The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE MONTICELLO CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Donoghue, Thomas, Auslander & Drohan, attorney for petitioner, James P. Drohan, Esq., of counsel
Garrett L. Silveira, Esq., attorney for respondents
Petitioner, the Board of Education of the Monticello Central School District, appeals from an impartial hearing officerís decision ordering it to reimburse respondents for the cost of obtaining an independent educational evaluation for their son. The hearing officer determined that the petitioner had unnecessarily delayed its response to the parentsí request for an independent evaluation. The appeal must be dismissed.
Respondentsí son was born in 1986, and at the time of the impartial hearing was in the ninth grade. He has been a student in petitionerís schools since kindergarten, and has reportedly been classified as learning disabled by petitionerís Committee on Special Education (CSE) since the fourth grade (Transcript p. 244). In the 1998-99 school year, the studentís mother became concerned about her sonís grades and the progress he was making in school. She related her concerns to school staff, including her sonís guidance counselor (Transcript p. 248). By the end of the 1998-99 school year, respondents were convinced that the school district was missing something (Transcript p. 252). The studentís pediatrician recommended that respondentsí son be seen by a neurologist.
A neurologist evaluated the student in July 1999. He did not identify any abnormality in the results of his examination of respondentsí son, but nevertheless asserted his belief that the student had a diagnosis of neurological impairment. He also indicated that he had asked the studentís mother to arrange to have her son receive occupational therapy, and to "address his other learning needs" (Exhibit 3). The neurologistís report was dated July 15, 1999. In a handwritten letter dated July 28, 1999, the neurologist recommended that the student have an independent psychoeducational evaluation performed by Dr. Phoebe Liss (Exhibit 4). No explanation was given for his recommendation. In a letter dated May 23, 2000, a neurologist associated with the examining neurologist indicated that an up-to-date psychoeducational battery would be helpful in planning for the studentís placement (Exhibit I). The record reveals that the studentís triennial educational evaluation had been performed on December 18, 1998 (Exhibit 1), and that a school psychologist had evaluated the student on or about February 16, 1999 (Exhibit 2).
By letter dated July 29, 1999, the studentís mother asked petitionerís director of pupil personnel services (director) for an independent evaluation of her son by Dr. Liss (Exhibit 5). The director responded on August 3, 1999, by indicating that:
A parent may request an independent evaluation at public expense only if they disagree with the evaluation(s) obtained by the school district. However, please be informed that the school district may initiate an impartial hearing to show that its evaluation is appropriate. If the parent upholds the district, the parent has a right to an independent evaluation, but not at public expense.
The director asserted that the parents had not at any time indicated that the districtís evaluations were inappropriate, and that he believed that the studentís individualized education program (IEP) was appropriate. He invited the mother to contact him for an appointment to discuss the studentís educational program (Exhibit 6).
Between August and November 1999, a number of meetings took place between the parents and petitionerís staff in an attempt to work together to provide a program for the student. In a letter to the school psychologist dated November 29, 1999, the studentís mother indicated that although the parents were happy to cooperate with the district in trying to improve their sonís IEP, they were not waiving their request for additional testing (Exhibit F). Although the parties reportedly continued to discuss the parentsí request for an independent evaluation, no resolution was reached.
By letter dated October 10, 2000, the studentís mother reiterated her request for an independent educational evaluation to the director (Exhibit 11). The director responded by letter dated November 7, 2000, indicating that the regulations "Öallow us to request the reason why parents object to the public evaluation. At this time it would be helpful if I understood which psychological evaluation you are objecting to and the specific reasons why you feel that evaluation is not appropriate" (Exhibit 12). The studentís mother replied by letter dated November 17, 2000, but did not indicate what evaluation or parts of the districtís evaluation she disagreed with (Exhibit 13). In a letter dated November 22, 2000, the director indicated that Dr. Liss was not on petitionerís list of approved independent evaluators, and he asked respondent to provide documentation about her qualifications to perform the evaluation (Exhibit 14). In a subsequent letter dated December 1, 2000, the director indicated that petitioner believed that its evaluations were appropriate, and that if the parents wished to obtain an independent evaluation at public expense, he would notify the superintendent of schools to arrange with the Board of Education for an impartial hearing (Exhibit 15).
In the fall of 2000, respondents arranged for Dr. Liss to evaluate their son. The evaluation began on October 18, 2000 and was completed on November 9, 2000 (Exhibit 20). On February 22, 2001, the studentís mother forwarded the results of the independent evaluation to the director (Exhibit 16). She also enclosed Dr. Lissí bill, and requested that petitioner reimburse respondents for the cost of the evaluation, which was $1000.
The Board of Education initiated an impartial hearing that was conducted on April 26 and May 2, 2001. The Board of Education maintained that the district was not obliged to pay for the independent evaluation obtained by respondents because it had requested an impartial hearing in a timely manner once it realized that they were still insisting on the evaluation. It also asserted that the issue of an independent evaluation had been resolved by the settlement reached in a mediation proceeding. Respondents maintained that mediation had resolved some of the issues between the parties, but it did not address the request for an independent evaluation. They further maintained that petitioner had unreasonably delayed in initiating the hearing, and that it should therefore be compelled to reimburse them for the cost of their sonís evaluation by Dr. Liss.
In his decision which was rendered on September 23, 2001, the impartial hearing officer found that since the school district unnecessarily delayed acting upon the parentsí request for an independent evaluation, the parents had acted appropriately in taking the initiative to obtain the evaluation. The impartial hearing officer further found that Dr. Liss was qualified to conduct the evaluation, and that her evaluation provided additional useful information for programming purposes. He ordered the Board of Education to reimburse respondents for the full cost of the evaluation.
The Board of Education contends that the hearing officer could not order the school district to pay for an independent evaluation, unless he first determined that the districtís evaluation was inadequate. It notes that the applicable federal regulation does not expressly impose a time limit for it to initiate a hearing to prove that its evaluation was appropriate. Petitioner maintains that there was no undue delay on its part in requesting an impartial hearing, and that even if there were a delay, the appropriate remedy would be to direct the Board of Education to prove that its evaluation was appropriate.
The applicable federal regulation provides in material part as follows:
(b) Parent right to evaluation at public expense
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either-
(i) Initiate a hearing under Sec. 300.507 to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under Sec. 300.507 that the evaluation obtained by the parent did not meet agency criteria.
(3) If the public agency initiates a hearing and the final decision is that the agencyís evaluation is appropriate, the parent still has the right to an independent education evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the public agency may ask for the parentís reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
(34 C.F.R. ß 300.502[b]; see also 8 NYCRR 200.5[g]).
The central issue in this appeal is whether the petitioner unreasonably delayed initiating an impartial hearing to establish that its evaluation of respondentsí son was appropriate. Respondents first requested an independent evaluation in July 1999. There is no evidence that they withdrew their request for an independent evaluation during the ensuing 20 months before petitioner initiated the hearing in this proceeding. I have considered petitionerís assertion that the matter was addressed in the mediation that was conducted in the summer of 2000. I see nothing in the written agreement that resulted from the mediation effort to support petitionerís assertion (Exhibit 18).
Although the Board of Education could ask the parents for information about the nature of their disagreement with the districtís evaluation, it could not delay instituting a hearing because the parents did not provide such information (Application of a Child with a Disability, Appeal No. 98-33). In essence, petitionerís staff was well aware of respondentsí request for an independent evaluation, and it waited until respondents presented a bill for the independent evaluation to initiate a hearing. The hearing officer found that the delay was unreasonable. I find that there is no reason to disagree with the hearing officerís finding (Application of Child with a Handicapping Condition, Appeal No. 92-35). Accordingly, I do not reach the issue of the appropriateness of the school districtís evaluation of the student.
The Board of Education objects to paying for the independent evaluation by Dr. Liss because her name does not appear on its list of approved evaluators. However, it is not a requirement that her name appear on petitionerís list. The relevant federal regulation provides in pertinent part:
(e) Agency criteria
(1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parentís right to an independent educational evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.
Petitioner has also questioned Dr. Lissí qualifications in connection with respondentsí request that the Board of Education pay for the independent evaluations. I note that at the hearing, petitionerís director testified that he hadnít determined whether Dr. Liss met petitionerís qualifications for performing an independent evaluation (Transcript p. 91). Under the circumstances, I find that petitioner cannot raise the issue in this appeal. I express no opinion about the applicability of the provisions of ßß 7601 and 7605 of the New York State Education Law to the facts of this case. Finally, I note that the director acknowledged that the fee for the evaluation was appropriate under petitionerís guidelines (Transcript pp. 92-93).
THE APPEAL IS DISMISSED.
Albany, New York
June 4, 2002