92-036

Petitioners appeal from the decision of an impartial hearing officer holding that their child's triennial evaluation, which should have been performed by June, 1990, had not been purposefully delayed by respondent, and would have been performed in 1990, but for petitioner's refusal to cooperate with respondent. The appeal must be dismissed.

Petitioners' child, who is thirteen years old, has been diagnosed as having Purine Autism, which is a metabolic disorder and requires that she maintain a restricted diet. The child also has seizures which cannot be completely controlled, and is very sensitive to noise. In 1984, the child was initially classified by respondent's committee on special education (CSE) as autistic. The child's classification is not in dispute in this appeal.

The child's educational program has been in dispute between the parties since the 1984-85 school year. The dispute has led to three appeals to the Commissioner of Education (Appeal of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323; Application of a Child with a Handicapping Condition, 31 id. 337; Appeal of a Child with a Handicapping Condition, 32 id. 104; as well as two appeals to the State Review Officer: Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Handicapping Condition, Appeal No. 92-22).

After a decision was rendered in petitioner's first appeal to the Commissioner of Education, petitioners commenced an action in the United States District Court for the Northern District of New York, in which the Court granted petitioner's request for a preliminary injunction. On August 4, 1989, the Court directed respondent to provide the child with an in-home program of instruction on a twelve-month basis, as the child's pendency placement during the lawsuit (20 USC 1415 [e][3]). The Court did not reach the issue of the appropriateness of that placement. The child has continued in that program, the merits of which are not at issue in this appeal.

The record reveals that the child's first triennial evaluation was performed in 1987, at the Mental Retardation Institute, which is affiliated with the Westchester County Medical Center. In June, 1990, the chairperson of the CSE wrote to petitioners about having the child's 1990 triennial evaluation performed at the Yale University Child Study Center (Yale). Respondent unsuccessfully attempted to obtain petitioners' consent to have the evaluation performed, which Yale required, but which was not required by Federal or State regulation (34 CFR 300.504 [b]; 8 NYCRR 200.5 [b]). An evaluation scheduled to take place at Yale on November 6, 1990, was canceled, because petitioners did not sign a consent form.

In January, 1991, respondent initiated an impartial hearing for the purpose of obtaining an order directing petitioners to sign the consent form for the child's evaluation at Yale. The hearing was adjourned once, at the request of petitioners. Petitioners' request for a second adjournment was denied. On February 28, 1991, a hearing was held in petitioners' absence. The hearing officer directed that the hearing transcript and exhibits be sent to petitioners, and that they be afforded the opportunity to cross-examine witnesses and introduce evidence when the hearing reconvened on March 14, 1991. The child's mother briefly attended the reconvened hearing, but left the hearing after informing the hearing officer of petitioners' pending application to the Commissioner of Education for an order staying the hearing. The hearing officer held his decision in abeyance, pending the Commissioner's determination of petitioners' request for a stay order. Petitioners' request was subsequently denied (Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 337). On April 3, 1991, the hearing officer rendered a decision holding that respondent had a right to have the child evaluated at Yale, and directing petitioners to sign the consent for such evaluation. Petitioners did not seek review of the hearing officer's decision.

By letter dated April 11, 1991, respondent's special assistant to the superintendent of schools asked petitioners to sign a new consent form and to complete a parental information packet, so that the child could be evaluated at Yale. In subsequent correspondence between petitioners and the special assistant, petitioners requested that an evaluation at Yale be scheduled. The record reveals that a tentative appointment for the evaluation to be conducted in September, 1991 was made, while the special assistant was asking petitioners to complete various forms, in addition to a consent form which the child's mother signed on April 25, 1991. In a letter dated June 3, 1991, a representative of Yale informed petitioners that an evaluation would be performed on September 16 and 17, 1991.

By letter of July 17, 1991, the respondent's special assistant also confirmed the September evaluation, and concluded by asking about petitioners' travel arrangements.

" What travel and/or over-night accommodations would your family wish to have? The school will make the arrangements if you wish".

On July 31, 1991, in another letter to petitioners, the special assistant reminded petitioners that respondent awaited their instructions concerning travel arrangements.

In a September 1, 1991 letter to the special assistant, the child's father requested an assurance that petitioners' travel expenses would be paid. The father asserted that petitioners would submit receipts for the expenses which they would incur, and asked if petitioners could receive a $400. advance payment. The father, who is an employee of respondent, also expressed his expectation that he would not be required to use his leave days for his absence during the evaluation.

In a letter dated September 6, 1991, the special assistant responded to the father's request by offering, once again, to arrange for petitioners' travel and lodging and to pay for all or a portion of such services with purchase orders. The special assistant asserted that it was both illegal and against respondent's policy to pay cash advances, and that the father's absence from school would be governed by the provisions of the collective bargaining agreement between respondent and its teachers. By letter of September 11, 1991, petitioners requested payment in advance of $875. for their anticipated travel expenditures. The special assistant responded to petitioners on September 13, 1991, by reiterating her earlier assertion that petitioners would be reimbursed for their expenditures and that they could not receive a cash advance from respondent. The child did not appear for the scheduled evaluation at Yale on September 16, 1991.

At the hearing, respondent's special assistant testified that she obtained a new appointment date for March, 1992 from Yale, and attempted to make travel arrangements for petitioners through petitioners' attorney in the United States District Court action. On September 10, 1991, petitioners and respondent agreed to settle petitioners' lawsuit, upon respondent's payment for petitioners of $142,000. Judgment was entered dismissing petitioners' action on September 17, 1991. However, the Court retained jurisdiction to reopen the action, upon a showing that the terms of the settlement had not been met.

In a letter to the Court, dated October 10, 1991, respondent's attorney asserted that petitioners had not complied with the settlement, because of their failure to keep the September 16, 1991 appointment at Yale. In November, 1991, respondent moved for a declaratory judgment by the United States District Court absolving respondent of potential financial liability to petitioners under the holding of School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, because of petitioners' alleged failure to cooperate in allowing the child to be evaluated and in refusing to allow special education teachers into their home. Respondent's motion remained pending for an extended period of time, during which petitioners' attorney in the Court action and respondent's attorney attempted to settle the matter.

In February, 1992, petitioners wrote to the special assistant on three occasions to express their concern that the child could not be evaluated at Yale until July or August, 1992, and to urge that a triennial evaluation be scheduled at another institution. By letter of February 28, 1992, the special assistant advised petitioners that the child would be evaluated at Yale on July 20 and 21, 1992, and that the special assistant would make petitioners' travel arrangements through their attorney in the Court action. In a letter dated March 17, 1992 petitioners asked the special assistant to make all travel arrangements directly with them.

On March 20, 1992, petitioners asked for an impartial hearing on the issue of respondent's failure to obtain a triennial evaluation of the child. A hearing was held before a hearing officer who was not the hearing officer in the 1991 hearing. When the hearing commenced on April 30, 1992, petitioners, who were assisted by a lay advocate, asked the hearing officer to order respondent to immediately obtain a triennial evaluation and to find that respondent had intentionally delayed securing an evaluation by its insistence upon an evaluation at Yale. Respondent moved to cancel the hearing, upon the ground that on April 24, 1992 in a proceeding before a United States Magistrate-Judge of the United States District Court for the Northern District of New York, petitioner's attorney for the lawsuit in the Court and respondent's attorney had entered upon the record a stipulation, one of the terms of which was petitioners' agreement to withdraw their March 20, 1992 request for an impartial hearing. In the alternative, respondent requested that the hearing be held in abeyance, pending receipt of the transcript of the April 24, 1992 proceeding. Petitioners asserted that their attorney had not been authorized to agree to the terms of the settlement entered upon the record of the Court, and insisted that the hearing officer issue an immediate decision. The hearing officer declined to issue an instant decision, in the absence of any record to support a decision, and noted that the petitioners had apparently decided not to proceed with the hearing. The hearing was terminated.

In May, 1992, petitioners advised respondent's special assistant that they would obtain an evaluation of the child from the New York University-Bellevue Hospital. The special assistant informed petitioners that the proposed evaluation would be their independent evaluation, but that respondent still wished to have an evaluation done by Yale. The record does not reveal whether the evaluation scheduled at Yale for July 20 and 21, 1992 was performed.

On June 26, 1992, the hearing resumed, at petitioner's request. Petitioners were represented by their present attorney, who did not represent them in the March 20, 1992 hearing or in the Court action. The testimony and evidence introduced at the hearing centered upon the efforts respondent had made to provide a triennial evaluation subsequent to the first hearing officer's decision of April 3, 1991. By decision dated August 12, 1992, the hearing officer held that the long overdue triennial had not been delayed by any purposeful act by respondent, and that petitioners had reneged on their agreement to have the child evaluated at Yale on September 16 and 17, 1991, by insisting on the payment in advance for travel expenses to be incurred. The hearing officer directed the parties to make immediate arrangements for the child's evaluation at Yale, and directed petitioners to select one of three options for reimbursement which respondent had previously offered to them. The hearing officer retained jurisdiction to resolve any disagreement over the amount of reimbursement.

On August 28, 1992, the United States District Court denied respondent's motion for summary judgment, holding that any dispute between the parties involved facts occurring after petitioners' lawsuit had been settled in September, 1991.

Petitioners attack the hearing officer's decision as both factually and legally flawed. They attempt to raise factual and legal issues concerning respondent's attempt to arrange for an evaluation of the child in November, 1990, which requires a preliminary determination about the scope of review in this appeal.

Although events which occurred prior to the other hearing officer's decision of April 3, 1991 were briefly discussed in the hearing which is the subject of this appeal, most of the testimony and evidence which are in the record before me relate to events after April 3, 1991. Indeed, petitioners' present counsel stated at the June 26, 1992 hearing that ... "the issue here is whether the actions of the school district particularly focuses on two periods of time, September, 1991 and February/March 1992, give rise to an inference that the District intended to delay or make difficult the triennial evaluation" (Transcript, page 72). The record before me is inadequate to determine petitioners' present claims about the timeliness and adequacy of the notices and forms which they received from respondent in the Fall of 1990. A review of the events of the Fall of 1990 would be an unwarranted collateral attack upon the first hearing officer's decision, from which petitioners did not appeal. Accordingly, petitioners may not re-litigate the issues addressed in the hearing officer's decision of April 3, 1991 (Schwartz v. Public Administrator, 24 NY 2d 65; Ryan v. N.Y. Telephone Co., 60 NY 2d 494; Bernstein v. Wathen School, 71 AD 2d 129). I have considered petitioners' claim that the April 3, 1991 decision should be given no preclusive effect because of their non-participation in that hearing and find it without merit. While there must have been a full and fair opportunity to contest the issues in the earlier proceeding in order to invoke the doctrine of collateral estoppel (Schwartz v. Public Administrator, supra), I am unpersuaded by petitioners' bare assertion that they could not participate in the 1991 hearing because they were involved in another impartial hearing.

Petitioners assert that respondent continually failed to assure them of the appropriateness of a triennial evaluation at Yale, by not explaining why respondent had selected Yale. They further assert that respondent was obliged to explain why travel to Yale was necessary to conduct an appropriate evaluation. They offer no legal authority for their assertions. Federal and State regulations require that boards of education periodically arrange for the re-evaluation of children who have been classified as disabled (34 CFR 300.534 [b]; 8 NYCRR 200.4 [f][4]. Boards of education have the right to select the individuals or institutions which will perform the evaluations (Vander Malle v. Ambach, 673 F 2d 49 [2nd Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2nd Cir., 1984]). While petitioners appear to object to an evaluation at Yale on the basis of its distance from their home, the record shows that they had previously agreed to have the child evaluated at Yale. Nor has travel been an issue when the record also shows they took the child to Staten Island on three occasions to have an evaluation performed.

Petitioners also assert that respondent's refusal to pay them a lump sum in advance of their expenditures for the proposed trip to Yale in September, 1991 violated their child's right to a free appropriate public education (20 USC 1401 [a][18]). However, the record reveals that respondent offered to allow petitioners to use district purchase orders to pay for transportation and lodging and agreed to reimburse petitioners for their necessary and reasonable incidental expenditures. The Office of Civil Rights has held that it was not a denial of the right to a free appropriate public education to reimburse a disabled child only for substantiated transportation expenses (EHLR 352:595).

My review of the interactions between petitioners and respondent's staff concerning the scheduled evaluation at Yale in September, 1991 and attempts to arrange for another appointment at Yale thereafter reveals no basis for annulling the hearing officer's findings. I have considered petitioners' other assertions and find them to be without merit.

As I noted in Application of a Child with a Handicapping Condition, Appeal No. 91-19, there has been a substantial breakdown in the relationship between petitioners and some members of respondent's staff. That breakdown necessarily works to the disadvantage of the child, regardless of the sincerity with which the parties may believe in their respective positions. It is imperative that petitioners cooperate with respondent in securing the long delayed triennial evaluation.

THE APPEAL IS DISMISSED.