05 October 2020

Second Circuit Upsets the Apple Cart with Respect to Evaluations and IEE Requests

Can a parent request an independent education evaluation (IEE) at public expense from a functional behavior assessment (FBA)?  Here, in Michigan, most would say yes; based, primarily, on guidance from the Office of Special Education Program (OSEP).  Yet, the Second Circuit said “no” in a recent decision, D. S. v Trumbull Bd of Educ, ___ F3d ___; 120 LRP 28133 (2nd Cir 2020)(Case No. 19-644, September 17, 2020).

The procedural history was complicated.  However, for the purposes of this discussion, it may be simplified.  The school district completed a triennial evaluation of the student in 2014.  Shortly before the 2017 triennial evaluation, the school completed an FBA.  The parents requested an IEE at public expense from the FBA, but the school district declined.  The parents initiated a due process hearing.  Interestingly, the parents and the school district agreed the FBA was an evaluation from which the parents could request an IEE at public expense.

The parties’ agreement did not persuade the Second Circuit.  Characterizing the case as one of first impression, the court parsed the language of IDEA and its implementing regulations and held the only types of evaluations from which parents were entitled to request IEEs at public expense were the initial evaluation and triennial evaluations.  The FBA in question was not completed as part of an initial evaluation or three-year reevaluation.  Therefore, the parents were not entitled to an IEE at public expense from the FBA.  This rule, the court noted, had the salutary effect of avoiding the absurd result of a parent obtaining an IEE at public expense on the eve of the school district undertaking a triennial evaluation.

We recommend Michigan school districts exercise care in applying this decision.  It may or may not be followed in the Sixth Circuit, where Michigan is located, or by the Michigan Department of Education.