Tuesday, February 17, 2009

PA: Chapter 14 Changes to Evaluation Timelines, Behavior Plans and FBAs

By David T. Painter

Special education services and programs in public schools are regulated and implemented under
the authority of the Individuals with Disabilities Education Act (“IDEA”). IDEA was
reauthorized effective July 1, 2005. The revised federal regulations of the reauthorized IDEA
were promulgated on August 14, 2006. Sometime thereafter, a committee of the State Board of
Education (“Board”) in Pennsylvania revised Chapter 14 to align it with the reauthorized IDEA.
Pennsylvania’s revisions to Chapter 14 took effect July 1, 2008.

Revised Chapter 14 added a new requirement that multidisciplinary evaluations and
reevaluations be completed within sixty calendar days from the date the parents provide written consent for the evaluation. Previously, Pennsylvania was aligned with a minority of states that had allowed sixty school days for the completion of multidisciplinary evaluations and
reevaluations. Also, summer breaks were not included in the calculation of days for completion
of the evaluation, and, under revised Chapter 14, they still do not count. However, for purposes
of calculating the evaluation timeline, revised Chapter 14 will count lengthy holiday breaks, days
lost to parent-teacher conferences, inclement weather and in-service days, even though children
are generally not in school on those days.

In revising the portion of Chapter 14 having to do with behavior support, the Board added
provisions that go well beyond what is required by the IDEA. For example, the IDEA requires
that the “specially designed instruction” component of a student’s IEP (which arguably could
include behavior interventions and techniques), be based on “peer-reviewed research to the
extent practicable.” In Pennsylvania, however, the Board now requires that behavior support
programs include “research based practices and techniques” to “enhance…opportunity for
learning and self-fulfillment.” It may be splitting hairs to attempt to distinguish the meaning of
“peer-reviewed research” from “research based practices and techniques,” but, more importantly, the Board’s revisions to Chapter 14 do not permit a school district to fall below the “researchbased” standard because a particular practice or technique may not be practicable under the circumstances.

The Board went even further in ratcheting up the Chapter 14 behavior support requirements in
Pennsylvania to require a functional behavior assessment (“FBA”) prior to developing a behavior plan. In public schools, a FBA usually consists of a team-based assessment and inquiry process through which the team defines target behaviors and determines the antecedent conditions and consequences in order to arrive at the hypothesized function(s) of the behavior. Then, the team would use this information to design an individualized behavior support plan for the child.

Under the IDEA, a FBA is required when the behaviors in question result in disciplinary
exclusion from school and are determined to be a manifestation of the child’s disability. Under
revised Chapter 14, however, a FBA is also required as a prerequisite to all individualized
behavior support plans. Further, a positive behavior support plan must be developed by the IEP
team for eligible children “who require specific intervention to address behavior that interferes
with learning.” The annotated IEP forms promulgated by PaTTAN reinforce the point that a
FBA and a positive behavior support plan are required whenever the IEP team determines that
the “special consideration” of behavior impeding learning of self, or others, applies to the child
in question.

Clients who have questions regarding issues discussed in this article, or any education law
matter, should feel free to call us at 215-345-9111.

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