Federal Court Rules: No Right to Independent Functional Behavioral Assessment

On September 17, 2020, the U.S. Court of Appeals for the Second Circuit ruled that parents of students with a disability are not entitled to obtain an independent Functional Behavioral Assessment (“FBA”) as a form of an independent educational evaluation (“IEE”). (D.S. v. Trumbull Bd of Educ.) This ruling is contrary to guidance from the U.S. Department of Education and is contrary to prior rulings of the New York State Review Officer. In fact, the Court reached this ruling notwithstanding that the school district had conceded the right to an independent FBA as a form of IEE from the outset. The Court of Appeals also ruled that the two years statute of limitations contained in the IDEA does not apply to a parent’s request for an IEE.

Parents of students with disabilities are entitled to obtain an independent educational evaluation (“IEE”) at school district expense if the parent disagrees with an evaluation obtained by the school district. A parent may request only one IEE at public expense each time a school district conducts an evaluation with which the parent disagrees. Until now, this has been interpreted to allow parents to request an IEE any time they disagree with any evaluation, including an FBA, conducted by the school district.

The Court of Appeals defined “evaluation” for the purpose of determining when a parent is entitled to an IEE: it is a comprehensive assessment of the child that follows the procedures outlined in the IDEA, including assessing the child in all areas of disability. It is an “initial evaluation” or a “reevaluation.” According to the Court of Appeals, an FBA “is best considered as an ‘assessment tool’ or ‘evaluation material’ that a school can use in conducting an evaluation. … But an assessment tool is not an ‘evaluation’ in its own right – at least not with respect to a parent’s entitlement to an IEE at public expense.”

In addition, by stating that the right to an IEE only arises when there has been a comprehensive multi-focused assessment of all areas of the child’s disability, annual assessments to determine levels of functioning and progress are likely to also not give rise to a parent’s right to an IEE at public expense.

The Court of Appeals reiterated that all a parent must do to obtain an IEE at public expense is to disagree with an evaluation obtained by the school district. Once the parent registers disagreement and requests an IEE, the school district has the “immediate and automatic burden” to respond accordingly. It may not unreasonably delay either providing the IEE at public expense or filing a due process complaint to request an impartial hearing to defend the school’s evaluation.

There is, however, no timeline stated in the IDEA by which a parent may request an IEE. Rather, according to the Court, the right “is tethered to the frequency with which the child is evaluated.” Any time that a child undergoes an initial evaluation or reevaluation, the parent’s right to an IEE ripens. By the IDEA, a reevaluation must occur once every three years, although it can be more frequent. “The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target. … Separating the IEE process from the formal dispute resolution process serves to reinforce the focus on collaboration and communication among an IEP team.”

This decision will impact any Board of Education policy or regulations which imposes a set timeframe for requesting an IEE. Please contact us to review your district’s policy on IEEs if there is a stated time limit imposed.

Please feel free to contact us with any questions or concerns regarding the foregoing.