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D.S. v. Trumbull Board of Education

United States District Court, D. Connecticut

February 15, 2019

D.S., by and through his parents and next friends, M.S. and R.S., Plaintiff,



         The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., is a landmark federal statute that protects the rights of disabled children to receive a free and appropriate public education. One of the keys to ensuring that a public school district provides an appropriate education is the proper evaluation over time of the child's disabilities. The IDEA requires schools to conduct a range of comprehensive and periodic evaluations for each disabled child.

         But parents don't always agree with the results of evaluations that a school may conduct. And so the IDEA allows for parents under certain circumstances to request that the school pay for an outside expert to conduct what is known as an “independent educational evaluation” (or, in IDEA-acronym-speak, an “IEE”).

         This case raises important questions about the right to a publicly funded IEE. In light of federal regulations that place limits on the scope of this right and when it must be asserted, I reach two conclusions that lead me to grant judgment in favor of the defendant Trumbull Board of Education and against plaintiff student D.S. and his parents who have filed this action on his behalf.

         First, I conclude that a parent's statement of disagreement with a limited assessment does not entitle a parent to insist that the school district pay for an IEE to conduct additional testing or assessments beyond the scope of the assessment with which the parent has disagreed. Therefore, I conclude that the Hearing Officer in this case properly declined to require the Trumbull Board of Education to pay for a wide range of testing and assessments that were requested by the parents of D.S. and that were beyond the scope of the Functional Behavior Assessment with which the parents disagreed.

         Second, in light of the general two-year time limitation that the IDEA imposes on a parent's right to seek a due process hearing when the parent believes that a school district has violated the student's rights under the IDEA, I conclude that a parent who seeks the benefit of a publicly funded IEE must lodge a disagreement and set in motion the parent's right to a due process hearing within two years of the school evaluation that the parent disputes. Therefore, I conclude that to the extent that the parents of D.S. now seek to re-frame their claim to be about their disagreement with a prior evaluation by the school district that took place more than two years before their request for a publicly funded IEE, the parents waited too long to seek to dispute this prior evaluation. In light of all these conclusions, I will grant the defendant Trumbull Board of Education's motion for summary judgment and deny plaintiff D.S.'s cross-motion for summary judgment.


         Before reviewing the facts involving D.S. and the dispute with the Trumbull school district, I will describe the relevant and somewhat complex legal framework. Beyond describing the IDEA in general, my focus will be on the important but limited role under the IDEA for independent educational evaluations.

         The IDEA and the right to an independent educational evaluation

         The IDEA requires public school districts to provide disabled children with a free and appropriate education (commonly referred to as a “FAPE”). See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 993 (2017). When Congress enacted the IDEA, it identified multiple purposes for the law including “to ensure that all children with disabilities have available to them a free appropriate public education . . . designed to meet their unique needs, ” and “to ensure that the rights of children with disabilities and parents of such children are protected, ” as well as “to assess, and ensure the effectiveness of, efforts to educate children with disabilities.” 20 U.S.C. § 1400(d)(1)(A)-(B), 1400(d)(4).

         The IDEA requires school districts to create for each child an individualized education program (commonly referred to as an “IEP”). See Endrew F., 137 S.Ct. at 994 (internal quotation marks omitted). An IEP is a written statement that sets out a child's performance, while establishing annual and short-term objectives and describing the specially designed instruction and services to enable the child to meet those objectives. Ibid. It functions as no less than “the centerpiece of the IDEA's educational delivery system.” Ibid. (internal quotation marks omitted). The procedures for the drafting and development of an IEP “emphasize collaboration among parents and educators and require careful consideration of the child's individual circumstances.” Ibid. (citing 20 U.S.C. § 1414); see also T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014) (describing IEPs); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (same).

         The IDEA requires schools to conduct a series of evaluations of students who are or who may be disabled. At the outset, a school must conduct an “initial evaluation” in order “to determine if the child is a child with a disability.” 20 U.S.C. § 1414(a)(1)(B). If the child has a disability, then the school must conduct periodic re-evaluations if the school determines that one is warranted, or if a teacher requests one, or if the child's parent or guardian requests one. Id. § 1414(a)(2)(A)(i)-(ii).

         What is an “evaluation” within the meaning of the IDEA? The IDEA does not itself define the term, but its implementing regulations provide that an “[e]valuation means procedures used in accordance with [34 C.F.R.] §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.” 34 C.F.R. § 300.15.

         At a minimum, a school district must conduct a comprehensive reevaluation at least once every three years (known as a “triennial evaluation”) unless the parents and school agree that such a reevaluation is not necessary. 20 U.S.C. § 1414(a)(2)(B); 34 C.F.R. § 300.303(b); Cooper v. District of Columbia., 77 F.Supp.3d 32, 37 (D.D.C. 2014). A triennial evaluation requires the school district to review existing information about the child as well as to conduct a new round of additional testing to determine the child's abilities and needs. See 20 U.S.C. § 1414(b), (c); 34 C.F.R. §§ 300.304-305 (describing comprehensive reevaluation procedures); see also James v. District of Columbia, 194 F.Supp.3d 131, 143 (D.D.C. 2016) (describing triennial reevaluation requirements); Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 269 & n.25 (D. Conn. 2008) (same).

         Although the IDEA places the burden on school districts in the first instance to conduct the necessary specialized evaluations of a disabled child, the “core” of the IDEA is a “cooperative process . . . between parents and schools” to jointly design each student's individualized education plan. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). Accordingly, because parents are full “members of ‘IEP teams, '” they “must be informed about and consent to [the school's] evaluations of their child under the Act.” Ibid. (citing 20 U.S.C. §§ 1414(d)(1)(B), 1414(c)(3)).

         In addition to what I have just described, the IDEA mandates more procedures to ensure that schools carry out their duty to provide a free and appropriate education while allowing for parental participation. See 20 U.S.C. § 1415(a). Among the required procedures are “[a]n opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, ” as well as “to obtain an independent educational evaluation of the child” apart from the periodic evaluations that a school itself may conduct. Id. § 1415(b)(1) (emphasis added); Schaffer, 546 U.S. at 60.

         Beyond this passing reference in the statute to an “independent educational evaluation, ” the IDEA does not specify when a parent is entitled to one. Nor does it say what role the findings of an IEE should play in terms of a school's ongoing duty to provide a free and appropriate education.

         To fill this gap, the Department of Education has issued a regulation on the subject of IEE's. See 34 C.F.R. § 300.502 (Independent educational evaluation). The regulation defines an IEE to mean “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” Id. § 300.502(a)(3)(i).

         The regulation further provides for a qualified right of a parent to obtain an IEE at public expense: “A parent has the right to an independent educational evaluation [IEE] at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 C.F.R. § 300.502(b)(1); see also Conn. Agencies Regs. § 10-76d-9(a) (“A parent shall be permitted to obtain an independent educational evaluation, in accordance with the provisions of the IDEA.”)

         As the Supreme Court has explained, this right to a publicly funded IEE “ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion.” Schaffer, 546 U.S. at 60-61. Parents who disagree with a school district's evaluation of their child “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” Id. at 61; see also Phillip C. ex rel. A.C. v. Jefferson Cty. Bd. of Educ., 701 F.3d 691, 695-98 (11th Cir. 2012) (discussing purposes of and justification for requiring school district to pay for IEE notwithstanding lack of financial payment requirement in the IDEA statute).

         Yet, as the Eleventh Circuit has observed, “[t]he parental right to an IEE is not an end in itself.” T.P. ex rel. T.P. v. Bryan Cty. Sch. Dist., 792 F.3d 1284, 1293 (11th Cir. 2015). That is because a school district is not obliged to accept or implement the findings of an independent expert. An IEE need only be “considered” by the school district to decide what services are necessary and consistent with its overarching obligation to provide a free and appropriate public education. See 34 C.F.R. § 300.502(c)(1); Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 (2d Cir.), cert. denied, 139 S.Ct. 322 (2018).

         The IDEA regulations go on to describe what procedure a school district must follow after a parent lodges a disagreement with a school district evaluation and makes a request for the school district to pay for an IEE. At that point, the burden shifts to the school district to do one of two things: (1) to honor the parent's request to pay for an IEE, or (2) to initiate a due process hearing before a hearing officer in order to prove that its evaluation with which the parent disagrees was appropriate. 34 C.F.R. § 300.502(b)(2). The school district is free to ask the parent why the parent disagrees with the school district's evaluation, but the school district may not require the parent to explain the basis for ...

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