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Court of Appeals Decision Short Circuits Requests for Independent Evaluations

Updated: Jun 22, 2021

A recent decision by the Second Circuit Court of Appeals got the attention of the special education community. The court ruled that a Functional Behavior Assessment (FBA) is only a “tool” and not an “evaluation.” This ruling will restrict parents’ right to get a publicly funded Independent Educational Evaluation (IEE) for specific, targeted assessments of their children, such as FBAs.

Not long ago, when I worked as a school district support specialist, one of my jobs was to perform FBAs. Suppose a student had exhibited challenging behavior, but the strategies the school team tried were not working. In that case, an FBA is a logical next step.

According to Denise Marshall, CEO of the Council of Parent Attorneys and Advocates (COPAA), “an FBA, if it is done right, will include interviews, observations, record reviews, and most importantly data.”

Marshall went on to say that an FBA is “certainly a tool, but an evaluation is much more accurate to what happens.”

As someone who completed dozens of FBAs over my years as a district support specialist, I agree with Marshall’s description. It would typically take 30-60 days to complete an FBA, which is not an easy or quick undertaking. The process included analyzing behavior data, reviewing documents in a student’s file, observing the student, interviewing the student, teachers, parents, and culminated in a peer review by a Board Certified Behavior Analyst (BCBA) on staff. Once complete, we would present a summary report to the team supporting the student and develop a Behavior Intervention Plan (BIP).

The families in my former school district were fortunate to have a thorough and systematic protocol for FBAs. We would often receive a one-page document from families who moved in from another state with only a brief description of behavior. However, it was still called an “FBA.” While individual states have regulations that describe the minimum requirements for an FBA, it is not standardized across the United States. For families who don’t live in a district that have established procedures for FBAs, it is important for them to have recourse when an evaluation like a “one-sheet” FBA is completed. With the Second Circuit’s decision, the rights of families to request an IEE are no longer protected.

Another wrinkle in this Second Circuit’s decision was the ruling that the statute of limitations for IEE requests is not two years but is instead “adjustable” and that IEEs can be requested only in response to initial and triennial reevaluations.

COPAA’s Legal Director, Selene Almazan, considers the court’s decision “devastating.” She continued by saying that “Justice O’Conner enshrined in Schaffer v. Weast that parents always have access to an IEE.” And for tens of thousands of families across New York, Connecticut, and Vermont, this right has been stripped away.

Almazan went on to say, “the Department of Education has long recognized an FBA as an evaluation for IEE purposes. The Second Circuit saying that we only have access to an IEE at an initial or triennial evaluation period, and now all intermediate evaluations are not eligible for IEE? It doesn’t make any sense.”

After discussing this case with a former colleague and BCBA, they characterized the decision as “uninformed and detrimental to supporting students.” We agreed that the ruling showed the court had a misunderstanding of what FBAs are intended to be, an evaluation for educational planning centered around behavioral supports. We both wondered if the court overgeneralized by saying all FBAs are tools rather than evaluations, instead of clarifying that only FBAs who meet the basic requirements are evaluations. In other words, they threw the baby out with the bathwater.

FBAs are often the only thing standing between a student receiving support and being removed to a more restrictive placement. As long as this decision stands, families will have a more challenging time getting support for their children, which is good for no one.

COPAA has filed a motion for leave to file an Amicus brief with the Second Circuit, supporting the school district’s petition to re-hear the case. As of this writing, COPAA is awaiting the court’s order in response to its motion.


Tim Villegas is the Director of Communications for MCIE, Editor-in-Chief of Think Inclusive, and the host of the Think Inclusive Podcast. Follow him on Twitter @TheRealTimVegas.


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