The State Education Department
State Review Officer

No. 96-61



Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District

Michael K. Lambert, Esq., attorney for respondent



        Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claim that respondent's committee on special education (CSE) had failed to recommend whether petitioner's daughter should be classified as a child with a disability within the requisite period of time after petitioner had reportedly referred the child to the CSE. The hearing officer also dismissed petitioner's claim that respondent had failed to keep the reported referral confidential, as required by Federal and State regulation (34 CFR 300.572; 8 NYCRR 200.5 [f]). The appeal must be dismissed.

        Petitioner's daughter is seven years old, and had not been identified as a child with a disability at the time this proceeding was commenced. The child entered respondent's kindergarten in September, 1994. During the 1995-96 school year, petitioner's daughter was enrolled in the first grade in respondent's Vassar Road Elementary School. At the request of the child's first grade teacher and her reading teacher, a parent-teacher conference was held on the morning of March 29, 1996. The child's teachers were reportedly concerned about the child's academic progress. I note that at the hearing in this proceeding, the child's first grade teacher testified that petitioner's child was doing very well in her class, but that the child's reading teacher had found that the girl had " ... a little bit of difficulty composing sentences and with ... some of her reading abilities ... " (Transcript, page 165).

        The child's teachers, the Principal of the Vassar Road Elementary School, and the child's parents apparently reached a consensus that the child should be referred to the CSE for an evaluation. The first grade teacher testified that petitioner indicated to the other participants in the parent-teacher conference that she was familiar with the process of referring a child to the CSE, and that she would make the referral to the CSE. Petitioner testified that she agreed to write a letter of referral, and that she advised the others present at the conference that she would indicate in her letter that the referral was being made by a consensus of all of the parent-teacher conference participants.

        At or about noon on March 29, 1996, petitioner entered an office shared by Ms. Susan Versace, who is the secretary for respondent's Coordinator of Special Education (Ms. Elizabeth Harrel), and by Ms. Johanna Hudak, the co-chairperson of respondent's CSE. Petitioner testified that she handed two copies of a written referral of the child to the CSE to Ms. Versace, and that Ms. Versace date stamped both copies. She further testified that Ms. Versace returned one copy of the referral to petitioner. In support of her testimony, petitioner introduced into evidence a letter dated March 29, 1996 which was addressed to respondent's Coordinator of Special Education, and which referred the child to the CSE for an evaluation. In the upper left hand corner, the letter is date stamped as "Received March 29, 1996 Special Education."

        Ms. Versace acknowledged in her testimony that the date stamp on petitioner's letter appeared to have been made from the stamping device which was kept on her desk. However, she denied that petitioner had presented the letter to her, or had asked her to date stamp any document. Ms. Versace testified that petitioner had a paper in her hand, while she talked to Ms. Hudak, but Ms. Versace asserted that she never saw the contents of that paper, and she testified that she had not seen petitioner's letter of referral. She explained that if she had received a referral, she would have date stamped it, and given it to Ms. Harrel. Ms. Hudak testified that she had a brief conversation with petitioner, during which petitioner waved a paper in her hand, and indicated that school personnel wanted her daughter to be tested. She further testified that she had not seen petitioner hand any document to Ms. Versace, or observed Ms. Versace date stamp any document.

        Petitioner testified that after Ms. Versace had date stamped petitioner's letter of referral, Ms. Versace left the room to summon respondent's Assistant Coordinator of Special Education, Ms. Christine Chambers-Sexton, who would discuss future CSE meeting dates with petitioner with regard to one of petitioner's other children. Ms. Chambers-Sexton testified that she and petitioner had a brief discussion near Ms. Versace's desk. She further testified that shortly before the conversation ended, petitioner told her that she had just referred her daughter to the CSE. Ms. Chambers-Sexton testified that she had not seen petitioner's letter of referral, prior to the hearing in this proceeding, and she confirmed Ms. Versace's testimony that a written referral would have been date stamped by Ms. Versace, and given to Ms. Harrel.

        Respondent's Coordinator of Special Education, Ms. Elizabeth Harrel, testified that she had not seen petitioner's letter of referral prior to the hearing. She also testified that the Principal of the Vassar Road Elementary School had telephoned her after the parent-teacher conference on March 29, 1996 to advise her that petitioner would be referring her daughter to the CSE. Ms. Harrel asserted that at the beginning of May, 1996, she discovered that no written referral had been received. Ms. Harrel then contacted one of respondent's school psychologists, and asked her to call petitioner to obtain her consent to evaluate the child. Ms. Judith Roenick, the school psychologist, testified that she spoke with petitioner on May 2, 1996, and that she was prepared to begin the child's evaluation on May 3, 1996. However, petitioner filed a request for an impartial hearing on May 3, 1996, and did not consent to the child's evaluation until May 22, 1996. On May 3, 1996, petitioner did accept a "30-day packet", i.e. a consent to evaluation form and a social history form, from the Principal of the Vassar Road Elementary School.

        The hearing in this proceeding began on May 22, 1996. Petitioner identified the issue to be addressed as whether respondent's CSE had failed to evaluate her daughter and make its recommendation within 40 days1 after receipt of petitioner's referral, as required by 8 NYCRR 200.4 (c). She also asked the hearing officer to find that respondent had failed to maintain the confidentiality of her daughter's referral because it had misplaced the referral. Petitioner asserted that respondent's alleged failure to promptly evaluate and provide services to her daughter violated the child's rights under the Individuals with Disabilities Education Act (20 USC 1400 et seq), and Section 504 of the Rehabilitation Act of 1973 (29 USC 794). The hearing in this proceeding concluded on May 31, 1996.

        The hearing officer rendered her decision on July 9, 1996. She assumed that if petitioner had delivered her referral letter to Ms. Versace on March 29, 1996, respondent had not met its timeline, i.e., that the evaluation and initial CSE recommendation could not have been completed within the regulatory time period. However, the hearing officer did not determine whether petitioner's referral letter had been given to Ms. Versace on that date. Instead, she asserted her belief that no intentional wrongdoing had taken place in the handling of the alleged referral. The hearing officer rejected petitioner's claim that respondent had failed to provide her with notice of her due process rights in a timely manner (cf. 8 NYCRR 200.4 [a][6]), as well as her contention that the Principal of the Vassar Road Elementary School had an obligation to obtain petitioner's consent to an evaluation within 30 days after the parent-teacher conference which was held on March 29, 1996. She also dismissed petitioner's claim that respondent had violated its "child find" obligation (34 CFR 300.220), i.e., its obligation to identify, locate and evaluate all children who are in need of special education. With regard to petitioner's claim that respondent had failed to preserve the confidentiality of her daughter's records, the hearing officer found that there was no evidence in the record of any disclosure of petitioner's letter of March 29, 1996 to anyone. She directed the CSE to meet during either July or August, 1996, to ensure that an appropriate educational program would be available to the child during the 1996-97 school year.

        Petitioner contends that the hearing officer failed to rule upon her contention that the Principal of the Vassar Road Elementary School violated his obligation to immediately forward to the CSE chairperson the referral which the Principal had received (See 8 NYCRR 200.4 [a][4]). I find that petitioner's contention is completely without merit. A referral must be in writing (8 NYCRR 200.4 [a]). While petitioner appears to suggest that the Principal's awareness that petitioner was going to make a referral should be equated with the Principal's receipt of a written referral, I find that there is no basis in fact or law for petitioner's position. Her reliance upon the decision in Application of a Child with a Disability, Appeal No. 96-35, is misplaced because that appeal involved a significantly different situation.

        She next contends that respondent violated the provisions of 8 NYCRR 200.4 (a)(5), which require a CSE chairperson who has received a written referral to immediately forward a copy of the referral to the building administrator of the school which the child attends. Petitioner also claims that various other regulatory provisions relating to the procedure to be employed when a written referral has been received were not followed, (see, for example, 8 NYCRR 200.4 [b][1][ii], [iii] and [iv], 8 NYCRR 200.4 [b][3], 8 NYCRR 200.4 [c][3], and 8 NYCRR 200.5 [a]). The central factual issue with respect to each of petitioner's contentions is whether respondent had received petitioner's written referral on March 29, 1996, or at some subsequent date.

        As noted above, the witnesses who testified at the hearing offered diametrically opposed accounts of petitioner's alleged referral of her daughter to the CSE. There does not appear to be any dispute that the date stamp which appears upon petitioner's copy of her referral (Exhibit A) is genuine. Under the circumstances, I find that it was incumbent upon respondent to explain how petitioner could have obtained a date stamped copy of her March 29, 1996 referral letter in some manner other than as described by petitioner in her testimony. I further find that respondent has failed to do so. However, I agree with the hearing officer's finding that there is no evidence of any intentional wrongdoing with regard to the receipt of petitioner's March 29, 1996 letter. The record reveals that respondent's Coordinator of Special Education made a good faith attempt to follow-up on the advice she had received from the Principal that petitioner intended to refer her child to the CSE, and that she and respondent's staff moved promptly to rectify the situation when the Coordinator was apprised of the facts. I also find that the record does not support petitioner's assertion that respondent violated the time limit within which the CSE must make its initial recommendation. The term "days" in Part 200 of the Regulations of the Commissioner of Education means school days (8 NYCRR 200.1 [m]). Respondent has offered proof that the regulatory time period had not been exceeded when petitioner commenced this proceeding. The record reveals that petitioner was well aware of her rights, and that she chose not to grant her consent for the child's evaluation until almost 20 days after she was given the consent form.

        I have also considered petitioner's claim that respondent violated the confidentiality requirements of Federal and State regulations because it must have misplaced her referral letter. At the hearing, petitioner conceded that she had no knowledge of the letter having been disclosed to any third party. She has not provided any evidence of disclosure of the document. I agree with the hearing officer's determination of petitioner's claim, which is entirely speculative. I also find that petitioner's other claims, including respondent's alleged failure to perform its child find duties, are not supported by the record.

        While I am unable to know all aspects of this child's educational situation, as a reviewer of the formal record in this appeal, I am struck by the impression that the interests of the child may have been subordinated to procedural disputes. The statute and regulations exist for the purpose of ensuring children a free and appropriate public education. It is evident from the transcript that there has been a serious breakdown in the relationship between the parties. It is essential that they work together for the child's benefit, instead of finding fault with each other's actions and motives.





Dated: Albany, New York __________________________
December 11, 1996    ROBERT G. BENTLEY



1     8 NYCRR 200.4 (c) provides that:

"...For a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education within 30 days of the date of receipt of consent, or within 40 days of the date of receipt of a referral, whichever period shall end earlier..."