Toolbox Tuesday: Big decision on FBAs….

The Toolbox is our firm’s all day training program dealing with serving students with disabilities who present challenging behaviors.  We talk a lot in the Toolbox about FBAs—Functional Behavioral Assessments.  A recent decision from the 2nd Circuit Court of Appeals upends the conventional wisdom about FBAs and is worthy of your attention.

Is an FBA an “evaluation”?  That’s the legal issue.  If it’s an evaluation and the parent disagrees with it, the parent can obtain an IEE (Independent Educational Evaluation) possibly at school district expense.  In the Toolbox training I have always answered this question in the affirmative.  I’ve based that on some federal district court decisions and, more importantly, guidance from the Department of Education.  Now the 2nd Circuit has definitively held that an FBA is not an evaluation and thus it does not justify an IEE request. 

Isn’t the court supposed to defer to the interpretation of the law by the Department of Education?  Yes, normally that’s the way it works. But in this case the court said:

The Department of Education’s interpretation ignores the plain text of the statute and regulations, and therefore, we owe it no deference.

According to the court, the “plain text of the statute” tells us that the term “evaluation” refers only to the initial FIIE (Full, Individual Initial Evaluation) and the three-year comprehensive re-evaluation.  Everything else is only an “assessment tool,” rather than an “evaluation.”  Key Quote:

The IDEA’s mandatory evaluation process is set forth in Section 1414 of the Act.  As explained above, it discusses two types of evaluations: initial evaluations and reevaluations.  That the statute does not expressly or impliedly mention a third category of evaluations comprised of limited or targeted assessments suggests that there is none.

This is not a binding precedent in the 5th Circuit, but it is sure to be cited in future cases, and it should color the legal advice you get.  If you have a request for an IEE based on a parent’s disagreement with your FBA, give your lawyer a call, and be sure your lawyer is aware of D.S. v. Trumbull Board of Education.  It was decided by the 2nd Circuit on September 17, 2020 and can be found at 120 LRP 28133.


Tomorrow: Need to learn more about dyslexia?