New Ruling on FBA’s and IEE’s
Second Circuit
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.
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SPED LAW BLOG 
Thank you for this post. In light of this ruling, are the other procedures in effect (e.g. written parent consent, completion within 60-days, development of an evaluation or reevaluation report, full parent participation, and IEP team review)?
If the parent disagrees with only the FBA -> BIP, am I interpreting this correctly that they will have to request an IEE for all components?
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Always check your circuit. This case implies exactly what you said. If a parent wanted a different FBA they would have to request the whole reevaluation. When I work with districts and parents request an IEE, we always work to narrow down to the specifics of the eval they want instead of the whole thing.
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I am kind of interested in this ruling. To me, it seems that parents should be able to request an FBA, and teams should be able to do an FBA without going through the whole lengthy reevaluation process and paperwork. I am doing this now for my son (who has autism and other challenges), and I hope teams can focus on my son’s needs rather than take too much time away for ridiculous paperwork . To me, I want the flexibility for team to do an FBA when necessary and suggested… without all the excruciating paperwork required in full re-eval. Seems to me, I want the efforts of team focused on observation and then implementation of intervention…. rather than ridiculous lengths involved in full eval, but I realize all this involves a lot of trust and execution. As parent, am looking for team to use their efforts to help me direct efforts for my son… not to do paperwork all the time. Although I have had to advocate for my son, I also want to ensure my son’s teachers have time to focus on intervention vs just paperwork all the time.
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