The State Education Department
State Review Officer
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 Albion Central School District
Western New York Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel
Harris, Beach and Wilcox, L.L.P., attorneys for respondent, David W. Lippitt, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld respondent's refusal to pay for a portion of the cost of their daughter's independent evaluation by the Developmental Unit of the Genesee Hospital in Rochester, New York, in the Spring of 1996. The appeal must be sustained.
Petitioners' daughter attended respondent's schools for most of elementary school, but she was home schooled by petitioners from November, 1992 though June, 1994. She reportedly received generally satisfactory grades while in respondent's elementary school, but she had difficulty with spelling. The girl was enrolled in the Albion Middle School for the seventh grade during most of the 1994-95 school year. Her grades reportedly went down as the school year progressed, and she was removed from school by petitioners in June, 1995.
In September, 1995, the child returned to the Albion Middle School, where she was enrolled in the eighth grade. By letter dated September 7, 1995, petitioners referred their daughter to respondent's committee on special education (CSE), because they suspected that she might have a learning disability. The girl was evaluated by respondent's school psychologist, who reported that the girl had achieved a verbal IQ score of 98, a performance IQ score of 104, and a full scale IQ score of 101. The standard scores which the child achieved on the Wechsler Individual Achievement Test were consistent with her IQ scores, except for spelling (79), and writing (84). The school psychologist recommended that petitioners' daughter not be classified as a child with a disability, but that she be allowed to use a spellchecker in school, and that she not be penalized for misspellings in her school work.
On October 19, 1995, the CSE recommended that the girl not be classified, but that the two program modifications which the school psychologist had suggested be implemented in the girl's regular education program. The CSE's recommendation was approved by respondent. In a letter dated October 19, 1995, petitioners informed the CSE chairperson that they were dissatisfied with the CSE's evaluation of their child. They requested that the child be independently evaluated, at school district expense, as provided by Federal and State law. The CSE chairperson responded to petitioners in a letter dated October 25, 1995, with a list of board of education approved facilities at which the child could be independently evaluated. In an October 26, 1995 letter to the CSE chairperson, the child's father expressed his preference for having the child evaluated at the Developmental Unit of the Genesee Hospital, which had not appeared on respondent's list of approved independent evaluators. The CSE chairperson thereafter informed petitioners that the CSE had approved the Developmental Unit of the Genesee Hospital to independently evaluate their child. She stated that the CSE had done so with reservation, because petitioners had not clearly expressed the reasons for their dissatisfaction with the CSE's evaluation and recommendation. Alluding to the fact that the Developmental Unit of the Genesee Hospital, would be independently evaluating both this child and her brother, the CSE chairperson advised petitioners that " we expect that Genesee Hospital will be in communication with our CSE throughout the evaluations, and will thoroughly examine [both children's] school records, teacher observations, social history, and both current and past test results conducted by the school district Albion Central School District should be kept informed of all evaluations and recommendations" (Exhibit P-12). On November 9, 1995, the girl's father gave his written consent for respondent to receive from, and release to, the Developmental Unit of the Genesee Hospital educationally pertinent information about the child.
In response to a request from the child's father that the school district affirm its financial responsibility for the independent evaluation of both of his children, the CSE chairperson wrote to the Genesee Hospital on December 12, 1995. She indicated that the Developmental Unit of the Genesee Hospital had been approved to perform both evaluations. Her letter (Exhibit D-16) did not set any limitation upon the scope or cost of the independent evaluations.
On February 7, 1996, respondent received an invoice from the Genesee Hospital for the independent evaluation of this child's brother. One of the four items listed on the invoice was for a "parent consult", which had taken place on January 30, 1996. Respondent paid the Genesee Hospital the entire invoice amount for the independent evaluation of this child's brother. At the hearing in this proceeding, the CSE chairperson testified that the school district had not known that a parent consult would be conducted as part of the independent evaluation of petitioners' children. After receiving the bill for the evaluation of petitioners' son, the CSE chairperson asked the Developmental Unit of the Genesee Hospital to inform the district of any future meetings at which information about this child would be shared.
An educational evaluation of the child was performed at the Developmental Unit on January 24, 1996. Her speech/language evaluation was completed on April 3, 1996. A physical examination, and a "neurodevelopmental" evaluation were performed on May 7, 1996. At a Developmental Unit team meeting which was held on May 14, 1996, the child's evaluation team concluded that petitioners' daughter had an attention deficit disorder associated with anxiety which was secondary to her language processing problems. The team reported that the child had problems with reading decoding, auditory processing, and her memory skills.
A parent consult, i.e., a meeting with petitioners and Dr. Neil McNabb of the Developmental Unit, was scheduled to take place on June 4, 1996. The CSE was informed of this meeting. On May 28, 1996, the CSE chairperson informed petitioners and Dr. McNabb that she would be unable to attend the parent consult, but that Dr. Ada Grabowski, respondent's Assistant Superintendent of Schools, would attend the meeting as respondent's representative. In a letter to the CSE chairperson, which was dated May 31, 1996, the child's father indicated that petitioners did not want a school district representative to be present at their meeting with Dr. McNabb. The CSE chairperson replied on the same day with a letter in which she indicated that the district's purpose was to gather educational information about the child. She also advised petitioners that:
"If it is your continued wish not to have a District representative attend, I will make arrangement with [the Genesee Hospital] to bill you directly for this conference scheduled for June 4, 1996. I will then arrange for Dr. McNabb to attend the next scheduled CSE meeting" (Exhibit D-21).
Petitioners reportedly did not respond to the CSE chairperson's letter . On June 4, 1996, they met with Dr. McNabb at the Genesee Hospital to discuss the results of their daughter's evaluation. When Dr. Grabowski arrived for the meeting with Dr. McNabb, petitioners reiterated their opposition to having any school district representative attend the meeting. Dr. Grabowski withdrew from the meeting, after advising petitioners that the school district would not pay for Dr. McNabb's services during his meeting with them and their daughter on that day. In a letter dated June 5, 1996, respondent's CSE chairperson advised the Developmental Unit that respondent would not be financially responsible for the parent consult which had taken place on the preceding day. The invoice for the child's independent evaluation which the Developmental Unit submitted to respondent did not include a charge for the June 4 parent consult. Respondent paid the Developmental Unit for the invoiced amount of the child's evaluation.
On July 17, 1996, the CSE reconvened to reconsider the results of the child's independent evaluation. A member of the Developmental Unit's evaluation team attended the CSE meeting, at respondent's expense, in the place of Dr. McNabb, who had retired. The CSE recommended that the child be classified as learning disabled, and that she receive speech/language therapy and resource room services during the 1996-97 school year. The CSE's recommendation is not at issue in this proceeding.
The Developmental Unit of the Genesee Hospital billed petitioners for the cost of the parent consult on June 4, 1996. In a letter dated July 17, 1996, the child's father submitted the bill for the parent consult to respondent's Superintendent of Schools. On July 19, 1996, the Superintendent of Schools returned the bill to the child's father, with the explanation that petitioners had previously been advised that respondent would not pay for the cost of the parent consult, if its representative could not attend the meeting with Dr. McNabb. The child's father submitted the bill for the parent consult to respondent on or about August 1, 1996. In a letter dated August 13, 1996, respondent's clerk informed the child's father that respondent had upheld the superintendent's decision not to pay the bill for the parent consult with Dr. McNabb.
By letter dated November 4, 1996, the child's father requested that an impartial hearing be conducted regarding the unpaid bill for the parent consult with Dr. McNabb. The hearing in this proceeding was held on January 27, 1997. The hearing officer rendered his decision on February 28, 1997. He found that petitioners consciously chose to exclude the school district's representative from the meeting with Dr. McNabb, while knowing that if they did so, respondent would not pay for the cost of the meeting. He noted that petitioners' assertion that their daughter needed the opportunity to privately discuss the results of the evaluation with Dr. McNabb was inconsistent with their agreement to share information about the evaluation with respondent's CSE. The hearing officer denied petitioners' request for an order requiring respondent to pay for the cost of the parent consult with Dr. McNabb.
Petitioners contend that respondent was required by Federal and State regulations to pay for the entire cost of their daughter's independent evaluation by the Developmental Unit of the Genesee Hospital. Respondent denies petitioners' contention, and it argues that petitioners' refusal to allow its representative to attend the meeting with Dr. McNabb prevented it from having access to the educational information discussed at the meeting on June 4, 1996.
Federal and State regulations provide that the parents of a child with a disability are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation of the child. 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, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a]  [vi] [a]). Petitioners argue that since respondent did not initiate an impartial hearing to demonstrate the appropriateness of its own evaluation, and it agreed to have the child independently evaluated by the Developmental Unit of the Genesee Hospital, respondent must be held financially responsible for the entire cost of that evaluation, including the parent consult. A board of education may not unduly delay the initiation of a hearing to demonstrate the appropriateness of its own evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-35). In this instance, the child's parents initiated the hearing. That fact would not have precluded respondent from introducing evidence about the appropriateness of the CSE's evaluation of the child (Application of a Child with a Handicapping Condition, Appeal No. 91-40). However, respondent did not defend the adequacy of its evaluation at the hearing in this proceeding, because it had agreed to pay for the child's independent evaluation.
It should be noted that at the hearing in this proceeding Dr. Grabowski, who was not a member of the CSE, acknowledged that Dr. McNabb had offered her a copy of the written evaluation report on June 4, 1996, which Dr. Grabowski apparently did not accept. In any event, respondent does not dispute that it received the written report shortly after the evaluation had been completed. The CSE chairperson acknowledged at the hearing that the member of the Developmental Unit evaluation team who attended the July 17, 1997 CSE meeting had provided useful information about the evaluation to the CSE.
The Federal regulation which accords parents like petitioners the right to obtain an independent evaluation at public expense provides that the term "public expense" means that "the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with §300.301 [which relates to the use of insurance benefits]" (34 CFR 300.503 [ii]). The cost of the parent consult with Dr. McNabb will be at petitioners' expense by virtue of the hearing officer's determination. Consequently, I disagree with the hearing officer's decision. Although I am aware of an informal written opinion to the contrary which respondent received from an employee of the State Education Department, I find that neither Federal nor State law accords school districts the right to have their representatives present during a particular part of a child's independent evaluation. Respondent was aware that a parental consult would be part of this child's independent evaluation before the meeting with Dr. McNabb took place. I note that a discussion of a child's evaluation results with the child's parents is fairly routine practice during student evaluations. Indeed, the record reveals that respondent's school psychologist met with this child's mother to discuss the girl's evaluation results in 1995 (Transcript, page 67). Moreover, the child's father testified that Dr. McNabb had required that the child attend the meeting on June 4, 1996, so that the child would understand the significance of the evaluation results. While the board of education could have established an upper limit for the cost of particular tests (Application of a Child with a Disability, Appeal No. 93-26), it did not set any terms or conditions for the independent evaluation prior to agreeing to have this child evaluated by the Developmental Unit of the Genesee Hospital. Therefore, I find that the board of education was responsible for the cost of the entire evaluation, including the sum of $211 for the parent consult which occurred on June 4, 1996.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;
IT IS FURTHER ORDERED that within fifteen days after the date of this decision the board of education shall pay the sum of $211 to the Developmental Unit of the Genesee Hospital, together with any interest which may have accrued on that obligation.
|Dated:||Albany, New York||__________________________|
|December 18, 1997||FRANK MUŅOZ|