In D.S. v. Trumbull Board of Education, No. 19-644, 2020 WL 5552035, ___ F.3d ___, 77 IDELR 122 (2d Cir. Sept. 17, 2020), the court, by its own description, addressed two issues of first impression: “[W]hether an FBA is an ‘evaluation’ that triggers a parent’s right to an IEE at public expense [and] [a]s to [a] Triennial Reevaluation, whether the IDEA’s two-year statute of limitations for filing due process complaints applies to a parent’s IEE request.” 2020 WL 5552035, at * 6. It answered both questions in the negative.

The case involved a student with ADHD and signs of developmental and behavioral disorders, such as autism. He received a comprehensive triennial reevaluation in October 2014, which reported a decline in his abilities and performance, and stated that his intelligence had fallen to the extremely low range. He was scheduled for another reevaluation in October 2017. In addition, his parents and the school agreed to conduct a functional behavioral assessment (FBA) for him in the spring of each year. The school conducted the annual FBA in March 2017, but the parents contested the adequacy of both the FBA and the 2014 comprehensive evaluation. They sought an independent educational evaluation at public expense as to behavior and all other areas of the student’s disability. They also sought to withdraw their consent for the comprehensive reevaluation scheduled for October 2017. The school refused the requests and filed for due process to challenge the request for an IEE at public expense.

The hearing officer denied the parents’ request for a publicly funded IEE that addressed non-behavioral concerns, saying there has to be a connection between the evaluation with which the parent disagrees and the publicly funded IEE they seek. The hearing officer granted the parents an independent assessment of the student’s behavior at public expense, ruling that the “Behavior Assessment for Children” sought by the parents would better account for the student’s complex profile, id. at *9, though apparently the hearing officer also ruled that the request was mooted by the district’s agreement to pay for the independent FBA, id. at *6 n.6.  The school never argued that an FBA is not an evaluation that supports the right to a publicly funded IEE.

The parents filed suit in district court. That court found that the school waived any argument that the FBA is not an evaluation triggering the publicly funded IEE right, but affirmed the hearing officer’s decision that denied the request for an IEE that would exceed the scope of the behavioral assessment and cover other areas. The district court also ruled that any disagreement with the 2014 evaluation could no longer be pursued due to the two-year statute of limitations. The parents appealed, and the court of appeals vacated the judgment, reversed the decision, and remanded.

Despite a concession to the contrary on the part of the defendant, the Second Circuit panel ruled without dissent that an FBA, standing by itself, is not an evaluation for purposes of the parent’s right to an IEE at public expense. Judge Wesley’s opinion reasoned that courts are not bound to accept the concessions of the parties and that section 1414 of title 20, which covers evaluations, established just two types: initial evaluations and reevaluations.  The court said: “The statutory language is clear; an evaluation means a comprehensive assessment of the child that follows the mandatory procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of their disability.” Id at *7. The regulations, the court said, also support that interpretation.

The court declared that an FBA, standing alone, is neither an evaluation nor a reevaluation because it lacks the comprehensiveness the statutory definition requires. “By its nature, it is limited to understanding and improving one aspect of the child’s overall learning experience. Any given FBA might employ different techniques, but those techniques are uniformly aimed at understanding only the child’s behavior.” Id. at *8. The court said that when parents request an IEE at public expense, the regulations do not limit the scope of the IEE. The parents may nonetheless challenge an evaluation on the ground that it is too limited.

The court said it disagreed with Harris v. District of Columbia, 561 F. Supp. 2d 63 (D.D.C. 2008), which concluded that an FBA is an evaluation, and said it did not find persuasive H.D. v. Central Bucks School District, 902 F. Supp. 614 (E.D. Pa. 2012), which rejected a request for a publicly funded FBA because the district’s FBA was adequate without addressing whether an FBA was an evaluation.

Perhaps more significantly, the court said it disagreed with two U.S. Department of Education policy letters that state that insufficient FBAs support the right to a publicly funded IEE. Letter to Christiansen, U.S. Dep’t of Educ. Office of Spec. Ed. and Rehab. Servs., 2 (Feb. 9, 2007),, and Letter to Scheinz, U.S. Dep’t of Educ. Office of Spec. Ed. and Rehab. Servs., 1–2 (June 7, 2000),, also Questions and Answers on Discipline Procedures 15–16 (2009), The court said that because the interpretations ignored the text of the statute and regulations, they were owed no deference.

The court did identify a different option for parents: “Rather than demand a comprehensive IEE at public expense in response to this targeted assessment of D.S.’s behavior, the parents could have requested that the school conduct another reevaluation of D.S. . . . See 20 U.S.C. § 1414(a)(2)(A) (“A local educational agency shall ensure that a reevaluation of each child with a disability is conducted … if the child’s parents … request[ ] a reevaluation.”). Had the parents sought such relief, the alleged harm could have been promptly redressed. And if the new evaluation and its suggestions came up short, then D.S.’s parents could have voiced their disagreement and obtained the publicly funded comprehensive evaluation they seek in this case.” 2020 WL 5552035, at *11.

Finally, the court held that the IDEA’s two-year statute of limitations for due process complaints does not apply to requests for IEEs at public expense. The court reasoned that the parent does not need to file a due process complaint to obtain a publicly funded IEE. Only if the school fails to accede to the IEE request and does not file a due process complaint would the parents need to file a hearing request, and then the limitations would run from the date of the district’s statutory violation in failing to accede or to file for due process. According to the court, a parent has the right to disagree with an evaluation and request a publicly funded IEE each time a new evaluation is conducted. “The time frame within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. . . . Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, . . . the parent must disagree with any given evaluation before the child’s next regularly scheduled evaluation occurs.” Id. at *13.

Hence, the parents’ request for a publicly funded IEE on the ground that the 2014 reevaluation was inadequate was timely because it occurred before October 2017, the date for the next reevaluation. The appropriateness of the 2014 evaluation would be judged on the basis of the child’s condition at that time. The case was thus remanded to the district court to address the 2014 evaluation, though the court of appeals suggested that the parties reach an agreed resolution in light of the passage of time.

The court’s interpretation of the right to an IEE at public expense is not entirely inconsistent with other caselaw. The District of Columbia district court ruled that specific deficiencies of individual assessments in a comprehensive evaluation create an entitlement to a publicly funded IEE in all relevant areas, even those in which the assessments were adequate. Jones-Herrion v. District of Columbia, No. CV 18-2828, 2019 WL 5086693, 75 IDELR 92 (D.D.C. Oct. 10, 2019). On the other hand, one might question the wisdom of rejecting a longstanding interpretation of the IDEA by the U.S. Department of Education when neither party disputed the interpretation, the DOE itself was not represented as an amicus, and the specific demand for an independent, publicly funded FBA was apparently moot. The court supported its conclusion that the two-year limitations does not apply to publicly funded IEE requests by a reasoned analysis of the statute. It remains to be seen whether its view that IEE requests are timely made only until the date of the next evaluation will be persuasive to other courts.