D.S. v. Trumbull Bd. of Educ.

975 F.3d 152

D.S., BY AND THROUGH His Parents and Next Friends, M.S. and R.S., Plaintiff-Appellant,

v.TRUMBULL BOARD OF EDUCATION, Defendant-Appellee.

Docket No. 19-644

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: April 21, 2020

Decided: September 17, 2020

LEONID TRAPS, Sullivan & Cromwell LLP, New York, NY (Mark Sargent, Westport, CT; Richard C. Pepperman II, James J. Browne, Sullivan & Cromwell LLP, New York, NY, on the brief), for Plaintiff-Appellant.

RYAN P. DRISCOLL, Berchem Moses PC, Milford, CT, for Defendant-Appellee.

Rebecca Adams Rieder, Connecticut Association of Boards of Education, Wethersfield, CT, for Amici Curiae Connecticut Associations of Boards of Education, National School Boards Association, and New York State School Boards Association, Inc. in support of Defendant-Appellee.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Amici Curiae Advocates for Children of New York, Legal Services, New York City, Mobilization for Justice, Inc., New York Lawyers for the Public Interest, and New York Legal Assistance Group in support of Plaintiff-Appellant.

Ellen Saideman, Law Office of Ellen Saideman, Barrington, RI (Catherine Merino Reisman, Selene Almanzan-Altobelli, Council of Parent Attorneys and Advocates, Inc., Towson, MD; Andrew Feinstein, Mystic, CT, on the brief), for Amici Curiae Council of Parent Attorneys and Advocates, Inc., National Disability Rights Network, and Disability Rights Connecticut in support of Plaintiff-Appellant.

Before: WINTER, WESLEY, SULLIVAN, Circuit Judges.

WESLEY, Circuit Judge:

The Individuals with Disabilities Education Act (the "IDEA" or the "Act"), 20 U.S.C. §§ 1400 et seq. , contains an intricate and balanced web of procedures and safeguards that ensures children with disabilities receive appropriate public education services. This case focuses on the IDEA's prescribed evaluation process, pursuant to which a school must conduct a comprehensive initial evaluation of a child with a disability and similarly comprehensive reevaluations at least once every three years, which are used to develop the individualized academic and support services that the child receives at school. Under the IDEA and its implementing regulations, the parent of a child with a disability has the right to disagree with the school's evaluation and receive an independent educational evaluation ("IEE") at public expense, which the school must consider when making decisions related to the child's education.

D.S. is a child with a disability who receives special education services under the IDEA at a therapeutic day school in Trumbull, Connecticut. D.S. underwent a comprehensive reevaluation in October 2014 and was scheduled for his next comprehensive reevaluation in October 2017, as required by the Act. With D.S.’s parents’ agreement, D.S.’s school also voluntarily conducted a functional behavioral assessment ("FBA") of D.S. in the spring of each year to understand how D.S.’s problematic behavior interfered with his academic performance.

After the school conducted D.S.’s annual FBA in March 2017 (the "March 2017 FBA"), D.S.’s parents expressed concern with the appropriateness of the "evaluations" of D.S. that his school had conducted to date—including the recent FBA and D.S.’s reevaluation from 2014—and requested a comprehensive IEE at public expense addressing not only D.S.’s behavior, but all other areas of his disability as well. In doing so, the parents sought to withdraw the consent they had initially provided for the October 2017 comprehensive reevaluation, and declined the school's offer to test D.S. in each of the parents’ areas of concern during that upcoming reevaluation. The Trumbull Board of Education (the "Board") refused D.S.’s parents’ requests, and filed a due process complaint challenging the IEE request.

An administrative hearing officer denied D.S.’s parents’ request for a publicly funded IEE that addressed non-behavioral concerns. The hearing officer determined (without any objection by the Board) that an FBA is the type of evaluation under the IDEA that triggers a parent's right to an IEE at public expense, but found that there must be a connection between the evaluation with which a parent disagrees and the publicly funded IEE that they seek before a parent is entitled to the latter. Thus, D.S.’s parents could not disagree with an FBA—which only examines behavior—to obtain a comprehensive set of publicly funded non-behavioral assessments.

D.S.’s parents sought relief in federal district court (Meyer, J. ), which found that the Board waived any argument that an FBA is not the kind of evaluation with which a parent can disagree to obtain an IEE at public expense, but affirmed the denial of D.S.’s parents’ request for an IEE with non-behavioral assessments based on the same evaluation scope theory employed by the hearing officer. The district court also found that any disagreement with the reevaluation of D.S. conducted in October 2014 was time-barred by the IDEA's two-year statute of limitations for filing due process complaints.

D.S. timely appealed. For the reasons stated below, we reverse the district court's decision.

BACKGROUND

I. The IDEA And Its Evaluation Procedures

The IDEA seeks to ensure that states provide a "free appropriate public education" (a "FAPE") to all eligible children with disabilities. 20 U.S.C. § 1412(a)(1)(A). "A FAPE, as the Act defines it, includes both ‘special education’ and ‘related services,’ " which refer to the individually tailored classroom instruction and non-academic support services that the child receives at school.

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 994, 197 L.Ed.2d 335 (2017) (quoting 20 U.S.C. § 1401(9) ).

A child with a disability receives this tailored instruction and support through their individualized education program ("IEP"). An IEP must include a statement of the child's academic achievement and functional performance, the child's academic and functional goals, how the child's disability affects their progress towards achieving those goals, how the child's progress will be measured, and the services that will be provided to help the child succeed at school. See id. (quoting 20 U.S.C. § 1414(d)(1)(A)(i)(I)–(III) ). As such, the IEP is "the centerpiece of the [IDEA's] education delivery system for disabled children." Id. (citation omitted).

Each child's IEP is developed by their "IEP Team," which is comprised of teachers, school representatives, and the child's parents or guardians. Id. (citing 20 U.S.C. § 1414(d)(1)(B) ). Indeed, "[p]arents and guardians play a significant role in the IEP process," as "[t]hey must be informed about and consent to evaluations of their child under the Act," "[t]hey have the right to examine any records relating to their child," "[t]hey must be given written prior notice of any changes in an IEP and be notified in writing of the procedural safeguards available to them under the Act," and "[i]f parents believe that an IEP is not appropriate," they may seek an administrative hearing on the matter. Schaffer ex rel. Schaffer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (internal citation omitted).

A child's IEP is based in significant part on the results of statutorily mandated evaluations of the child. See, e.g. , 20 U.S.C. § 1414(b)(2)(A)(ii), (c)(1)–(2), (d)(3)(A), (d)(4)(A). Under the IDEA, a child with a suspected disability must receive a "full and individual initial evaluation" to determine the existence and extent of their disability and whether they are entitled to special education and related services under the Act. Id. § 1414(a)(1). The child is further entitled to a "reevaluation" at least once every three years for the purpose of updating their IEP.¹ Id. § 1414(a)(2), (d)(4)(a). Because it occurs by default every three years, this is generally referred to as a triennial reevaluation (a term we'll employ throughout this decision).

The IDEA requires that a child's initial evaluation and triennial reevaluations be comprehensive. In conducting these evaluations, a school must "use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information," id. § 1414(b)(2)(A), and the school must assess the child in "all areas of suspected disability," id. § 1414(b)(3)(B). The child's IEP Team takes the results of these evaluations and regularly collaborates to develop, maintain, and update the child's IEP over the course of their education. See id. § 1414(d)(4)(A) (a child's IEP Team must review their IEP "periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved").

As another procedural safeguard, the parent of a child with a disability has an absolute right to obtain an IEE of their child, 34 C.F.R. § 300.502(a)(1), and the school must consider that IEE "in any decision made with respect to the provision of FAPE to the child," id. § 300.502(c)(1). An IEE is defined in the IDEA's implementing regulations as "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).

Though this IEE right is unfettered by statute, it is practically constrained by the parent's ability or desire to pay for an IEE. Nevertheless, there is a limited circumstance in which a parent may seek an IEE at public expense.² A parent is entitled to a publicly funded IEE "if the parent disagrees with an evaluation obtained by the public agency." Id. § 300.502(b)(1). If a parent disagrees with an evaluation and requests an IEE at public expense, "the public agency must, without unnecessary delay, either [ ] [f]ile a due process complaint to request a hearing to show that its evaluation is appropriate," or "[e]nsure that an [IEE] is provided at public expense." Id. § 300.502(b)(2).³

The...