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On September 17, 2020 the United States Court of Appeals for the Second Circuit issued a decision in D.S. v. Trumbull Board of Education, 120 L.R.P. 28133 (2d Cir. 2020) pertaining to independent educational evaluations (IEE).听 The decision rejected the United States Department of Education (USDE) Office of Special Education Programs鈥� (OSEP) guidance that a parent may seek an IEE if they disagree with a functional behavioral assessment (FBA) conducted for the purpose of developing a student鈥檚 individualized educational program (IEP). Additionally, the Court determined that a two-year statute of limitations does not apply to a parent鈥檚 request for an IEE since they are not required to file a due process complaint to obtain an IEE at public expense.听 The jurisdiction of the Second Circuit includes New York State and a request for 鈥渆n banc鈥� review (a request that the case be reheard by a majority of active Circuit Court judges because the case presents questions of exceptional importance) was denied.听听

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This case stems from a Connecticut student who had a three-year reevaluation in October 2014 and was scheduled for another three-year reevaluation in October 2017.听 Additionally, FBAs were conducted in the spring of each year to help understand the student鈥檚 problematic behaviors and their interference with his educational performance.听 After a March 2017 FBA, the parents sought a comprehensive IEE, at public expense, addressing not only behavior but all other areas of the student鈥檚 disability.听 The Trumbull Board of Education refused the parents鈥� request and filed a due process complaint challenging the IEE request.听 The hearing officer denied the parents鈥� request because an FBA only examines behavior and therefore, there was no connection between the FBA and the request for a comprehensive set of publicly funded non-behavioral evaluations.

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On appeal, the federal district court agreed with the evaluation scope theory employed by the hearing officer and also found that any dispute regarding disagreement with the 2014 evaluations was time barred by the Individuals with Disabilities Education Act鈥檚 (IDEA) two-year statute of limitations. This decision was appealed.

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The United States Court of Appeals for the Second Circuit opined that it was required to address 鈥渨hat constitutes an evaluation鈥� and ultimately determined that an evaluation 鈥渕eans a comprehensive assessment of a child that follows mandatory procedures听 outlined in Section 1414 of the IDEA, including assessing the child in all areas of their disability.鈥澨� 听The Court concluded, therefore, that an evaluation is an initial evaluation or a reevaluation and an FBA, 鈥渟tanding alone鈥� is neither. 鈥淎n assessment tool is not an 鈥榚valuation鈥� in its own right 鈥� at least not with respect to a parent鈥檚 entitlement to an IEE at public expense.鈥�

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In New York, FBAs may be included in the initial evaluation or reevaluation in accordance with section 200.4 (b)(1)(v) of the Regulations of the Commissioner of Education.听 Consent is required for these comprehensive evaluations in accordance with section 200.4(a)(iv) of the Regulations of the Commissioner of Education.听 Communication between parents in their preferred language or mode of communication and school personnel is paramount to ensure meaningful parent engagement in their child鈥檚 special education programs and services, as required by the IDEA.听 Therefore, when an听 FBA is being conducted outside of the initial evaluation or reevaluation process and thus not deemed a 鈥渃omprehensive evaluation鈥� as defined by the Trumbull decision, it is strongly recommended that districts continue to obtain parental consent and ensure that parents have knowledge of the uses of any evaluations conducted by the school district.听听

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The United States Court of Appeals for the Second Circuit also held that the IDEA鈥檚 two-year statute of limitations period for filing a due process complaint does not apply to requests by parents for IEEs.听 The Court found that the parents鈥� challenge to an October 2014 reevaluation was timely even though the next reevaluation was due in five months.听听

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School districts should consult with their attorneys regarding the implications of the Trumbull decision on parents鈥� requests for IEEs.

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