan. A functional behavioral assessment shall identify patterns in the student’s behavior and the

purpose or function of the behavior for the student” (Ind. Admin. Code 7-17-38 (2006)).

Maine: “The term ‘functional behavior assessment’ means a school-based process used

by the Pupil Evaluation Team, which includes the parent and, as appropriate, the student, to

determine why a student engages in challenging behaviors and how the behavior relates to the

student’s environment. The term includes direct assessments, indirect assessments, and data

analysis designed to assist the P.E.T. to identify and define the problem behavior in concrete

terms; identify the contextual factors (including affective and cognitive factors) that contribute to

the behavior; and formulate a hypothesis regarding the general conditions under which a

behavior usually occurs and the probable consequences that maintain the behavior” (05-071-101

Me. Code R. § 2.10 (2003)).

New York: functional behavioral assessment “means the process of determining why a

student engages in behaviors that impede learning and how the student’s behavior relates to the

environment. The functional behavioral assessment includes, but is not limited to, the

identification of the problem behavior, the definition of the behavior in concrete terms, the

identification of the contextual factors that contribute to the behavior (including cognitive and

affective factors) and the formulation of a hypothesis regarding the general conditions under

which a behavior usually occurs and probable consequences that serve to maintain it” (N.Y.

Comp. Codes R. & Regs. tit. 8 § 200.1(r) (2005)).

IDEA 2004: The Reauthorized FBA 17

Oregon: functional behavioral assessment “means an individualized assessment of the

student that results in a hypothesis about the function of a student’s behavior and, as appropriate,

recommendations for a behavior intervention plan”(Or. Admin. R. 581-015-0550(4) (2006)).

Components, Procedures, and Function

Weber, Killu, Derby, and Barretto (2005) reviewed materials provided by state

departments of education on functional behavioral assessment according to criteria for standard

practice as defined by documents provided by Office of Special Education (OSEP) Center on

Positive Behavior Interventions and Supports (Sugai et al., 2000) and the National Association of

State Directors of Special Education (Levay, 1998) with the basic conceptualization of FBA as a

process of determining the function of a behavior. According to Weber et al., the FBA process

will vary according to individual need and circumstances but typically includes several (not all)

of the following 14 possible components:

1. Description of target behavior

2. Review of records

3. Checklists related to circumstances surrounding the behavior

4. Student interviews

5. Interviews with others (e.g. teachers and parents; see Crone & Horner, 2003)

6. Team meetings

7. Direct observations in natural settings without manipulations

8. Scatterplots (Touchette, MacDonald & Langer (1985))

9. Antecedent-behavior-consequence (ABC) analysis (Bijou, Peterson, & Ault, 1968)

10. Functional Analysis Observation Form (O’Neill et al., 1997)

11. Reinforcer identification

IDEA 2004: The Reauthorized FBA 18

12. Ecological context

13. Development of hypothesis

14. Analogue experimentation (Iwata, Dorsey, Slifer, Bauman, & Richman,1982)

This list of components is similar to a more detailed list, intended for use by schools in

tracking the entire process of function-based support in a systematic way, and including both

elements related to functional behavioral assessment and the resulting positive behavior

intervention plans and services, provided by Tobin (2006). Professional judgment would

determine which components should be used in a particular case. With regard to the importance

of professional judgment, IDEA 2004 provisions call for schools to have properly trained

professionals available to conduct functional behavioral assessments. It is the district’s

responsibility, working with the state department of education, to provide professional

development, in-service training, and technical assistance, as needed, for school staff members to

be able to conduct FBAs well.

In Franklin Township (2005), staff errors led to an inappropriate functional behavioral

assessment and inappropriate Behavior Intervention Plans (BIPs) which were based on the

functional behavioral assessment. Staff observed the student but collection of data on his

behavior and the staff’s reaction thereto was sporadic rather than systematic. Staff’s proposed

BIPs failed to address the function of the student’s behaviors–how to intervene in different

situations based upon the reasons for the student’s behavior (i.e., escape tasks, get attention,

etc.). School staff were reinforcing student’s maladaptive behaviors through inappropriate and

inconsistent responses to the behaviors (e.g., teacher would place student in time-out without

knowing if it was reinforcing student’s attempts to escape the situation he was then

experiencing).

IDEA 2004: The Reauthorized FBA 19

In addition, schools are expected to use functional behavioral assessment proactively and

to intervene early to prevent serious problem behaviors: The IDEA states that a behavior

intervention plan based on a functional behavioral assessment should be considered when

developing the IEP if a student’s behavior interferes with his or her learning or the learning of

classmates (20 U.S.C. § 1414(d)(3)(B)(i) (2004)). To be meaningful, plans need to be reviewed

at least annually and revised as often as needed. However, the plan may be reviewed and

reevaluated whenever any member of the child’s IEP team feels it is necessary (Fitzsimmons,

1998). According to Wilcox, Turnbull, & Turnbull (1999-2000), in practice, functional

behavioral assessment is inseparable from positive behavior support. Other authors agree (Sugai

et al., 2000; Turnbull & Turnbull, 2001).

Conclusion

Schools have a legal responsibility to students with disabilities to provide behavioral

support needed for a free, public, appropriate education. Under some circumstances, this includes

a functional behavioral assessment and a related positive behavior intervention plan and services.

Although IDEA 2004 provides some changes in wording and in requirements related to

functional behavioral assessments from IDEA ’97, professional judgment remains essential for

deciding how to conduct functional behavioral assessments on an individual basis. This is

consistent with the basis for special education, which is an individualized education plan. In

order to comply with the federal regulations, school leaders should take advantage of the

multitude of resources available, many online (e.g. Positive Behavioral Interventions & Supports

Home Page, http://pbis.org/main.htm;Positive Behavior Support at School,

http://uoregon.edu/~ttobin/) for professional development and technical assistance to ensure that

IDEA 2004: The Reauthorized FBA 20

school staff members who are conducting functional behavioral assessments are well trained and

following state-of-the-art practices.

IDEA 2004: The Reauthorized FBA 21

References

Bijou, S.W., Peterson, R.F., & Ault, M.H. (1968). A method to integrate descriptive and

experimental field studies at the level of data and empirical concepts. Journal of Applied

Behavior Analysis 1, 175-91.

Carr, E.G., Dunlap, G., Horner, R.H., Koegel, R.L., Turnbull, A.P., & Sailor, W. (2002).

Positive behavior support: Evolution of an applied science. Journal of Positive Behavior

Interventions, 4, 4-16.

Crone, D.A. & Horner, R.H. (2003). Building positive behavior support systems in schools:

Functional behavioral assessment. New York: Guilford.

Dieterich, C.A. & Villani, C.J. (2001). Litigating the future of functional behavioral assessment.

154 WELR 433.

Dieterich, C.A. & Villani, C.J. (2000). Functional behavioral assessment: Process without

procedure. Brigham Young University Law School. BYU Education and Law Journal,

287-305.

Drasgow, E. & Yell, M. (2001). Functional behavioral assessment: Legal requirements and

challenges. School Psychology Review, 30, 239-251.

Drasgow, E., Yell,M., Bradley, R., & Shriner, J.G. (1999). The IDEA amendments of 1997: A

school-wide model for conducting functional behavioral assessments and developing

behavior intervention plans. Education and Treatment of Children, 22, 244-266.

Final Regulations to individuals with disabilities Education Improvement Act of 2004, 34 C.F.R.

§§ 300 et seq.

Fitzpatrick v. Town of Falmouth, 879 A.2d 21 (Me. 2005).

IDEA 2004: The Reauthorized FBA 22

Fitzsimmons, M.K., (1998). Council for Exceptional Children: Functional Behavior Assessment

and Behavior Intervention Plans 1. Downloaded April 27, 2006 from

http://ericec.org/digests/e571.html.

Franklin Township Community School Corporation, and Rise Special Services, 105 LRP 9108

(SEA IN 2005).

Independent School District #831, 102 LRP 6988 (SEA MN 1999).

Individuals With Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446; 20

U.S.C. §§ 1401 et seq.

Iwata, B.A., Dorsey, M.F., Slifer, K.J., Bauman, K.E., & Richman, G.S. (1982). Toward a

functional analysis of self-injury. Analysis and Intervention in Developmental

Disabilities, 2, 3-20

Levay, R.D. (1998). Memorandum to the District Superintendents et al. Available at

http://www.vesid.nysed.gov/specialed/publications/policy/functionbehav.htm.

Downloaded Apr. 27, 2006.

Lewis, T. J. & Sugai, G. (1999). Effective behavior support: A systems approach to proactive

school-wide management. Focus on Exceptional Children, 31(6),1-24.

McCurdy, B.L., Mannella, M.C. & Eldridge, N. (2003). Positive behavior support in urban

schools: Can we prevent the escalation of antisocial behavior? Journal of Positive

Behavioral Interventions, 5, 158-170.

O’Neill, R. E., Horner, R. H., Albin, R. W., Sprague, J. R., Storey, K., & Newton, J. (1997).

Functional analysis of problem behavior: A practical assessment guide (2nd ed.). Pacific

Grove, CA: Brookes/Cole.

IDEA 2004: The Reauthorized FBA 23

Prasse, D.P. (2006) Legal supports for problem-solving systems, Remedial and Special

Education, 27,7-15.

Radford, P. & Ervin, R. (2002). Employing descriptive functional assessment methods to assess

low-Rate, high-intensity behaviors, Journal of Positive Behavior Interventions, 4, 146-55.

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Sugai, G., Horner, R. H., Dunlap, G., Hieneman, M., Lewis, T. J., Nelson, C. M., Scott, T.,

Liaupsin, C., Sailor, W., Turnbull, A. P., Turnbull III, H. R., Wickham, D., Wilcox, B., &

Ruef, M. (2000). Applying positive behavior support and functional behavioral

assessment in schools. Journal of Positive Behavior Interventions, 2(3), 131–143.

Tary J. Tobin, Functional Interventions in Versatile Environments (FIVE-Q)(Apr. 2006),

available at http://darkwing.uoregon.edu/~ttobin/FIVE-Q%20cec%204-9-06 .

Touchette, P.E., MacDonald, R.F., & Langer, S.N. (1985). A scatter plot for identifying stimulus

control of problem behavior. Journal of Applied Behavior Analysis, 18, 343-351.

Turnbull, A.P. & Turnbull, H.R. (2001). Families, professionals, and exceptionality:

Collaborating for empowerment. Upper Saddle River, NJ: Prentice Hall.

Upper Cape Cod Regional Technical School and Sandwich Public Schools, 105 LRP 57471

(SEA MA 2005).

Weber, K.P., Killu, K., Derby, K.M. & Barretto, A. (2005). The status of Functional Behavior

Assessment (FBA): Adherence to standard practice in FBA methodology. Psychology in

the Schools, 42(7), 737-744

IDEA 2004: The Reauthorized FBA 24

Wilcox, B.L., Turnbull III, H.R. & Turnbull, A.P. (1999- 2000). Behavioral issues and IDEA:

Positive behavioral interventions and the functional behavioral assessment in the

disciplinary context, Exceptionality, 8, 173-88 .

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practice considerations. Preventing School Failure, 44, 158-162.

Docket: Cum-04-569
Supreme Judicial Court of Maine

Fitzpatrick v. Town of Falmouth

879 A.2d 2

(Me. 2005) • 2005 Me. 9

Decided Aug 10, 200

Docket: Cum-04-569.

Argued: June 14, 2005.

Decided: August 10, 2005.

CALKINS, J.

Appeal from the Superior Court, Cumberland
County, Humphrey, C.J. *222

Ronald R. Coles (orally), Kennebunk, for
plaintiffs.

Melissa A. Hewey (orally), Drumond, Woodsum
MacMahon, Portland, for

defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA,
ALEXANDER, CALKINS, and LEVY, JJ._

_ Justice Paul L. Rudman sat at oral

argument and participated in the initial

conference, but retired before this opinion

was certified.

*232

[¶ 1] Gayle A. Fitzpatrick and Charles A.
Rankowski appeal from a judgment entered in the
Superior Court (Cumberland County, Humphrey,
C.J.) denying their request for a preliminary and
permanent injunction and from a summary
judgment in favor of the Town of Falmouth and
the other defendants, who are school officials with
the Falmouth School Department. Fitzpatrick and
Rankowski are the parents of J.R., who has been
diagnosed with Asperger’s Disorder Autism. They
challenged the actions of the school officials in
suspending J.R. from using the Plummer School

playground. Although the parents alleged several
claims in both the federal district court and the
Superior Court, the only claims remaining on
appeal were brought pursuant to the Maine Human
Rights Act (MHRA). 5 M.R.S.A. §§ 4592, 460

(2002). The parents contend that the Superior
Court erred and abused its discretion in
concluding that they were required to exhaust
administrative remedies before they could bring
their claim for education discrimination. They
further argue *24 that the court erred in finding
that the school officials did not discriminate
against J.R. on the basis of his disability and in
finding that J.R.’s behavior posed a significant risk
to the health and safety of others, which meant
that the school officials did not unlawfully deny
the use of public accommodations to him. We
affirm the judgment.

1 The defendants named in the complaint are

the Town of Falmouth, the chairman of the

Falmouth School Board, and three

employees of the Town of Falmouth: the

director of special services for the

Falmouth School Department, the principal

of the Plummer Motz/Lunt Elementary

School in Falmouth, and the superintendent

of the Falmouth schools. The term “school

officials” herein includes all of the

defendants.

I. BACKGROUND
A. Procedure

[¶ 2] J.R.’s parents brought a complaint against the
school officials in the Superior Court in February
2004 challenging the suspension of their son from

the Plummer School playground. The complaint
alleged several federal and state claims, both
constitutional and statutory.

[¶ 3] The school officials removed the case to the
federal district court, which dismissed the federal
claims. The primary basis for the dismissal was
the parents’ failure to exhaust administrative
remedies. The court concluded that the requested
relief, that is, the restoration of J.R.’s playground
privileges, was relief available under the
Individuals with Disabilities Education Act
(IDEA), 20 U.S.C.A. §§ 1400- 1482 (West 2000
Supp. 2005), and IDEA requires exhaustion of
administrative remedies for claims seeking relief
that is available under it, even when the action is
brought pursuant to another federal statute.
Fitzpatrick v. Town of Falmouth, 321 F.Supp.2d
119, 127-28 (D.Me. 2004). The federal court
remanded the state claims back to the Superior
Court. Fitzpatrick v. Town of Falmouth, 324
F.Supp.2d 95, 100 (D.Me. 2004).

[¶ 4] In the Superior Court, J.R.’s parents amended
the complaint to delete the federal claims. The
remaining state law claims included two claims
under the MHRA: a claim for education
discrimination, pursuant to 5 M.R.S.A. § 4601,
and a claim for public accommodations
discrimination, pursuant to 5 M.R.S.A. § 4592. A
third claim alleged a violation of the Equal
Protection and Due Process Clauses of the Maine
Constitution. The only relief requested for these
three claims was a preliminary and permanent
injunction. In addition, the parents alleged two
claims for the intentional infliction of emotional
distress, which requested damages.

[¶ 5] The school officials filed a motion for
summary judgment accompanied by a statement of
material facts. While that motion was pending, the
court held an evidentiary hearing on the parents’
request for an injunction. The court consolidated
the hearing on the request for a preliminary
injunction with a hearing on the request for a
permanent injunction. See M.R. Civ. P. 65(b)(2).

The court issued a thorough opinion detailing its
findings and conclusions. The court concluded:
“Based upon the foregoing, the plaintiffs have not
demonstrated a likelihood of success on the merits
of their discrimination and constitutional claims
and their motion for a preliminary and permanent
injunction must be denied.”

[¶ 6] The parents voluntarily dismissed the two
claims for intentional infliction of emotional
distress. The court subsequently granted the
school officials’ motion for summary judgment
and entered judgment for the school officials, “for
the reasons recited in the [judgment denying
injunctive relief].” *25225

2 There was some confusion regarding the

docketing of the judgment denying the

preliminary and permanent injunctions in

that it was docketed twice. The parents’

notice of appeal was timely as to one of the

docketing dates. Apparently because of the

double docketing of the judgment denying

injunctive relief, the court granted an

enlargement of time to allow the parents to

appeal both the judgment denying the

injunction and the summary judgment.

B. Facts

[¶ 7] The Superior Court found the following facts
after consideration of the evidence submitted at
the hearing on the request for the preliminary and
permanent injunction. J.R. is a child with
Asperger’s Disorder Autism who, in September
2003, was a home-schooled fourth-grader residing
with his parents in Falmouth. Asperger’s is a
neurological disorder on the autism spectrum,
which, in this case, has affected the development
of J.R.’s social and language skills. The disorder
limits his ability to understand the facial
expressions and verbal cues of others, but his
cognitive abilities and IQ level are strong.

[¶ 8] Although J.R. was not an enrolled student at
a Falmouth school, a Pupil Evaluation Team
(PET) meeting was held in September 2003 by the
school and the parents in order to develop a

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

service plan for J.R. that would allow him to use
some of the school’s facilities and enable him to
interact with other students. At the parents’
request, the school officials allowed J.R. access to
the school playground to give him the opportunity
to play with other children and develop his social
and communication skills.

[¶ 9] Shortly after J.R. began to use the
playground, the school principal received
complaints from some students regarding J.R.’s
behavior. She was told that J.R. kneed a student in
the groin, used offensive or threatening language,
and threw rocks. The principal spoke with J.R.’s
mother regarding the complaints. The mother
replied that J.R. had done nothing wrong, but
rather, the other students were bullying him. The
principal determined that the complaints of both
the mother and the other students were credible.

[¶ 10] Soon thereafter, the mother met with the
principal and the special education teacher, who is
J.R.’s case manager, to discuss the alleged
misbehavior. They agreed that an adult should
observe J.R. when he was on the playground, and
an education technician began the observation of
J.R. on the playground.

[¶ 11] The principal received additional
complaints from teachers and administrators
regarding J.R.’s inappropriate behavior on the
playground, such as using equipment too roughly
and being nonresponsive and disrespectful to
teachers. Following these reports, the principal
and another special education teacher, who is an
autism specialist, approached the mother on the
playground and said that J.R. had to be responsive
to other adults assigned to the playground. The
mother replied that J.R. had been taught not to
respond to other adults. The mother became
agitated and left the playground.

[¶ 12] On another occasion, a school employee
complained to the principal that J.R. was
monopolizing the time of a particular third-grade
child and that J.R. swore at other students who
wanted to play with the third-grade child. The

principal went to the playground to speak to J.R.,
who became angry. The principal then told J.R.
and his home-school provider to leave the
playground area, and J.R. yelled at her and ran
into the woods.

[¶ 13] The principal was concerned with J.R.’s
behavior and its effect on his and others’ safety
and on other children’s educational development.
The principal spoke with the mother about the
situation, and the mother stated that J.R. should
not have to respond to adults that he does not
know or trust. The principal pointed out *26 the
school policy regarding disrespect to an
appropriate adult authority, which policy requires
that the child write a letter of apology and lose
playground privileges. The mother replied that the
school policy was “interesting,” but that J.R. was
not a student at the elementary school.

[¶ 14] On November 7, 2003, J.R.’s case manager
observed J.R. and another child on the tire swing.
J.R. was standing on the swing, and it was going
too fast. The case manager attempted to intervene,
and J.R. called her a “bastard” and told the other
children not to listen to her. The mother arrived
and spoke briefly with the case manager. The
principal went to the playground and, after talking
with the case manager and the mother, the
principal told the mother that she and J.R. had to
leave the playground immediately. J.R. swore at
the autism specialist, and, eventually, the mother
and J.R. left the playground.

[¶ 15] Later that day, the principal met with the
superintendent and the director of special services
for the school department. The three decided to
temporarily suspend J.R. from the playground
during school hours until the school officials and
parents met to design a plan for J.R. and the
school staff regarding the playground.

[¶ 16] On November 24, the principal, the
superintendent, the director of special services, the
mother, and the mother’s attorney attended a PET
meeting, during which the school officials
requested permission from the parents for a

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

10 C.M.R. 05 071 101-11 § 2.10 (1999).

Functional Behavioral Assessment (FBA) of J.R.
The court found that “the FBA itself would have
required the almost immediate return [of J.R.] to
the playground so that he could be observed in
that environment.” However, the parents notified
the principal by letter that they would not consent
to an FBA, stating that it was unnecessary and
would not be in J.R.’s best interest. As of the date
of the hearing on the injunction, J.R. remained
suspended from the playground.

3 As defined in the special education

regulations, an FBA is

a school-based process used by

the Pupil Evaluation Team, which

includes the parent and, as

appropriate, the student, to

determine why a student engages

in challenging behaviors and how

the behavior relates to the

student’s environment. [It]

includes direct assessments,

indirect assessments, and data

analysis designed to assist the

P.E.T. to identify and define the

problem behavior in concrete

terms; identify the contextual

factors (including affective and

cognitive factors) that contribute

to the behavior; and formulate a

hypothesis regarding the general

conditions under which a

behavior usually occurs and the

probable consequences that

maintain the behavior.

II. DISCUSSION
A. Standard of Review

[¶ 17] The parents argue that because the court
granted the school officials’ summary judgment
motion, it is the summary judgment that is on
appeal, and the appropriate standard of review is
de novo review. See Lever v. Acadia Hosp. Corp.,

2004 ME 35, ¶ 2, 845 A.2d 1178, 1179. We
disagree. Here, the court denied injunctive relief
because it found that the parents did not prove that
the school officials violated the MHRA or the
Maine Constitution. The decision denying
preliminary and permanent injunctive relief
completely decided those claims because the
parents requested only injunctive relief. Once the
two emotional distress claims were voluntarily
dismissed by the parents, all claims had been
disposed of, and the court’s summary judgment
was unnecessary.

4 The parents have not appealed from the

court’s determination that the school

officials did not violate J.R.’s constitutional

rights.

[¶ 18] It is possible that the reason the court issued
the summary judgment *27 was because it had
stated in its order denying the preliminary and
permanent injunction that “the plaintiffs have not
demonstrated a likelihood of success on the
merits.” However, when a court has consolidated
the hearing and decision on a preliminary
injunction request with a trial on the merits of the
request for a permanent injunction pursuant to
M.R. Civ. P. 65(b)(2), and the parties have not
requested any relief other than an injunction, the
court has decided the merits and not just the
likelihood of success on the merits. We recognize
that in Ingraham v. University of Maine at Orono,
we said that one of the criteria that must be met ”
[b]efore granting a preliminary or permanent
injunction,” is that the plaintiff exhibits a
likelihood of success on the merits. 441 A.2d 691,
693 (Me. 1982) (emphasis added). However, as
commentators have noted: “The criterion has no
significance when the court reaches the merits by
determining a request for permanent injunction or
by consolidating the hearing on preliminary
injunction with the hearing on the merits.” Horton
McGehee, Maine Civil Remedies § 5-3(d) at 107
n. 56 (4th ed. 2004); see also Walsh v. Johnston,
608 A.2d 776, 778 (Me. 1992) (setting forth the
criteria for granting a permanent injunction). For a

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

permanent injunction, the criterion from Ingraham
regarding the merits is more accurately expressed
as “the plaintiff succeeds on the merits.”

[¶ 19] Accordingly, we review the court’s decision
on the merits of the parents’ claims as set forth in
its order denying the preliminary and permanent
injunction. Thus, we review the court’s findings of
fact under the clearly erroneous standard and
conclusions of law de novo.

B. Maine Human Rights Act Claims

1. Education Discrimination

[¶ 20] The parents claimed that the school officials
violated J.R.’s right to participate in an educational
program free from discrimination. The MHRA
declares that it is a civil right “for an individual at
an educational institution to participate in all
educational [programs]” without discrimination
because of, inter alia, a physical or mental
disability. 5 M.R.S.A. § 4601. Section 4602(2)(A)
of the MHRA provides that the exclusion of an
otherwise qualified individual from participation
in any educational program or activity solely on
the basis of physical or mental disability is
unlawful education discrimination. 5 M.R.S.A. §
4602(2)(A) (2002). Section 4602(2) also states:
“Nothing in this subsection may be construed to
cover the rights of exceptional students to special
education programs under state or federal law.” 5
M.R.S.A. § 4602(2) (2002).

[¶ 21] Although the Superior Court could have
concluded that the parents had not stated a claim
under the education discrimination portion of the
MHRA because of the exclusionary language in
section 4602(2), it instead looked past the wording
of the complaint and interpreted the gravamen of
the parents’ MHRA education discrimination
claim to be one that fell within the parameters of
the special education laws. The court concluded
that the parents were required to exhaust
administrative remedies before pursuing a claim

under the special education laws and because they
had not exhausted remedies, they could not pursue
the claim in court.

[¶ 22] The parents argue before us that because
they did not allege a claim under the special
education statutes, the court should have reached
their MHRA education discrimination claim and
not required exhaustion. The MHRA education
discrimination claim cannot succeed, however,
because of the provision in section 4602(2)
excluding “the rights of exceptional *28 students
to special education programs.” This language is
applicable to J.R. because he is an exceptional
student as defined in the special education laws,
see 20-A M.R.S.A. § 7001(2)(C)(8) (Supp. 2004),
and his use of the playground was permitted as
part of his home-school program, see 20-A
M.R.S.A. § 5021(6) (Supp. 2004). The court
found that the dispute between the parents and the
school officials was triggered by the temporary
suspension of J.R. from the playground and the
school officials’ request for an FBA and a behavior
management plan. Because the basis of the
parents’ claim is that their son, an exceptional
student, is entitled to playground privileges as part
of a special education program, the exclusion in
section 4602(2) is applicable, and its applicability
defeats their claim of education discrimination
under the MHRA.

2. Public Accommodations

[¶ 23] The parents claimed that the school officials
discriminated against J.R. under the MHRA’s
public accommodations law. The MHRA declares
that it is a civil right for every individual to have
“equal access to places of public accommodation
without discrimination because of race, color, sex,
physical or mental disability, religion, ancestry or
national origin.” 5 M.R.S.A. § 4591 (2002). It is
unlawful for a place of public accommodation to
discriminate on the basis of a disability. Id. §
4592(1). There is no dispute that the playground is
a place of public accommodation.

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

[¶ 24] Unlawful discrimination is defined in
section 4592 to include the “failure to make
reasonable modifications in policies, practices or
procedures, when modifications are necessary to
afford the . . . facilities . . . to individuals with
disabilities.” Id. § 4592(1)(B). Unlawful
discrimination also includes the exclusion or
denial by a public entity of a “qualified individual
with a disability, by reason of that disability,” from
services and activities or from “being subjected to
discrimination by any such entity.” Id. § 4592(1)
(E).

[¶ 25] However, places of public accommodation
are not required to allow a person to use its
facilities when the person “poses a direct threat to
the health or safety of others.” 5 M.R.S.A. § 4592.
The term “direct threat” is defined as “a significant
risk to the health or safety of others that can not be
eliminated by a modification of policies, practices
or procedures or by the provision of auxiliary aids
or services.” Id.

[¶ 26] The court found that J.R. posed a direct
threat, that is, a significant risk to the health and
safety of others on the playground, and, therefore,
the school officials had not discriminated against
him. The court further found that the suspension
from the playground was not based on J.R.’s
disability, but rather based on the school officials’
“legitimate need to obtain an assessment of the
child and develop a plan for his safe and beneficial
use of the facility.” Because we affirm the decision
on a different rationale than that of the court, we
do not reach the question of whether the court
erred in its conclusion that J.R.’s behavior met the
statutory definition of “direct threat,” or in its
determination that the school officials did not
discriminate against J.R. on the basis of his
disability.

[¶ 27] J.R.’s service plan gave him the right to use
the playground. The court *29 found that after
J.R. began to use the playground, other students
accused him of kneeing a student in the groin. On
the playground, J.R. had used offensive or

threatening language, thrown rocks, used
playground equipment too roughly, been rude and
disrespectful to supervisors, and swung on the tire
swing too fast. The court found that the school
officials were concerned with J.R.’s behavior on
the playground and its effect on his and others’
safety and educational development. The record
supports these findings.

529

5 Although a home-schooled student, J.R.

was allowed to use the playground on the

same basis as the enrolled students as long

as the conditions in 20-A M.R.S.A. §

5021(6) (Supp. 2004) were met. The use of

school facilities by home-schooled students

is subject to approval by the principal, id. §
5021(6)(B), and the use must “not disrupt

regular school activities,” id. § 5021(6)(A).

Furthermore, the use of “potentially

hazardous areas” must be “supervised by a

qualified employee of the school

administrative unit.” Id. § 5021(6)(D).

[¶ 28] Because of the similarity between the
MHRA and the federal Americans with
Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-
12213 (West 1995 Pamph. 2005), we utilize
federal cases interpreting the ADA when we
interpret comparable provisions in the MHRA.
Scott v. Androscoggin County Jail, 2004 ME 143,
¶ 16, 866 A.2d 88, 93. The “direct threat”
provision in 5 M.R.S.A. § 4592, is also contained
in the ADA, 42 U.S.C.A. § 12182(b)(3) (1995),
and is interpreted to mean that entities operating
places of public accommodation that are
concerned with the safety risks posed by a
disabled individual must determine whether that
individual constitutes a direct threat. Montalvo v.
Radcliffe, 167 F.3d 873, 876-77 (4th Cir. 1999).
When making such a determination, a public
accommodation entity “must not base its calculus
on stereotypes or generalizations about the effects
of a disability but rather must make an
individualized assessment, based on reasonable
judgment that relies on current medical knowledge
or on the best available objective evidence.” Id.
(quotation marks omitted).

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

[¶ 29] The relevant factors that the entity
providing the place of public accommodation must
weigh and balance are “the nature, duration, and
severity of the risk and the probability that the
potential injury will actually occur.” Id. at 877
(quotation marks and alterations omitted). Under
the ADA, when an entity providing a place of
public accommodation identifies a disabled
individual as posing significant risk to the health
and safety of others, it must assess whether that
risk can be eliminated by “reasonable
modifications of policies, practices or procedures.”
Id. (quotation marks omitted). Likewise, because
the MHRA defines “direct threat” to mean a
“significant risk . . . that can not be eliminated by
a modification of policies, practices or procedures
or by the provision of auxiliary aids or services,” 5
M.R.S.A. § 4952, we interpret the MHRA to mean
that the public accommodation entity must
ascertain whether any modification to its policies,
or whether providing any auxiliary services, will
eliminate the significant risk that it has identified.

[¶ 30] Here, the school officials perceived that J.R.
posed a significant risk to himself and other
students, and that some kind of modification to its
policies and procedures or to J.R.’s service plan,
may ameliorate such a risk. The court found that
the school officials’ safety concerns prompted it to
temporarily suspend J.R.’s use of the playground
“only until a safe and effective behavioral plan
could be developed for [J.R.] and the school’s
personnel.”

[¶ 31] The Court of Appeals for the Sixth Circuit
held that an entity providing a place of public
accommodation was not liable for discrimination
during an interim period in which it was
requesting additional *30 information. Doe v.
Woodford County Bd. of Educ., 213 F.3d 921, 925
(6th Cir. 2000). In that case, the school had placed
a student basketball player on “hold” status,
preventing him from playing with the team, until
the school could determine whether or not the fact
that he was a hemophiliac and carried the hepatitis
B virus made him a direct threat to others on the

team. Id. at 923-24. The school requested his
parents to provide medical information and when
the furnished information appeared inadequate, it
sought more information. Id. at 924. The ultimate
determination of whether the student posed a
direct threat was irrelevant; the school had not
discriminated against him in the time period in
which it held meetings and gathered medical
information necessary to its determination of
whether or not a direct threat existed that could
not be eliminated by modification. Id. at 925-26.

[¶ 32] Here, the school temporarily suspended J.R.
to determine whether he posed a direct threat that
could not be eliminated by modification. This
temporary suspension appears to be an attempt “to
balance the need of protecting [other students]
with [J.R.’s] rights not to be treated differently due
to his disability.” Id. at 926. As in Woodford
County Board of Education, it was “entirely
reasonable for [the school officials] to be
concerned and arguably [they] were obligated to
be concerned with limiting risk of [injury] to
others as well as limiting any injury that [the
child] may suffer.” Id.

[¶ 33] The Falmouth school officials requested
that J.R.’s parents consent to the FBA. The court
found that the school officials’ request for the
behavioral assessment “was reasonable and well-
suited to the timely and effective return of [J.R.] to
the playground.” The court found that J.R.’s
mother acknowledged that the school officials
needed to understand his disability. The school
officials requested the FBA in order to “ascertain
and implement” modifications that would allow
J.R. to resume use of the playground. The FBA
would have enabled the school officials to make
an “individualized assessment, based on
reasonable judgment that relies on current medical
knowledge or . . . objective evidence.” Montalvo,
167 F.3d at 876-77 (quotation marks omitted). As
the court found, the FBA itself would have
required J.R.’s immediate return to the playground

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

because in order to do the FBA, the assessors
would have to observe J.R. in the playground
environment.

[¶ 34] Without the parental consent necessary for
the FBA, the school officials were prevented from
making the determination they are required to
make under the law. The parents’ refusal to
consent to the FBA meant that the school officials
were unable to determine whether J.R.’s behavior

constituted a direct threat and if so, what
modifications, if any, could eliminate it. The
school officials did not unlawfully discriminate
against J.R. by temporarily suspending him in
order to make that determination.

The entry is:

Judgment affirmed.

Fitzpatrick v. Town of Falmouth 879 A.2d 21 (Me. 2005)

Reading Response/Study Question Submission:

2004 IDEA Reauthorization

1) What importance does this reauthorization have on the use of FBAs in public schools?

2) Who is responsible for conducting FBAs in public schools?

3) Explain the significance of a child being “removed” from school for more than 10 days?

5. As a behavior analyst, why do you need to understand the IDEA law?

Fitzpatrick Case

1. What was the judgment regarding consent for an FBA?

2. Did the courts pass judgment on the school’s suspension of J.R.? If so, do you agree with this judgment?

Rubric

Study Questions (1)

5 pts

Fully

2.5 pts

Partially

0 pts

Not Present

5 pts

Fully

2.5 pts

Partially

0 pts

Not Present

5 pts

Fully

2.5 pts

Partially

0 pts

Not Present

5 pts

2.5 pts

Fully

1.25 pts

Partially

0 pts

Not Present

2.5 pts

Study Questions (1)
Criteria	Ratings	Pts
This criterion is linked to a Learning OutcomeAnswers are comprehensive			5 pts Fully 2.5 pts Partially 0 pts Not Present	5 pts
This criterion is linked to a Learning OutcomeResponses are accurate and clear
This criterion is linked to a Learning OutcomeTerminology is used correctly
This criterion is linked to a Learning OutcomePuts answers in your own words
This criterion is linked to a Learning OutcomeIncludes original examples (where required)		2.5 pts Fully 1.25 pts Partially 0 pts Not Present	2.5 pts
This criterion is linked to a Learning OutcomeSpelling, grammar, and punctuation
Total Points: 25