The State Education Department
State Review Officer

No. 96-88



Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rhinebeck Central School District

Shaw and Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel



        Petitioners appeal from the decision of an impartial hearing officer who found that the parties had reached an agreement about petitioners' request for an independent evaluation, and had terminated the hearing which respondent had initiated. Petitioners contend that the hearing officer erred in concluding that the dispute between the parties with regard to their request for an independent evaluation had been resolved. The appeal must be dismissed.

        Petitioners' ten year old daughter was reportedly referred to respondent's committee on special education (CSE) in the spring of 1995. In May, 1995, the CSE recommended that the girl be classified as learning disabled. It also recommended an educational program to be provided to the child during the 1995-96 school year. However, petitioners chose to unilaterally enroll their daughter in the Kildonan School, a private school. Respondent reportedly provided transportation for the child to the private school.

        On August 15, 1996, the CSE conducted its annual review of the child. Petitioners informed the CSE that they disagreed with their daughter's evaluation by the CSE. They requested that she be independently evaluated at respondent's expense. Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation of their child at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation done, but not at public expense (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]).

        Respondent initiated a hearing, which was held on September 17, 1996. In his opening statement, the child's father stated that:

"We decided late last night that we will pay for the independent evaluation that we are doing right now. We have a complaint that we're not being allowed to have access to the Rhinebeck School District's placement because it's still not ready or is in progress yet" (Transcript, pages 10 & 11).

        The hearing officer questioned the child's father about the independent evaluation which petitioners proposed to have performed. The father indicated that respondent allegedly would not allow the independent evaluator to observe the educational program which its CSE had recommended for the child. Respondent's attorney stated that respondent would allow the independent evaluator to meet with the appropriate members of respondent's staff to discuss the child's proposed program, and that the evaluator could observe a class similar to that which the CSE had recommended. The child's father accepted the offer which respondent's attorney had made. The hearing officer then summarized the discussion which had taken place, as follows:

"So for purposes of the original request for this hearing, it would appear to this Hearing Officer that the outside independent evaluation at the parents' expense will take place; a determination will be made by mutual agreement by both the parents and the School District as to [the child's] placement for '96-97; and the matter before this Hearing officer is then resolved" (Transcript, page 28). The parent and respondent's attorney agreed with the hearing officer's summary, and the hearing was closed.

        In his written decision which was rendered on October 1, 1996, the hearing officer noted that the child's individualized education program (IEP) was not in dispute at the hearing, but he nevertheless indicated that the IEP had been completed on a timely basis, and that there was nothing in the record to refute the appropriateness of that IEP.

        With regard to the issue of the child's independent evaluation, the hearing officer noted that the parent had indicated his willingness to pay for the independent evaluation, but had reserved the right to object to the child's recommended program and/or placement for the 1996-97 school year. He dismissed the proceeding on the ground that petitioners' request for an independent evaluation was immaterial, in view of the parents' representation that they would pay for the evaluation.

        Both parties have raised procedural issues, which I will briefly address before reaching the substantive issue presented in this appeal. Respondent asserts that the petition is untimely, while petitioners argue that respondent's answer is untimely. With regard to the answer, petitioners assert that on December 14, 1996 they received the answer in an envelope postmarked December 13, 1996. Since the petition was served upon respondent on December 3, 1996, the answer would be timely (8 NYCRR 179.5). However, the answer was allegedly verified by respondent's attorney on December 16, 1996. In a letter dated December 31, 1996, respondent's attorney asserts that he signed the verification on December 13, 1996 but inadvertently failed to note that it was dated December 16, 1996. I find that petitioners' objection to the answer is without merit.

        State regulation requires that the parents of a child with a disability serve a copy of their petition to review a hearing officer's decision upon the board of education within 40 days after the parent has received the hearing officer's decision (8 NYCRR 279.2 [b]). Petitioners acknowledge that they received a copy of the hearing officer's decision on October 5, 1996, and that they did not serve their petition until December 3, 1996. However, they ask that their delay be excused upon the ground that respondent allegedly failed to provide them with a copy of the hearing transcript, until approximately 30 days before they served their petition. Although State regulation requires that a written or electronic verbatim record of a hearing be made available to the parties (8 NYCRR 200.5 [c][2]), it does not follow that petitioners' time in which to bring this appeal should begin when they received the transcript. Nevertheless, there is no indication in the record that respondent has been harmed by petitioners' delay. I will therefore excuse their delay.

        Petitioners ask that respondent be ordered to pay for an independent evaluation of their daughter because respondent failed to present any evidence at the hearing to establish that its evaluation was appropriate. They contend that they have not withdrawn their request that respondent pay for the independent evaluation, even though the child's father indicated to the hearing officer that petitioners would initially pay for the evaluation.

        I find that petitioners' argument is untenable. Petitioners' request for an independent evaluation at respondent's expense was the sole purpose for which the hearing was held. The child's father clearly indicated that petitioners would assume financial responsibility for the evaluation. When asked by the hearing officer if petitioners would be seeking reimbursement for the independent evaluation, the child's father replied:

"I am sure we will be. How, I don't know. But we are not prepared to, right now -- we're willing to pay for that evaluation. We decided last night we would pay for it because of the other expense and cost and duress that we're going through with the other hearing" (Transcript, page 13).

        As noted above, petitioners are entitled to obtain an evaluation of the child at respondent's expense, subject to respondent's right to initiate a hearing to establish the appropriateness of its own evaluation. When the child's father indicated that petitioners were not seeking payment by respondent, the hearing officer correctly concluded, with the assent of both parties, that there was no purpose in continuing with the hearing. If petitioners do at some future time request that respondent pay for the child's evaluation, respondent must be afforded the opportunity to demonstrate the appropriateness of its evaluation of the child.

        Petitioners also challenge the hearing officer's purported findings of fact with respect to the appropriateness of their child's IEP for the 1996-97 school year. The issue of the child's IEP was not before the hearing officer, and no evidence was presented to the hearing officer with respect to the child's IEP. I agree with petitioners that the hearing officer had no basis in fact, or authority in law, to make findings with respect to the child's IEP. The purported findings are at best dictum, and are certainly not binding upon the parties.






Dated: Albany, New York __________________________
March 11, 1997 ROBERT G. BENTLEY