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The State Education Department
State Review Officer

No. 97-80

 

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 Shenendehowa Central School District

Appearances:
Ferrara, Fiorenza, Larrison, Barrett and Reitz, P.C., attorney for respondent, Susan T. Johns, Esq., of counsel

DECISION

        Petitioners appeal from an impartial hearing officer's decision which denied petitioners' claim that respondent was required to pay for the cost of their son's private school tuition during the 1996-97 school year and the cost of the private evaluations which petitioners were in the process of obtaining for the boy. They also appeal from the hearing officer's determination that respondent had not discriminated against petitioners' son by not allowing him to be a member of respondent's interscholastic bowling team. The appeal must be sustained in part.

        Petitioners' son is sixteen years old. There is very little information in the record about his early childhood and education. He reportedly entered the first grade in respondent's schools in 1987. The boy reportedly did well academically and was in respondent's gifted and talented student program while in elementary school (Exhibit SD-8). While in the sixth grade, the boy was reportedly absent from school because of illness on a number of occasions. He reportedly became apprehensive about going to school and making up the school work which he had missed.

        The boy missed the first week of school in the 1993-94 school year because of a virus, and he reportedly became increasingly fearful of attending school and being apart from his mother. He was in the seventh grade during the 1993-94 school year. In September, 1993, certain tests were reportedly administered to the boy by one of respondent's school psychologists, who apparently believed that petitioners had consented to having their son evaluated. The school psychologist did not complete her evaluation. When respondent sought permission to evaluate the boy in October, 1993, his mother did not consent to having him evaluated (Exhibit SD-23). In January, 1994, petitioners' son was seen by a physician in New York City because of his increased anxiety and alleged school phobia. In a letter dated January 26, 1994, the physician indicated that the boy had reportedly developed motor and vocal tics during the preceding summer, and he appeared to be obsessed about his mother being injured. The physician opined that petitioners' son was unable to return to school on a full-time basis, and she recommended that the boy be tutored at home so that he would not become anxious about falling behind academically. She indicated that he would be medicated and receive therapy for his anxiety. The boy stopped attending respondent's schools in December, 1993. Petitioners reportedly paid to have the boy privately tutored for the remainder of the 1993-94 school year.

        In March, 1994, petitioners were notified that their son had been referred to respondent's committee on special education (CSE) for an evaluation to ascertain if he was eligible for classification as a child with a disability, and they were asked to consent to having the evaluation performed, as required by 8 NYCRR 200.5 (a)(2). In their response to this request for consent, petitioners asserted that they had previously provided information about their son, and that respondent had intentionally denied the boy access to an appropriate education. They also indicated that "… given our present program requests, it is our position that the district is already in possession of enough information to begin to provide services" (Exhibit SD-25). Respondent did not initiate a hearing to obtain authorization to evaluate the boy without his parents' consent. Petitioners were subsequently notified that their son would have to repeat the seventh grade, apparently because of his extensive absences from school.

        In a letter dated August 24, 1994, the physician who had seen the boy in January, 1994, reported that she now had sufficient information to diagnose the boy as having Tourette's Syndrome (Exhibit P-2). She further reported that he continued to have a high level of anxiety and manifested obsessive-compulsive symptoms. The physician recommended that the child be classified as other health impaired (see 8 NYCRR 200.1 [mm][10]), and that he be placed in "relatively small classes though not in special education classes as defined by New York State". She recommended that the boy have access to a computer, be assisted in note taking, and have resource room help to organize his assignments.

        In October, 1994, the CSE classified the child as other health impaired, primarily on the basis of his physician's recommendation. The CSE apparently did not conduct a full evaluation as required by 8 NYCRR 200.4 (b). In any event, it did not recommend a specific educational program until December, 1994. At that time, the CSE recommended that the boy receive 200 minutes per week of resource room services (Exhibit P-68). However, petitioners had enrolled their son as of September, 1994 in the Springhill/Waldorf School (Springhill) in Saratoga Springs, New York, and they did not accept the CSE's recommendation.

        On or about January 3, 1995, petitioners asked for an impartial hearing to review the CSE's recommendation. The hearing began on November 14, 1995, and it ended on January 12, 1996. The boy continued to attend Springhill, at his parents' expense, during the 1995-96 school year. In a decision which was rendered on March 19, 1996, the hearing officer held that respondent had not provided a free appropriate public education to the boy during the 1993-94 school year. She found that the individualized education program (IEP) which the CSE had prepared for the boy in December, 1994 and which would have applied to parts of the 1994-95 and 1995-96 school years was inappropriate. The hearing officer further found that it would be inappropriate to remove the boy from Springhill. She therefore directed respondent to reimburse petitioners for the cost of the boy's tuition at Springhill for the 1994-95 and 1995-96 school years. She also ordered respondent to reimburse petitioners for one-half of the cost of their son's evaluation by the New York City physician in 1994.

        One of the issues which was in dispute in that proceeding was whether petitioners' son could participate in interscholastic athletics as a member of respondent's bowling team, notwithstanding the fact that he was not enrolled as a student in respondent's schools. The relevant portion of the Regulations of the Commissioner of Education provides that:

"A pupil shall be eligible for interschool competition in a sport during a semester, provided that he is a bona fide student, enrolled during the first 15 school days of such semester, is registered in the equivalent of three regular courses, is meeting the physical education requirement, and has been in regular attendance 80 percent of the school time, bona fide absence caused by personal illness excepted" (8 NYCRR 135.4 [c][7][ii][b][2]).

        The hearing officer found that it "was not her role to overrule any regulation of the Commissioner of Education", and held that petitioners' son should not participate in respondent's interscholastic athletic program until such time as he was a bona fide student in the district. The hearing officer remanded the matter to respondent's CSE to update the boy's IEP and to develop a specific transition plan which would enable the boy to re-enter respondent's schools in the 1996-97 school year. Neither party appealed from the hearing officer's decision.

        To prepare for the next CSE meeting which was held on June 11, 1996, respondent's CSE chairperson wrote to petitioners on May 21, 1996. The chairperson indicated that two of respondent's school psychologists would observe petitioners' son in Springhill and talk to his teachers. She also asked petitioners to allow the school psychologists to speak to their son's private psychologist and enclosed a written consent form (SD-6). Petitioners denied receiving this communication. The school psychologists did observe the boy at Springhill. They also attended the CSE meeting which was held on June 11, 1996. The boy's teacher at Springhill participated by telephone in the meeting. The two school psychologists recommended that petitioners' son remain in Springhill for the next school year because they were concerned about disrupting his attendance there (Transcript, pages 125 and 185).

        At the hearing in this proceeding, the CSE chairperson testified that the CSE agreed to recommend that the boy stay at Springhill for the 1996-97 school year, although the private school did not provide special education and had not been approved by the State Education Department as a school in which a board of education could place a child with a disability (see Section 4404 [2][b][2] of the Education Law). The CSE's case summary and report to respondent (Exhibit SD-8) indicated that the CSE had recommended that the boy continue to be classified as other health impaired, and that he be enrolled in the 10th grade in Springhill for the 1996-97 school year. However, the IEP which the CSE prepared for the boy (Exhibit SD-7) did not identify a specific placement for the boy. The IEP indicated that an out-of-district placement was recommended. It also indicated that he would pursue a "10th grade program with modifications". The boy's IEP did not identify any special education or related service which he was to receive, but did provide that he would receive special transportation in the afternoon. The IEP did indicate that testing modifications of flexible scheduling, extended time limits, and having test directions clarified should be used when he was tested in school. There were only two annual goals on the boy's IEP: that he would pass his 10th grade courses, and that he would "continue to learn ways to reduce his anxiety". There were no short-term instructional objectives for the first goal, and three objectives for the second goal. One of those objectives was that the boy would " … continue to pursue his interest in sports".

        On or about July 8, 1996, petitioners were advised that respondent had approved the CSE's recommendation that their son be placed in Springhill for the 1996-97 school year (Exhibit SD-9). When the CSE met in June, 1996, it was not certain whether Springhill would offer instruction at the 10th grade level during the 1996-97 school year. In a letter dated September 4, 1996, petitioners requested that the CSE reconvene immediately because they had just learned that Springhill would not have a high school program during the 1996-97 school year (Exhibit SD-10). They also indicated that they and others were in the process of attempting to establish a private high school, and suggested that the future school's teachers might be available to tutor their son in the interim. I note that the private school was provisionally chartered as the Adirondack School by the Board of Regents in March, 1997. A charter is a form of incorporation, and it is not to be confused with the registration process by which high schools are approved by the Regents for the purpose of obtaining the right to grant high school diplomas (8 NYCRR 100.2 [p]).

        The CSE met with petitioners on September 30, 1996. Petitioners indicated that their son was being educated with five other children in a facility owned by a church in Schuylerville, New York, and they opined that the instruction which he was receiving was appropriate for him. The CSE discussed a recommendation by the two school psychologists that petitioners' son be enrolled in a BOCES skills development class while attending high school in the Schalmont Central School District. The skills development class was taught by a special education teacher, with the assistance of two aides, and was limited to no more than 12 students. However, it was apparently intended to function more like a resource room than a special education class, by providing supplemental instruction to children who were enrolled in mainstream classes for most of the school day. Although most of the members of the CSE were in favor of the skills development class, the parent member of the CSE had reservations about recommending that educational placement until the boy had an opportunity to visit the class. However, petitioners and their son reportedly indicated to the CSE that they would not visit the skills development class. The CSE's case summary and report to respondent indicated that the CSE had been unable to reach a consensus with petitioners about the boy's program and placement (Exhibit SD-13). However, in a notice of recommendation to petitioners which was dated October 7, 1996, the CSE chairperson indicated that the CSE had recommended that their son be placed in the BOCES skills development class (Exhibit SD-14). I note that State regulation requires a CSE to embody its recommendation in the form of an IEP (8 NYCRR 200.4 [c][2]), and that respondent conceded at the hearing in this proceeding that no IEP had been completed for the boy. In any event, petitioners did not immediately challenge the CSE's failure to complete an IEP, or its purported recommendation of the BOCES skills development class.

        In a letter dated October 25, 1996, petitioners informed the CSE chairperson that their son intended to try out for respondent's high school bowling team. They asked the chairperson to advise respondent's school nurse that the boy's IEP allowed him to try out for the school district teams, even though he did not attend the district's schools. In early November, 1996, the CSE chairperson informed petitioners that the IEP to which they had referred in their letter had not been implemented because petitioners had unilaterally placed their son in a private school. However, the boy was, in fact, allowed to try out for the bowling team pending a determination of his eligibility to participate in that activity. Petitioners instituted a proceeding against respondent in New York State Supreme Court for the County of Saratoga for the purpose of preventing respondent from not allowing their son to participate on the high school bowling team. The matter was orally argued in early December, 1996, when the Court reportedly declined to grant petitioners the relief which they sought. In its order dated April 14, 1997, the Court dismissed the lawsuit on the ground that the boy was not enrolled in respondent's schools.

        In a letter dated December 10, 1996, petitioners asked respondent's president to arrange for an impartial hearing to address their son's eligibility for an IEP and his entitlement to participate in interscholastic athletics. They also asserted that respondent was required to allow the boy to remain on the bowling team pursuant to the "pendency" provisions of Federal and State law (20 USC 1415 [j]; Section 4404 [4] of the Education Law. Respondent did not appoint a hearing officer because its then attorney had reportedly opined that no hearing was required with regard to the issue of the boy's eligibility to participate in interscholastic athletics. Petitioners complained to the State Education Department about respondent's failure to hold a hearing. In April, 1997, they were advised by a representative of the Department that she had informed respondent that a hearing officer should be appointed unless petitioners withdrew their previous request for a hearing. The hearing officer was appointed by respondent on or about May 13, 1997.

        The hearing began June 16, 1997. Petitioners asked the hearing officer to find that the BOCES Skills Development class which the CSE had reportedly recommended on September 30, 1996 was inappropriate for their son. They also sought a determination that the Adirondack School was the boy's pendency placement. Petitioners asked the hearing officer to find that their son should have had access to respondent's sports teams because his June, 1996 IEP had referred to pursuing his interest in sports. They also asked him to find that they were entitled to an independent evaluation of their son because respondent had failed to re-evaluate the boy in a timely manner. Petitioners requested that the hearing officer find that they have been denied due process because of respondent's failure to hold a hearing in response to their December, 1996 request. They also asked to be awarded reimbursement for all fees in relation to the hearing.

        The hearing continued on July 17 and 21, 1997 and it concluded on July 25, 1997. In his decision which was rendered on September 24, 1997, the hearing officer declined to find that the BOCES Skills Development class was inappropriate to meet the boy's needs. He rejected petitioners' contention that the Adirondack School had become the boy's pendency placement because respondent had never agreed to place the child in that school. He therefore denied their request for an award of tuition reimbursement. With regard to the boy's eligibility to participate on respondent's sports teams, the hearing officer found that respondent's refusal to allow him to participate was based upon a bona fide student requirement in the Regulations of the Commissioner of Education which the State Supreme Court had also upheld. He noted that it was not within the purview of an impartial hearing to review the decisions of the Supreme Court. The hearing officer also credited the testimony by one of the school psychologists that the CSE had not formally recommended that the boy be placed on an interscholastic team. Petitioners' request for an order requiring respondent to pay for an independent evaluation of the child was denied by the hearing officer, who found that respondent was entitled as a matter of law to conduct its own evaluation. He noted that petitioners could have an independent evaluation at public expense if they disagreed with the results of respondent's evaluation of their son. The hearing officer ordered respondent's CSE to proceed with an individual evaluation of the boy, and to thereafter meet in a timely manner to determine an appropriate educational program for him.

        Petitioners have raised a number of issues in their petition. Among other things, they ask that I make findings about respondent's policies and procedures with respect to both the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (29 USC 794). However, petitioners' general complaints about respondent's practices and procedures with regard to IDEA should be addressed to the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities for resolution pursuant to the provision of 34 CFR 300.660-662 (Application of a Child Suspected of Having a Disability, Appeal No. 95-23). To the extent that petitioners seek a review of respondent's Section 504 policies and practices, as well as the hearing officer's determination that respondent had not discriminated against their son on the basis of his disability, I find that I lack jurisdiction in the matter (Application of a Child with a Disability, Appeal No. 96-37). Although respondent is required to have certain policies and practices in place to implement the provisions of Section 504, and to provide the opportunity for an impartial hearing and subsequent review (34 CFR 104.36), that review does not include review by the State Review Officer, whose jurisdiction is limited to matters arising under IDEA or its State counterpart, Article 89 of the Education Law.

        Before addressing the substantive issues which petitioners have raised with respect to the hearing officer's findings, I will consider their claim of procedural unfairness in the way the hearing was conducted. Petitioners assert that respondent failed to comply with the Regulations of the Commissioner of Education in maintaining a rotational list of impartial hearing officers and appointing hearing officers from that list (see 8 NYCRR 200.2 [c][1]). I must first note that on the first day of the hearing, petitioners indicated that they had no questions relating to respondent's appointment of the hearing officer in this proceeding (June 16, 1997 Transcript, pages 179-180). They did not subsequently raise the issue at the hearing, and they do not offer any basis for me to find that the hearing officer's appointment was improper. Petitioners contend that respondent's list of hearing officers does not include all of the certified hearing officers who have indicated to the State Education Department their willingness to hold hearings in Saratoga County. If so, that is a matter which is better addressed pursuant to the general complaint procedure which I referred to previously.

        Petitioners challenge the hearing officer's impartiality because of certain evidentiary rulings which he made during the course of the hearing. The record reveals that on the first day of the hearing on June 16, 1997, petitioners alleged that they had been denied access to their son's educational records (cf. 34 CFR 300.562 [a]). Respondent's attorney asked for a clarification of the records which petitioners sought. Although respondent's attorney agreed to provide petitioners with access to most of the information which they wanted, the parties could not agree upon whether petitioners were entitled to see the test protocols which respondent's then school psychologist had used in an uncompleted evaluation of petitioners' son in 1993. The hearing officer denied petitioners access to the test protocols on the grounds that they were already aware of the outcome of the school psychologist's testing of their son. The Office of Special Education Programs of the U.S. Department of Education has opined that test protocols which do not contain personally identifiable information are not educational records which must be made available to the parents of a child with a disability (20 IDELR 1159). I have no basis for determining on the record which is before me whether the protocols which petitioners sought to examine have personally identifiable information on them. While I do not find that the hearing officer's ruling is evidence of any bias, I will caution respondent to provide access to test protocols, if they contain personally identifiable information.

        I have also considered petitioners' contention that the hearing officer should have issued subpoenas to compel the testimony of certain school district witnesses and employees. The two individuals to whom the petition refers were respondent's Section 504 officer and respondent's president. Ultimately, the Section 504 officer testified, but respondent's president did not. A hearing officer must assist parents who are not represented by an attorney with their requests for subpoenas (Application of a Child with a Handicapping Condition, Appeal No. 92-8). However, a hearing officer may require the parents to show the relevance of the testimony of the witness to be subpoenaed (Application of a Child with a Disability, Appeal No. 97-11). Although petitioners corresponded with respondent's president about their son's desire to play on respondent's bowling team, I find that the president's testimony was not necessary to determine the boy's right, if any, to participate on the team. Therefore, I find that the hearing officer was well within his discretion when he declined to permit petitioners to compel the president's testimony.

        I have also considered the hearing officer's rulings with respect to the admissibility of documentary and testimonial evidence during the hearing. While I can appreciate petitioners' frustration with the rulings which compelled them to present their case in accordance with the certain rules of evidence, I find that there is no basis in the record for concluding that the hearing officer was biased against them.

        Petitioners contend that the hearing officer improperly shifted the burden of proof regarding the appropriateness of the BOCES class in the Schalmont district from respondent to them. I agree that the hearing officer's statement that evidence was not presented to fortify petitioners' position that the BOCES program was inappropriate could be construed as shifting the burden of proof to petitioners. In any event, the board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). In this instance, there is no dispute that the CSE failed to prepare an IEP for the boy to implement the CSE's purported recommendation on September 30, 1996 that the boy be enrolled in the BOCES class. Absent an IEP for the boy, the hearing officer could not find, as he appears to have done by implication, that the BOCES class was an appropriate placement for the boy (Application of a Child with a Disability, Appeal No. 94-13).

        Normally when a school district has failed to offer an appropriate educational placement for a child and the child's parents have placed the child in a private school, the parents seek an order requiring the school district to pay for the child's tuition in the private school pursuant to the Supreme Court decisions in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). To obtain an award of tuition reimbursement, petitioners would be required to prove the appropriateness of the services which they obtained for their son at the Adirondack School during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34). However, at the hearing on July 25, 1997, the child's mother told the hearing officer that " … we're not asking you to determine that Adirondack was appropriate. We're only asking you to determine that it was considered a stay put [pendency] provision" (July 25, 1997 Transcript, page 369). In this appeal, petitioners contend that their claim for tuition is based upon two theories: first, that it would be a form of compensatory education for respondent's denial of a free appropriate public education to their son during the 1996-97 school year; and second, that the Adirondack School was the boy's pendency placement. I find that petitioners' first theory is in fact the rationale for an award of tuition reimbursement under Burlington. Accordingly, I find that they would be required to demonstrate the appropriateness of the services provided by the Adirondack School to obtain an award of tuition reimbursement. Although the boy's mother did briefly describe the Adirondack School in her testimony, I am constrained to find that there is insufficient evidence in the record before me to establish what were the specific services which the private school provided and how those services addressed the boy's special educational needs.

        Pursuant to Federal and State law, a child with a disability must be maintained in his or her current educational placement during the pendency of any due process proceeding, unless the child's parents and the school district agree upon another placement (20 USC 1415 [j]; Section 4404 [4] of the Education Law. The term "then current education placement" means the child's last mutually agreed upon placement at the moment when a due process proceeding is commenced. Implicit in the concept of a pendency placement is the requirement that a school district must continue to finance an educational placement which it made, and to which the child's parents agreed, prior to the parents' request for a hearing. The U.S. Office of Education has opined that a child's then current placement would " … generally be taken to mean current special education and related services provided in accordance with a child's most recent individualized education program (IEP)" (EHLR 21:48), (see also Zvi D. v. Ambach, 694 F. 2d 904 [2d Cir., 1982]; Drinker v. Colonial School District, 78 F. 3d 859 [3d Cir., 1996]; Gregory K. v. Longview School District, 811 F. 2d 1307 [9th Cir., 1987] ).

        In this instance, the boy's last IEP which both parties accepted was the IEP which was prepared at the June 11, 1996 CSE meeting. That IEP provided that petitioners' son would be placed "out-of-district in a 10th grade program with modifications", but it did not specify where he would be placed. However, petitioners and respondent's witnesses testified that it was their mutual expectation that the boy would remain at Springhill for the 1996-97 school year. When that placement became unavailable because Springhill was not going to have a 10th grade class during the 1996-97 school year, petitioners unilaterally placed the boy in what became the Adirondack School. However, respondent did not agree to that placement, nor could it have placed the boy in a facility which has not been approved by the State Education Department to provide instruction to children with disabilities. Although petitioners assert that the educational program at the Adirondack School was comparable to that of Springhill, I am unable to determine on the record before me that the Adirondack School provided the 10th grade program with modifications, as called for by the June 11, 1996 IEP. Therefore, I find that the Adirondack School was not the child's pendency placement.

        Petitioners also challenge the hearing officer's determination that respondent had violated neither Part 200 of the Regulations of the Commissioner of Education nor Section 504 of the Rehabilitation Act of 1993 by not permitting their son to participate on the Shenendehowa bowling team during the 1996-97 school year. As noted above, I cannot review the hearing officer's determination with regard to Section 504. I will review his determination with respect to the Part 200 Regulations which are the State counterpart to the Federal regulations implementing IDEA, notwithstanding the fact that the 1996-97 school year has ended, because the record demonstrates that this issue is capable of repetition.

        When the issue of the boy's participation on the bowling team first arose during the 1995-96 school year, respondent was advised by an attorney in the Office of Counsel of the State Education Department that a student athlete must meet the eligibility requirement in 8 NYCRR 135.4 (6)(7)(ii)(b)(2), unless the student's IEP "specifically includes as part of his or her program participation in interscholastic athletics" (Exhibit SD-5). This boy's participation in interscholastic athletics was discussed at the CSE meeting on June 11, 1996. The CSE chairperson testified that the CSE did not specifically recommend that the boy participate on an interscholastic athletic team. A school psychologist who was also a member of the CSE confirmed the chairperson's testimony. However, the boy, his parents, and their lay advocate each testified that respondent's then attorney, who was at the CSE meeting, assured them that the IEP's short-term instructional objective relating to sports which was written at the CSE meeting would allow the boy to play on Shenendehowa teams, even though he was not enrolled in the Shenendehowa schools. Respondent did not rebut their testimony. Instead, it took the position that the IEP which was prepared at the June 11, 1996 CSE meeting had become inoperative because the boy had been enrolled by his parents in the Adirondack School. I do not agree with respondent's position. Although the CSE was required to revise its IEP when petitioners chose to place elsewhere, it does not follow that the IEP which the CSE failed to revise became inoperative.

        I have considered what effect, if any, the order of the New York State Supreme Court should have in this proceeding. I note that petitioners appear to have submitted a copy of the June 11, 1996 IEP to the Court in support of their order to show cause (Exhibit SD-18). However, in the order which respondent submitted to it, the Court deleted the phrase " … and is ineligible to participate in the interscholastic programs of the school district" (Exhibit SD-20). In the absence of any other evidence to the contrary, I find that I am not precluded by the Court's order from determining whether the language in the boy's IEP was sufficient to make petitioners' son eligible to participate on respondent's interscholastic bowling team, despite the fact that he was not enrolled in respondent's schools.

        Athletic eligibility rules are not necessarily to be waived because of a student's disability (Crocker v. Tennessee Secondary School Athletic Ass'n., 980 F. 2d 382 [6th Cir., 1992]; McPherson v. Michigan High School Athletic Assoc. Inc., 119 F. 3d 453 [6th Cir., 1997]; Cavallaro v. Ambach, 575 F. Supp. 171 [W.D. N.Y., 1983]; Reaves v. Mills, 904 F. Supp. 120 [W.D. N.Y., 1995]). Nevertheless, such rules may be waived for a student with a disability whose IEP indicates that participation in interscholastic athletics is essential to the student's educational program (Dennin ex rel Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F. Supp. 663 [D. Conn., 1996], appeal dismissed as moot, 94 F. 3d 96 [2d Cir., 1996]; cf. Beatty by Beatty v. Pennsylvania Interscholastic Athletic Association, 24 IDELR 1146, [W.D. Pa., 1996]). In this instance, the New York State Education Department has apparently taken the position that the eligibility rule can be waived, if a student's IEP specifies that he or she should participate in sports. The wording of this boy's IEP short-term objective is equivocal. However, I find that it was the parties' intention that he be permitted to play on respondent's sports teams, if he was otherwise qualified. Respondent's bowling team coach testified at the hearing that petitioners' son would have been a member of the team, based upon his bowling scores. I find that respondent should have allowed the boy to participate on its high school bowling team.

        The final issue to be addressed in this proceeding is whether the hearing officer erred by declining to order respondent to pay for the independent evaluation which petitioners sought for their son. Federal and State regulations require that a child with a disability be re-evaluated at least once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). Petitioners contend that respondent failed to re-evaluate their son within a three-year period, and that they are entitled to have the boy independently evaluated at respondent's expense. Respondent argues that 34 CFR 300.503 (b) and 8 NYCRR 200.5 (a)(1)vi)(a) accord petitioners the right to have an independent evaluation at public expense, if they disagree with respondent's evaluation of their son, but there is no evaluation by respondent with which petitioners can disagree. Respondent also asserts that petitioners have precluded the CSE from conducting its own evaluation (Exhibits SD-25, 32).

        I find that respondent has never performed a complete, multi-disciplinary evaluation of petitioners' son. The hearing officer in the prior hearing also reached that conclusion in determining to order respondent to pay for at least some of the cost of the private evaluations of the boy which petitioners obtained in 1993 and 1994. Petitioners assert that the uncompleted psychological evaluation by respondent's school psychologist in the fall of 1993, a January 1, 1994 letter by the child's physician (Exhibit SD-34) which they provided to the CSE, and the information which their son's private psychologist orally provided to the CSE in January, 1994 constituted an evaluation for the purpose of determining when the boy's triennial evaluation was due. I disagree. The boy's disability is the result of his Tourette's Syndrome, which his physician did not diagnose until August 24, 1994 (Exhibit P-2). Within three years from that date, respondent did attempt to initiate a new evaluation by requesting that petitioners consent to having the boy evaluated. Petitioners testified that they did not receive respondent's May 2, 1996 request (Exhibit SD-6). In any event, on May 30, 1997, two of respondent's school psychologists sought petitioners' consent to perform an updated psychological assessment of the boy (Exhibit SD-29). Following an exchange of correspondence, petitioners indicated on June 16, 1997 that their son had refused to be tested by respondent's personnel, and alluded to their request for an independent evaluation (Exhibit SD-32). I find that respondent did attempt to re-evaluate the boy within a three-year period from August 24, 1994. The fact that it was unable to perform the re-evaluation because of the stance taken by petitioners does not afford a basis for finding that petitioners are entitled to an independent evaluation at public expense. They may, of course, have an independent evaluation at public expense, after respondent has completed its evaluation, subject to the right of respondent to initiate a hearing for the purpose of proving that its evaluation was appropriate.

        The record reveals that there has been a break down in trust and cooperation between petitioners and respondent's CSE. I urge both parties to work together for the boy's benefit.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the hearing officer's decision to the extent that it found that respondent had not violated Part 200 of the Regulations of the Commissioner of Education is hereby annulled.

 

Dated: Albany, New York __________________________
April 8, 1998 FRANK MUŅOZ