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The State Education Department
State Review Officer

90-1

Application of a CHILD WITH A HANDICAPPING CONDITION, by her parents, for review of a determination of a hearing officer relating to reimbursement by the Board of Education of the Commack Union Free School District for the Cost of an independent evaluation.

Appearances:
Cahn, Wishod, Wishod and Lamb Esqs., attorneys for respondent, Robert H. Cohen, Esq. of counsel

DECISION

           Petitioners appeal from the determination of an impartial hearing officer finding that respondent, the Board of Education of the Commack Union Free School District, was not obligated to reimburse petitioners for the cost of an independent evaluation which they obtained for their daughter. The appeal must be sustained.

            Petitioners' twelve year old daughter was initially classified as a learning disabled student in March, 1987, while she was in third grade at respondent's Cedar Road Elementary School. That classification has continued, and is not in dispute in this appeal.

            The student was placed in regular classes, with resource room support, during third, fourth and fifth grade. Although petitioners' daughter has adjusted slowly to new classroom settings, the record indicates that she has made satisfactory academic progress. However, in January, 1989, the student's resource room teacher referred her to the child study team at the Burr Intermediate School for an evaluation, because of that teacher's concern as to the child's rate of academic progress in fifth grade, and possible difficulty in adjusting to middle school as a sixth grade student in the 1989-90 school year.

            Respondent's staff administered various psychological and educational tests to petitioners' daughter in February, 1989. Intellectual testing indicated that the student was of average intellectual ability, with age appropriate factual knowledge, expressive skills, and verbal conceptualization. However, weaknesses were noted in the child's visual motor activities, and tasks which were sensitive to distractibility and concentration, as well as perceptual and spatial organization. Respondent's psychologist described the student as a child who appeared to be timid and younger than her actual age, but cooperative. The psychologist further described the child as lacking confidence and having a tendency to withdraw. The psychologist recommended a middle school placement which would provide increased student/teacher contact, to minimize the stress which the student might have in adjusting to middle school, where students function more independently than they do in elementary school. Counseling was recommended as a related service for petitioner's daughter.

            An individual academic evaluation completed when the student was approximately midway through fifth grade, in February, 1989, indicated that her written language skills were at a 4.8 grade level, her mathematics skills were at a 4.2 grade level and her reading level was at a 3.6 grade level.

            Petitioners met with respondent's Committee on Special Education (CSE) in March, 1989, at which time the CSE recommended that the student be placed in a self-contained special education class in grade six at the middle school for the 1989-90 school year, and that she receive counseling as a related service. The CSE also recommended neurological testing be done at district expense.

            Petitioners agreed to have the neurological testing performed, but indicated that they would not allow their daughter to be placed in a self-contained class until an independent evaluation had been performed. The CSE chairperson stated that respondent would not pay for an independent evaluation, but that the CSE would defer making a recommendation to respondent until the CSE had reviewed the results of the independent evaluation.

            An independent evaluation of petitioners' daughter was performed by the staff of the Schneider Children's Hospital in July, 1989. The child's test results were similar to those obtained in the school district's evaluation. The child was described as having intellectual ability in the low average range, with significant deficits in visual reasoning, short-term memory, and visual motor integration. Her reading recognition skills were reported at a mid-fifth grade level, with a fourth grade reading comprehension level. The independent evaluation also included recommendations and academic strategies to address the student's learning disabilities in a mainstream setting with continued resource room service.

            By agreement between petitioners and the CSE, the student was placed in a regular sixth grade class with resource room services at the beginning of the 1989-90 school year. Petitioners met with the CSE on September 21, 1989, at which time the CSE agreed that the child should continue in that placement.

            By letter dated September 18, 1989, petitioners requested that respondent reimburse them in the amount of $1085.00 for their expenditures in having the independent evaluation performed. Respondent's attorney advised petitioners that their request for reimbursement was untimely, and that respondent would not reimburse them. Respondent took no further action with respect to petitioners' request until March, 1990, when it appointed an impartial hearing officer to conduct a hearing on the matter.

            A hearing was held on March 28, 1990. In a decision dated May 16, 1990, the hearing officer concluded that respondent was not obligated to reimburse petitioners for the cost of the independent evaluation, because respondent's evaluation of the student was adequate and had been correctly performed. The hearing officer further concluded that respondent was not obligated to initiate a hearing as to the adequacy of its evaluation until petitioners sought reimbursement for the cost of the independent evaluation.

            Petitioners contend that their request for reimbursement was timely, because it could not have been made until they received a final bill from the Schneider Children's Hospital.

            Respondent contends that petitioners should have advised the district of their intention to seek reimbursement from the district before they received the final bill from the Schneider Children's Hospital. Respondent further contends that its evaluation was conducted by highly qualified professionals, who used an extensive battery of widely recognized standardized tests with a high degree of reliability.

            Section 200.5(a)(1)(vi)(a) of the Regulations of the Commissioner of Education provides that upon receipt of a referral of a pupil for an initial evaluation or reevaluation, the CSE must notify the pupil's parent that:

"... if the parent disagrees with the evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. However, the school district may initiate an impartial hearing to show that its evaluation is appropriate, and if the evaluation is appropriate, the parent has a right to an independent evaluation, but not at public expense".

            Neither that regulation nor the comparable Federal regulation, 34 CFR 300.503(b), expressly provides that the parent of a child with a handicapping condition must notify public school officials of his or her intention to obtain an independent evaluation, as a condition for obtaining an independent evaluation at school district expense. Although the Commissioner of Education has previously held that a district may not be charged with the cost of an independent evaluation prior to notice from the parent of his or her intention to obtain such evaluation (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 185; Matter of Three Handicapped Children, 21 id. 353; Matter of a Handicapped Child, 23 id. 390), I note that the U.S. Department of Education has informally opined that no such notice from the parent is required under the Federal regulation (1989 EHLR 213:259). In this case, respondent's CSE was on notice as of its March, 1989 meeting with the petitioners that petitioners intended to obtain an independent evaluation, yet respondent did not initiate a hearing to determine the adequacy of the CSE's evaluation until one year thereafter. Although respondent may have been justified in waiting to review the results of the independent evaluation before initiating a hearing, I cannot condone the approximately six month delay in initiating a hearing after respondent's CSE had obtained the results of the independent evaluation.

            The hearing officer's observation that a school district need not initiate a hearing until it is specifically apprised of the parent's intention to have the district pay for the independent evaluation misconstrues the parent's right to obtain an independent evaluation at public expense. An independent evaluation will be at public expense, unless a school district initiates a hearing and the hearing officer concludes that the district's evaluation was appropriate. There is no requirement that a parent advise the district that it is expected to pay for the cost of the independent evaluation.

            The central issue in this appeal is whether the evaluation performed by respondent's staff was appropriate. An individual evaluation is intended to "... determine whether a child has a handicapping condition and the extent of his special education needs ..." (8 NYCRR 200.1[r]). The record indicates that the evaluation by respondent's staff consisted of a battery of psychological tests administered by a certified school psychologist, a battery of academic tests administered by a certified special education teacher, a battery of speech-language tests administered by a certified speech teacher, and the Woodcock Reading Test administered by a certified remedial teacher, as well as a social history update.

            An evaluation must consist not only of test results, but also an interpretation of those results by appropriate professionals, in order to provide an adequate basis for a CSE to recommend an appropriate placement and program for a student. The fact that reliable tests were administered by appropriate personnel is not dispositive of the question of whether the CSE's evaluation was appropriate. An evaluation must identify a child's instructional needs to be addressed in the least restrictive environment (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 488). In this instance, the referral for an individual evaluation was made because the child was allegedly having academic difficulties in the fifth grade and because of a concern for her ability to function in a mainstream setting in the middle school during the next school year. However, the test results do not indicate that the child was performing significantly below grade level in the fifth grade, and I note that the child's academic progress report for the 1988-89 school year reveals that the child received B's in reading, English and social studies, an A in science and a C in mathematics for the second marking period just prior to the performance of the evaluation.

            Although the school psychologist and the resource room teacher referred in their reports to the child's poor social and/or emotional adjustment, there is no indication of how that adjustment has hindered the child's academic progress. The concern expressed by these individuals for the child's ability to satisfactorily function in a mainstream setting in the sixth grade is speculative at best, and does not afford a basis for recommending the more restrictive setting of a self-contained class for sixth grade.

            It would be particularly relevant in an evaluation which has been initiated for the purpose of determining whether a change of placement is warranted to document any changes in a student's academic performance during the student's present placement. The evaluation materials in this record do not refer to the child's prior academic performance during the three years in which she has received resource room services. Therefore, it is not possible to conclude that a particular placement is or is not appropriate, on the basis of the evaluation performed by respondent's staff, which was the principal purpose of this evaluation. Respondent has failed to demonstrate the relevance of its evaluation in meeting the child's special education needs.

            For all of the foregoing reasons, I find that the hearing officer erred in concluding that the evaluation performed by respondent's staff was appropriate. Consequently, the hearing officer's conclusion that petitioners are not entitled to reimbursement for the cost of the independent evaluation of their daughter must be set aside.

            THE APPLICATION IS SUSTAINED.

           It is ordered that the decision of the impartial hearing officer is hereby annulled, and that the respondent reimburse petitioners in the amount of $1085.00, upon the submission of proof by petitioners to respondent that petitioners have previously paid said amount to the Schneider Children's Hospital.   

Dated: Albany, New York                                                                 _________________________
           July 31, 1990                                                                                HENRY A. FERNANDEZ