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Second Circuit Holds FBAs Are Not “Evaluations” for Purposes of Special Ed Parents’ Independent Evaluation Requests

By on October 13, 2020 in Special Education/504 with 0 Comments

In a precedential opinion sure to make waves in the special education community, on September 17, 2020, in D.S. v. Trumbull Board of Education, 120 L.R.P. 133 (2d Cir. 2020), the Second Circuit Court of Appeals held that functional behavioral assessments (“FBAs”) of special education students conducted by a public school district are not “evaluations” capable of triggering a parent’s right to request an independent educational evaluation (“IEE”) from the district by an outside evaluator, at public expense.  The case puts front and center an issue of first impression that has rarely been addressed in the district courts of the Third Circuit, and never in this context.  While the decision is binding in New York, Connecticut, and Vermont, it will surely shake things up in our neighboring Third Circuit jurisdictions of New Jersey, Pennsylvania, and Delaware, where each year public school districts spend tens of thousands of dollars performing independent FBAs at parental request, by outside private evaluators, rather than choosing to spend even more defending FBAs conducted by the school district itself. 

Under the Individuals with Disabilities Education Act (“IDEA”), school districts are required to perform a comprehensive initial evaluation of the child in all areas of suspected disability prior to rendering an initial eligibility determination for special education and related services and developing an individualized education program (“IEP”) for the child.  If the child is eligible, the district is also required to conduct comprehensive “triennial” reevaluations every three years.  Pursuant to federal regulations, a parent is entitled to an IEE at public expense “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent, unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the school district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments, so long as only one such request is made in response to the district evaluation or reevaluation.

In Trumbull, the student, D.S., underwent a comprehensive reevaluation in October 2014, making him due for his next triennial reevaluation in October 2017.  Yet, in the spring of each school year, the district and parent voluntarily agreed to conduct an FBA, in order to help them better understand the motivations underlying D.S.’s problem behaviors and assist them in fine-tuning his IEP to reduce or extinguish those behavior in order to ensure they did not interfere with his learning.  In response to the district’s March 2017 FBA, D.S.’s parents requested an IEE, seeking not only a private FBA, but also many other types of private assessments, at public expense, and they sought to withdraw their consent to his October 2017 triennial reevaluation.  The district refused and filed for due process in response to the IEE request. 

The procedural history of the case was nearly as fascinating as the Second Circuit’s substantive holding.  At the initial due process hearing, the hearing officer accepted that an FBA was a type of evaluation that could trigger the right to an IEE at public expense, and the school district did not dispute that position.  Yet, the hearing officer rejected the parents’ IEE request, finding that they could not make an IEE request for comprehensive reevaluations in other areas that exceeded the scope of the FBA conducted by the district.  On appeal, the federal district court found that the school district had waived any argument that an FBA was not an evaluation for purposes of an IEE request, and affirmed the hearing officer’s finding that the parents could not request an IEE at public expense that exceeded the scope of the district’s evaluation.  The district court also found that the IDEA’s two-year statute of limitations on due process complaints barred the parents from basing their request for an IEE upon an alleged disagreement with the October 2014 comprehensive reevaluation. 

On further appeal, the Second Circuit reversed the district court and held that the parents did not have a right to an independent FBA at public expense because an FBA is not an “evaluation” within the meaning of the IDEA for purposes of an IEE request, choosing to take up the issue sua sponte, even though that issue was not addressed at any prior point in the litigation.  The circuit court held:

“D.S.’s parents argue, the hearing officer found without objection, the district court assumed, and the Board concedes that an FBA constitutes an ‘evaluation’ with which a parent may disagree to obtain an IEE at public expense. As a result, the hearing officer and district court both concluded that, with respect to a limited assessment like an FBA, a parent’s right to disagree may not exceed the scope of the contested evaluation. This contention/finding/assumption/concession accepts a false equivalency that if not righted produces a remedy at odds with the purpose and intent of the Act.”

The Second Circuit then explained its reasoning that the IDEA’s plain text sets forth two types of evaluations:  initial evaluations and reevaluations.  “That the statute does not expressly or impliedly mention a third category of evaluations comprised of limited or targeted assessments,” the court reasoned, “suggests that there is none.”  Citing 20 U.S.C. § 1414(b)(2), the court carefully laid out the four critical characteristics that the federal regulations utilize to define an assessment as either an “initial evaluation” or a “reevaluation,” including (1) the use of a variety of assessment tools and strategies, (2) not using any  single measure or assessment as the sole criterion, (3) using technically sound instruments to assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors, and (4) “assessing the child in all areas of suspected disability.”  The court made clear that, unless an evaluation by the school district meets these requirements as an “initial evaluation” or a “reevaluation” (meaning a triennial), it is merely a “limited or targeted assessment” that does not trigger a parent’s right to request an IEE at public expense.  The court plainly stated that, “[a]n FBA, standing alone, is neither,” though its reasoning could just as easily be applied to many other types of assessments of a special education child performed outside the context of a full initial evaluation or triennial reevaluation.

In so holding, the Second Circuit rejected the two policy letters from the U.S. Department of Education that school districts and parents have long relied upon for guidance in this area.  See Letter to Christiansen (Feb. 9, 2007) (opining that an FBA conducted to develop a behavioral intervention plan for a child would trigger a parent’s right to request an IEE at public expense); see also Letter to Scheinz (June 7, 2000) (opining that a parent could obtain an IEE at public expense in response to an FBA conducted outside the context of an initial eval or triennial reeval).  Flatly dismissing the existing policy guidance from U.S. DOE, the court held:  “The Department of Education’s interpretation ignores the plain text of the statute and regulations, and therefore we owe it no deference.”             

In the wake of this decision, observers and practitioners of special education law will surely have interesting days ahead when faced with requests from parents for IEEs at public expense in response to “limited” or “targeted” evaluations conducted by a district in between triennial reevaluations.

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Cameron R. Morgan

About the Author

About the Author:

Mr. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice. He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

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