The State Education Department
State Review Officer

No. 97-53

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Roslyn Union Free School District

Appearances:
Margie Best, Esq., attorney for petitioners

Jaspan, Schlesinger, Silverman and Hoffman, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer to adjourn a hearing which was to have been held because petitioners had allegedly refused to consent to having their son evaluated. The hearing officer adjourned the hearing because the child had been evaluated, with petitioners' consent. In a subsequent clarification of his decision to adjourn the matter, the hearing officer informed petitioners' attorney that petitioners could seek further relief through respondent's committee on special education (CSE), and, if necessary, the due process procedure for reviewing CSE recommendations. The appeal must be dismissed.

        On April 30, 1996, petitioners' attorney requested that an impartial hearing be held because of respondent's alleged failure to evaluate or identify their son as a child with a disability. Petitioners also sought a determination by a hearing officer that they were entitled to be reimbursed for their expenditures for their son's tuition at the Elan School, which is an out-of-state private school in which petitioners had unilaterally enrolled the boy for the 1995-96 school year. He reportedly remained in that school, at petitioners' expense, for the 1996-97 school year.

        On May 29, 1996, respondent's attorney replied to petitioners' attorney with a letter indicating that since the boy had not previously been referred to the CSE, respondent would deem petitioners' hearing request to be a referral of the boy to the CSE. The attorneys for the parties corresponded further about where and when the boy would be evaluated. In late July, 1996, petitioners were asked to give their consent to having the child evaluated, as is required by 34 CFR 300.504 (b)(1) and 8 NYCRR 200.5 (b)(1).

        On November 21, 1996, respondent appointed Mr. Richard Thaler to serve as a hearing officer in a hearing which was reportedly initiated by respondent to obtain authorization to evaluate the child without his parents' consent, in accordance with the provisions of 34 CFR 300.504 (b)(3) and 8 NYCRR 200.5 (b)(3). Petitioners reportedly consented to having their son evaluated by a psychiatrist in Maine, where the Elan School is located. The evaluation took place on January 6, 1997. Thereafter, the parties attempted to agree upon an independent psychologist who would further evaluate the child. In April, 1997, the boy's mother, who is divorced from his father, reportedly agreed to have her son evaluated by a particular psychologist in Maine. However, the child's father reportedly declined to consent to the proposed psychological evaluation.

        A hearing was scheduled to be held on May 20, 1997. It did not take place because the boy was evaluated, apparently with his father's approval, by a psychologist on May 8, 1997. Upon being notified by respondent's attorney that the psychological evaluation had been completed, the hearing officer informed the attorneys for the parties that "the ... hearing is adjourned."

        By letter dated June 11, 1997, petitioners' attorney asked the hearing officer to reconsider his determination. In a letter to their attorney, which was dated June 16, 1997, the hearing officer denied petitioners' request, as follows:

"My order to adjourn the hearing stands. Parents may seek further relief through the Roslyn UFSD's (CSE) Committee on Special Education and, if necessary, additional steps may be taken as described in Part 200 of the Regulations of the Commissioner, New York State Department of Education".

        Petitioners request that I find that they have exhausted their first level of administrative remedies against respondent. They also ask that I make additional findings that respondent violated their rights by not evaluating their son, and informing petitioners of their rights under the Individuals with Disabilities Education Act (IDEA) during the 1994-95 school year. They ask me to further find that the boy has been entitled to receive appropriate educational services under IDEA since the 1994-95 school year, and to award them tuition reimbursement for the 1995-96 and 1996-97 school years. Petitioners also request that I find that respondent violated their rights by failing to ensure that a hearing was held promptly after they had requested a hearing in April, 1996.

        Petitioners do not dispute the fact that the boy has been evaluated, with their consent, nor do they offer any reason why the hearing should be reopened with respect to the limited issue which was before the hearing officer, i.e., whether the child should have been evaluated without his parents' consent. The hearing officer indicated that they could obtain further redress after respondent's CSE had carried out its responsibility to evaluate their son and to make a recommendation with respect to his educational program.

        Petitioners are entitled to challenge the appropriateness of whatever educational services the school district offered to provide during the 1995-96 and 1996-97 school years, as well as the services which it provided during the 1994-95 school year. However, Federal and State law prescribe the procedure to be followed for determining whether a student may be classified as a child with a disability, and what, if any, special education services should be provided to the student. That process begins with a referral of the student to the CSE for an evaluation. The CSE must then determine whether the student is eligible to receive special education services pursuant to IDEA, and its State counterpart, Article 89 of the Education Law. The student's parents may then challenge the CSE's recommendation (see Section 4404 [1] of the Education Law).

        The record indicates that respondent's CSE met on June 18, 1997, at which time the CSE recommended that the boy not be identified as a child with a disability. Petitioners have the right to challenge that recommendation by requesting that an impartial hearing be conducted. At that hearing, they may raise their claims with respect to the 1994-95, 1995-96, and 1996-97 school years, and respondent may assert whatever defenses it wishes to make. If petitioners are aggrieved by the hearing officer's determination after that hearing has concluded, they can seek review of the hearing officer's decision. Their request that I grant them the relief which they seek, without a hearing, must be denied.

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
August 13, 1997 ROBERT G. BENTLEY