93-026

Petitioner appeals from the decision of an impartial hearing officer finding that the fees incurred by petitioner for an independent neurological evaluation were unreasonably expensive, and holding that respondent had discharged its obligation to pay for independent evaluation upon its payment of $175 to the neurologist who performed such evaluation. The appeal must be sustained.

Petitioner's child, who graduated from respondent's high school in June, 1993, had been classified as learning disabled because of his difficulties with reading, spelling and speech and language organization. During the 1992-93 school year, the child was classified as multiply handicapped/learning disabled. While attending high school, the child received special education instruction, resource room services and related services. Neither the child's classification nor his instructional program is at issue in this appeal.

Petitioner initially sought to obtain an independent neurological evaluation of the child in September, 1990 when she asked respondent's committee on special education (CSE) to revise the child's individualized education program (IEP) for the 1990-91 school year. The CSE chairperson advised petitioner by letter dated October 19, 1990, that respondent would evaluate the child, but would not pay for an independent evaluation. At the outset of an impartial hearing requested by petitioner and held on December 17, 1990, petitioner and respondent reached an agreement to have the child further evaluated and reviewed by the CSE. However, petitioner subsequently requested that the hearing be reopened to resolve a dispute concerning the amount of speech/language therapy to be provided to the child.

After an extensive delay and an appeal to the Commissioner of Education (Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 195), the hearing resumed on September 19, 1991. On September 24, 1991, the reconvened hearing was terminated by agreement of the parties. As the terms of the agreement were entered upon the record, petitioner's lay advocate reiterated petitioner's request for certain independent evaluations. On the record, respondent's attorney stated that respondent was not opposed to an independent neurological evaluation, but would oppose petitioner's requests for independent neuropsychological and auditory processing evaluations. The hearing officer observed that respondent was required to either pay for each of the requested independent evaluations or commence a hearing to demonstrate the appropriateness of its own evaluations (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]; Application of a Child Suspected of Having a Handicapping Condition, 30 Ed. Dept. Rep. 433).

At a meeting held on October 25, 1991, the CSE agreed to pay for an independent neurological evaluation of the child. On November 11, 1991, the child was examined by the neurologist selected by the parent. At the hearing in this proceeding, the director of pupil personnel services testified that he had a telephone conversation with the neurologist selected by petitioner in which the neurologist had advised him that he typically performed a general neurological evaluation in his office for a fee of $175. The director further testified that he had not revealed the child's name to the neurologist during the conversation. In his testimony, the director was unable to state when the conversation occurred, and the record does not reveal whether this conversation occurred before or after the November 11, 1991 examination. By letter dated November 20, 1991, the director of pupil personnel services referred to an earlier letter not in the record, described his understanding of the conversation, identified the child for the first time and asked the physician to inform him of the need for any additional tests of the child before ordering such tests.

At the hearing in this proceeding, petitioner testified that the neurologist advised her that several tests were necessary before he could offer his diagnosis in his evaluation. On November 11, 1991, the child's blood was tested at a local hospital. On November 19, 1991, additional tests, including a 24 hour electroencephalogram (EEG), a brain stem auditory evoked response test (BSAER) and a visual evoked response test (VER) were administered. The child also received a brain scan (MRI) on January 17, 1992, and was seen again by the neurologist in February, 1992. Respondent's director of pupil personnel services testified that the neurologist did not inform him of the need for any additional tests.

In a report to the director of pupil personnel services, dated March 6, 1992, the neurologist stated that as a result of his November 11, 1991 examination of the child, he found signs of a probable learning disability with soft neurological findings. The neurologist also stated that in his professional judgment further tests were warranted, "to rule-out any abnormalities." The neurologist reported that the results of the brain stem and visual evoked response tests were unremarkable, and the blood test results were grossly normal, while the EEG revealed a non-specific slowing. Although the MRI revealed that the child had a malformation of the brain, the neurologist did not disclose the effect, if any, such malformation would have upon the child's mental and physical abilities. The neurologist opined that: "there may be a neurological basis for his learning difficulties." The chairperson of the CSE testified at the hearing in this proceeding that the neurologist's report, which relied on all of the tests administered to the child, was one of the documents upon which the CSE relied when it recommended that the child's classification be changed to multiply handicapped/learning disabled at its May 14, 1992 meeting.

On April 6, 1992, the impartial hearing which had commenced in December, 1990 was again reconvened to review the child's reading program, and was concluded on July 13, 1992. On the last day of the hearing, petitioner renewed her request for independent neuropsychological and speech/language evaluations, and asserted that respondent had failed to pay for the independent neurological evaluation. Respondent's attorney asked petitioner to provide copies of the neurologist's bill. In his decision following the July 13, 1992 hearing, the hearing officer held that petitioner was precluded from raising the issues of the performance of independent evaluations or payment for the already completed independent neurological evaluation because her advocate at the April 6, 1992 hearing had stated that the child's reading program was the sole issue to be determined.

Petitioner appealed from the hearing officer's decision. In Application of a Child with a Handicapping Condition, Appeal No. 92-35, I held that the hearing officer had abused his discretion in not deciding the issue of petitioner's request for independent evaluations and directed respondent to pay for the evaluations. My decision was premised upon petitioner's right as a matter of Federal and State law to obtain such evaluations at respondent's expense, absent respondent's timely commencement of a hearing to establish the appropriateness of its evaluations. With regard to the reimbursement of petitioner for the cost of the independent neurological evaluation, I directed respondent to pay for such evaluation, unless respondent instituted a hearing to challenge the reasonableness of the cost of the evaluation, within 15 days after the date of my decision. An action commenced by respondent in the United States District Court for the Southern District of New York to review my decision is still pending.

Respondent promptly initiated a hearing to challenge the reasonableness of the cost of the child's independent neurological evaluation. The hearing was adjourned at petitioner's request until April 16, 1993. At the hearing, petitioner presented evidence that the total cost of the independent evaluation was $2,733.50, approximately $1600 of which was the neurologist's fee. The remainder included hospital charges for blood tests and a $900 charge for the MRI. The record reveals that petitioner's health insurer paid the sum of $640 to the provider of the MRI. At the neurologist's request, petitioner paid the neurologist $1525, a portion of which was for the November 11, 1991 service. The neurologist also billed and received from respondent the sum of $175. Petitioner's payments and the remaining charges for the overall evaluation totaled $1918.50, for which she sought payment from respondent.

In a decision dated May 7, 1993, the hearing officer credited the testimony of respondent's director of pupil personnel services in finding that the neurologist selected by petitioner had agreed to perform the child's evaluation for $175, and that the neurologist had failed to apprise respondent of the need for additional tests in accordance with the alleged agreement between the neurologist and the respondent's administrator. The hearing officer held that the appropriate standard to be used in this case was whether the additional tests included in the neurologist's report and relied on in making his assessment were necessary to provide information which the CSE could use in recommending an appropriate educational program for the child. The hearing officer further held that the tests ordered by the neurologist did not afford a basis for providing educational information to the CSE and the respondent's financial responsibility for the cost of the independent evaluation was limited to the $175 which it had paid to the neurologist.

Respondent asserts that the matter is moot because the child has graduated from high school. Respondent's assertion is without merit. Petitioner's claim for monetary relief survives her child's graduation (University of Texas v. Camenisch, 451 U.S. 390 [1981]). Respondent further asserts that the appeal should be dismissed because petitioner's claim for monetary relief should be directed against the neurologist, who is not a party to this proceeding. This assertion is also without merit. In essence, respondent assumes that petitioner is a third party beneficiary of an alleged contract between respondent and the neurologist and that petitioner's right to obtain reimbursement has been negated by the neurologist's breach of the alleged contract when he performed or ordered additional tests without respondent's approval.

Petitioner's right to reimbursement is not based upon the alleged contract between respondent and the neurologist. Respondent was obligated to assess the child in all areas related to his disability (34 CRR 300.532 [f]; 8 NYCRR 200.4 [b][4][vi]). Petitioner challenged the adequacy of respondent's evaluation, which did not include a neurological examination. Respondent approved the recommendation of its CSE to have the child neurologically evaluated, in lieu of initiating a hearing to establish the adequacy of its evaluation without a neurological evaluation. Therefore, petitioner's child was entitled to receive an independent neurological evaluation at no expense to petitioner (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]). The need for a neurological evaluation is not in dispute, nor does respondent challenge the qualifications of the neurologist selected by petitioner to perform the evaluation. Indeed, respondent's CSE relied upon the neurologist's report which is premised upon all of the tests administered to the child. Respondent may have a claim against the neurologist. However, it may not assert that claim as a defense to petitioner's claim for reimbursement, because it would violate petitioner's right to an independent evaluation at public expense.

It would also be an inequitable result upon the facts in this record. Petitioner testified that she was not advised by either the CSE or the director of pupil personnel services that there would be a monetary limit upon the fee which respondent would pay for a neurological evaluation. The blood tests were performed on November 11, 1991, and the EEG, the BSAER and the VER test were performed on November 19, 1991. However, the director of pupil personnel's letter to the neurologist wherein the child was identified for the first time was not written until November 20, 1991. Only the MRI was performed after the letter was written. Petitioner testified at the hearing that she did not receive the November 20, 1991 letter. Her testimony is unrebutted. Although petitioner has paid a significant part of the total cost and her insurer has paid for most of the cost of the MRI, such payments by petitioner and her insurer do not afford a basis for finding that petitioner knew or should have known of respondent's alleged agreement with the neurologist. Indeed, Federal regulation provides that an insurer or other similar third party is not relieved from an otherwise valid obligation to provide or to pay for services provided to a child with a disability merely because a school district is required to provide the child with a free appropriate public education (34 CFR 300.301 [b]). Each school district may, and should, use whatever Federal, State, local and private funds are available to pay for needed services (34 CFR 300.301 [a]). The application of petitioner's third party payment to a portion of the cost of the evaluation benefits respondent. I find that there is no evidence that petitioner was aware of any limitation upon the cost of the child's evaluation. I have also considered respondent's other legal defenses to the petition, and find them to be without merit.

The U.S. Department of Education has opined that boards of education may preclude payment for unreasonably expensive independent evaluations by imposing certain limitations upon the right of parents to obtain independent evaluations, such as reasonable travel distances, minimum qualifications for evaluators, and upper limits upon the costs of particular tests (1980 EHLR 211:227). The criteria which boards of education apply to the performance of independent evaluations must be the same as the criteria which the boards employ in their own evaluations. Maximum allowable fees must not simply be an average of fees customarily charged by professionals in the area, but must permit parents to choose from among qualified individuals in the area (1989 EHLR 213:259). However, the hearing officer found, and respondent does not dispute, that respondent had not adopted cost criteria for independent evaluations at the time petitioner's child was independently evaluated. Therefore, it was incumbent upon respondent to demonstrate at the hearing that the total cost of the child's evaluation was unreasonable (Ibid).

At the hearing, respondent failed to offer any evidence of the fees charged by other neurologists and related service providers for the services performed in this child's evaluation. Notwithstanding the absence of any evidence challenging the reasonableness of the total fees charged for the child's evaluation, the hearing officer found that respondent had nevertheless met its burden of proof. The hearing officer premised his decision upon a finding that: "A general neurological evaluation/diagnosis, directed to the handicapping condition ... is all that is necessary." However, nowhere in the hearing officer's decision or in the record are the elements of a general neurological evaluation established, other than in the neurologist's report wherein he determined the need for the tests. Indeed, the hearing officer could not have arrived at the conclusion within the confines of the present record because no proof of what would be an adequate evaluation for educational purposes was ever presented. Indeed, at the hearing, respondent's director of pupil personnel conceded that the neurologist had not specified in his telephone conversation what tests and procedures would be performed in the evaluation of the child. Respondent did not offer the testimony of any witness which would establish a benchmark for an adequate evaluation for educational purposes, or provide a rational basis for disagreeing with the neurologist's professional judgment that the additional tests which he ordered to be performed were warranted for this child in order to complete the evaluation. Indeed, the unrestricted third party payment for a portion of the tests suggests that the tests were reasonable. Consequently, I find that respondent did not meet its burden of proof, and that the hearing officer's decision must be annulled.

Finally, inexplicably respondent has not submitted copies of all of the exhibits identified in the hearing transcript. Although petitioner's exhibits 13-22 were marked for identification, but not entered into evidence, they were read into the record by the hearing officer, who briefly described each exhibit. The exhibits were copies of bills to petitioner for the neurological evaluation and her checks in partial payment of such bills. The exhibits should have been entered in evidence, in order for the hearing officer and any subsequent reviewer to ascertain the extent of petitioner's claim for reimbursement. Respondent did not submit copies of such exhibits, but has not objected to the accuracy of the hearing officer's finding of the amount due. Petitioner annexed copies of all but two of the exhibits to the petition. While I am satisfied that the record before me is sufficient to render a decision, I must once again admonish respondent to maintain an accurate record of the hearing and to promptly file the record with the State Education Department upon respondent's receipt of a notice of intention to seek review (8 NYCRR 279.7 [a]; Application of a Child with a Handicapping Condition, Appeal No. 92-35).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the sums which she has paid for the child's independent neurological evaluation and shall pay the outstanding balances on the remaining charges for such evaluation.