New Ruling on FBA’s and IEE’s
In the case of D.S. v. Trumbull Board of Education, issued on September 17, 2020, the United States Court of Appeals for the Second Circuit ruled FBAs are not evaluations or reevaluations within the meaning of the IDEA. This decision is inconsistent with the guidance of the USDOE, which has previously stated IEEs are evaluations and must adhere to the procedural requirements applicable to evaluations and revaluations under the IDEA. The requirements include written parent consent, completion within 60-days, development of an evaluation or reevaluation report, full parent participation, and IEP team review.
According to the Second Circuit Court (Connecticut, New York, and Vermont) an evaluation or a reevaluation must consist of a comprehensive assessment of all potential areas of disability and all program needs. Any assessment targeting a single issue or problem area, such as an FBA, is not a comprehensive assessment and therefore is not a complete evaluation or reevaluation. Since it is not a complete evaluation or reevaluation, the parent is not able to demand an independent educational evaluation.
What to learn from this:
- Parents can request an IEE only when they disagree with a full evaluation or reevaluation completed by the LEA.
- A parent can only request an IEE once in every evaluation or reevaluation cycle.
- If a parent believes an evaluation or reevaluation was deficient because it lacked or had deficient testing or assessments addressing a particular issue or area, the parent must now first request a new evaluation or reevaluation from the LEA, and only then can they ask for an IEE to contest the results.
The rulings of the Second Circuit do not establish precedent in other jurisdictions but could be cited as persuasive authority.