95-051

      Petitioner appeals from a decision of an impartial hearing officer which held that respondent was legally required to notify petitioner of its intention to evaluate petitioner's son, but was not required to obtain petitioner's consent for an evaluation, notwithstanding petitioner's withdrawal of his consent to evaluate the child, who had previously been identified as having a disability. Petitioner challenges the hearing officer's decision on the ground that she allegedly failed to consider the relevant Federal regulations regarding parental consent to evaluation, and that she failed to consider what petitioner describes as respondent's attempt to condition the continued provision of services to the child upon petitioner's consent to having the child evaluated. Petitioner also challenges the manner in which the hearing officer was appointed and the hearing was conducted. The appeal must be dismissed.

        In March, 1991, petitioner's child sustained multiple trauma, including a severe head injury, in an automobile accident. In September, 1991, the child was referred to respondent's committee on special education (CSE) by his parents. In March, 1992, the child's parents consented to the child's evaluation by the CSE. In April, 1992, the CSE recommended that the child be classified as other health impaired and that he receive various special education services including speech/language therapy, physical therapy, occupational therapy, and "educational related" services. The child is presently classified as traumatic brain injured. There is no dispute about the child's classification.

        The child has been in the Crouse-Irving Hospital in Syracuse, New York, since 1992. Respondent has provided services to the child at the hospital. Petitioner and respondent have been involved in a number of impartial hearings and appeals to the State Review Officer concerning respondent's provision of services to the child (Application of a Child with a Disability, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 94-28; Application of a Child with a Disability, Appeal No. 95-10; Application of a Child with a Disability, Appeal No. 95-44).

        One of the prior proceedings involved the observation of the child by respondent's staff in May, 1993, for the purpose of providing the CSE with information about the child's needs, so that the CSE could conduct its annual review. The CSE did not notify petitioner that its staff would conduct the observation/assessment. A hearing officer held that the CSE did not comply with the State regulatory requirement that the parents of a child with a disability be provided with notice of a proposed evaluation (8 NYCRR 200.5 [a][1]). The hearing officer's decision was affirmed by the State Review Officer who noted that his decision should not be construed as equating a review of existing child's records in preparation for an annual review with an evaluation of a child (Application of a Child with a Disability, Appeal No. 93- 47).

        This proceeding arises from a letter by petitioner to the chairperson of the CSE, dated April 9, 1995, which reads as follows:

"Please be advised that I hereby rescind any and all consent for you (the Canastota School District) to evaluate my son [child's name] for educational purposes or for any evaluation(s) to be conducted upon my son [child's name] for any educational purposes, whatsoever, without my prior, written consent."

        In two separate letters to the CSE chairperson, each dated April 7, 1995, petitioner requested that an impartial hearing be held concerning respondent's alleged failure to implement the child's individualized education program (IEP) "and associated agreement," and its alleged failure to ensure petitioner's right as a parent to be an equal participant in developing, reviewing and revising his son's IEP. A hearing was held on May 15, 1995, at which respondent asked the hearing officer to consider not only the two issues raised by petitioner in his letters of April 7, 1995, but also the issue of petitioner's withdrawal of consent to his child's evaluation. Petitioner, respondent's attorney, and the hearing officer discussed the intended meaning of petitioner's letter of April 9, 1995, as well as petitioner's assertion that he was unaware that the issue would be raised at the hearing and was unprepared to address it. The hearing officer agreed to sever the issue of consent to the child's evaluation from the other two issues, and to hold a separate hearing with regard to consent to the child's evaluation. The hearing officer dismissed both of petitioner's claims involving the implementation of the child's IEP and his role in developing the IEP.

        Petitioner appealed from the hearing officer's decision involving the hearing which was held on May 15, 1995. In his appeal, petitioner challenged the manner in which the hearing officer had been appointed on the ground that the CSE chairperson had allegedly been involved in the selection of the hearing officer. His challenge was dismissed because there was no evidence that the CSE chairperson had any contact with the hearing officer prior to the hearing and because the chairperson had not been a witness at the May 15, 1995 hearing (Application of a Child with a Disability, Appeal No. 95-44). Petitioner's claim of bias by the hearing officer in conducting the hearing was found to be unsubstantiated in the record.

        The hearing which is the subject of this proceeding was held on May 31, 1995. It was held at respondent's request because its attorney had concluded that a school district was obligated to initiate a hearing when a parent of a child with a disability withdraws consent to the child's evaluation by the school district's CSE. Most of the hearing consisted of a colloquy among petitioner, respondent's attorney and the hearing officer concerning the meaning of petitioner's letter of April 9, 1995. Petitioner asserted that he had "conditionally rescinded" his approval for the CSE to do educational evaluations of his son. He also stated that:

"I have only rescinded it [his consent] to the extent of requiring that I be provided with written notification in advance of any such evaluations, simply because it is the practice of this school system to ignore those parts of Federal and State regulations which require that kind of notification be provided in advance of any evaluation being done". (Transcript, page 27)

        In further colloquy, petitioner asserted his belief that Federal and State law accorded him the right to require that respondent obtain his written consent to proposed evaluations. Petitioner also asserted that he had been advised at the May 23, 1995 CSE meeting which was held to review the results of his son's triennial evaluation that the child had been evaluated on a daily basis and that he had been given no notice of such evaluations. The hearing officer asked petitioner to testify with regard to the alleged violation of his rights, but petitioner declined to do so. The CSE chairperson testified briefly about the child's triennial evaluation and the CSE meeting at which the triennial evaluation reports were discussed. Those reports were introduced into evidence. However, respondent's attorney revealed, and petitioner agreed, that petitioner had requested that another impartial hearing be held concerning the CSE's triennial evaluation meeting. Since that other hearing would be the appropriate forum to resolve any objection which petitioner may have to the child's triennial evaluation and the actions taken by the CSE at its meeting of May 23, 1995, I have not considered exhibits 7 through 11 in reaching my decision in this proceeding.

        Petitioner also challenged the hearing officer's appointment on the ground that the hearing officer had been appointed by respondent to conduct the hearing which was held on May 15, 1995, but not the hearing which was conducted on May 31, 1995. The hearing officer explained that the issue of petitioner's alleged recission of consent to evaluate his son had initially been included in the May 15, 1995 hearing, but it had been agreed that a separate hearing would be held before her at a mutually convenient time for the parties. Petitioner also challenged the hearing officer's impartiality on the ground that she had allegedly treated him unfairly at the hearing which was held on May 15, 1995. However, the hearing officer declined to recuse herself.

        In her decision, which was dated June 9, 1995, the hearing officer noted that a CSE is required by State regulation to arrange for an appropriate reexamination of each student with a disability at least every three years, for the purpose of determining the student's individual needs and continuing eligibility for special education (8 NYCRR 200.4 [e] [4]). She also noted that State regulation requires that the notice which a CSE provides to the parents of a child who has not previously been identified as having a disability, must include a request for the parents' consent to the child's proposed evaluation (8 NYCRR 200.5 [a] [2] [i]). The hearing officer found that respondent was not required to obtain petitioner's consent to conduct observations, assessments and evaluations of the child because the child had been previously identified as having a disability, after petitioner's consent had been obtained for the child's initial evaluation by the CSE when he was referred to the CSE in 1992.

        Petitioner contends that the hearing officer's decision should be annulled because the hearing officer was not appointed by respondent to conduct the hearing which was held on May 31, 1995. He asserts that the hearing officer was appointed to conduct a hearing with regard to the two issues which he raised in his two letters of April 7, 1995, and that respondent's attorney simply added the issue of petitioner's withdrawal of consent to the issues which were to be decided by the hearing officer. He further asserts that, in essence, the hearing officer was appointed by respondent's attorney.

        Federal regulation accords both parents and school districts the right to initiate hearings with regard to the evaluation, educational placement or provision of a free appropriate public education to a child with a disability (34 CFR 300.506 [a]). There is nothing in either Federal or State law which precludes the consolidation of issues raised by the respective parties for determination by a hearing officer in a single proceeding. In this instance, the issue of petitioner's withdrawal of his consent to his child's evaluation was joined with the two issues which petitioner had raised in his separate requests for hearings. By agreement, the issue of consent to evaluation was separated from petitioner's two issues at the hearing which was held on May 15, 1995. The transcript in that hearing reveals that the hearing officer would determine the issue of consent to evaluation in a separate hearing. Upon these facts, I find that there was no requirement for respondent to appoint this, or any other, hearing officer to conduct the hearing which was held on May 31, 1995. Therefore, I find that petitioner's contention that the hearing officer was not properly appointed is without merit.¹

        Petitioner also challenges the hearing officer's decision on the ground that the hearing officer exhibited her bias against him. He asserts that he was deprived of an opportunity to present his case at the prior hearing which was conducted on May 15, 1995. Petitioner made the same assertion in his appeal from the hearing officer's decision in that matter. His assertion was found to be without merit (Application of a Child with a Disability, Appeal No. 95-44). Upon review of the transcript of the hearing held on May 31, 1995, I find that there is no evidence that petitioner was treated unfairly by the hearing officer in this proceeding.

        Petitioner contends that the hearing officer ignored the provisions of Federal regulations in reaching her conclusion that respondent was not required to obtain his consent before evaluating his child. He refers to various provisions of the Federal regulations, but fails to refer to the portion of those regulations which is directly in point:

"(b) Consent: procedures if a parent refuses consent. (1) Parental consent must be obtained before--

(i) Conducting a preplacement evaluation; and

(ii) Initial placement of a child with a disability in a program providing special education and related services.

(2) If State law requires parental consent before a child with a disability is evaluated or initially provided special education and related services, State procedures govern the public agency in overriding a parent's refusal to consent.

(3) If there is no State law requiring consent before a child with a disability is evaluated or initially provided special education and related services, the public agency may use the hearing procedures in § § 300.506-300.508 to determine if the child may be evaluated or initially provided special education and related services without parental consent. If it does so and the hearing officer upholds the agency, the agency may evaluate or initially provide special education and related services to the child without the parent's consent, subject to the parent's rights under § § 300.510-300.513." (34 CFR 300.504 [b])

        As the regulation explicitly provides, parental consent is required before conducting a preplacement evaluation and before initially placing a child with a disability in a special education program. Parental consent is not required for subsequent evaluations or placements (16 EHLR 1076; Application of a Handicapped Child, 21 Ed. Dept. Rep. 403; Application of a Child with a Handicapping Condition, 27 id. 137). Therefore, parental consent is not required for a triennial evaluation (Application of the Board of Education, Garden City UFSD, 22 Ed. Dept. Rep. 580; Application of a Handicapped Child, 24 id. 147). Both Federal and State regulations permit a parent to withdraw his or her consent to a child's evaluation (34 CFR 300.500 [a] [3]; 8 NYCRR 200.1 [k] [3]). However, the revocation of a parent's consent to evaluate after a child's preplacement evaluation has been performed is ineffectual to preclude a CSE from performing subsequent evaluations (18 IDELR 534). Contrary to petitioner's assertion, the State regulatory provisions with regard to parental consent to evaluate are consistent with the Federal regulatory provisions. Therefore, I find that petitioner's contention that the hearing officer ignored the relevant Federal regulatory provisions with regard to parental consent to an evaluation is without merit.

        Petitioner also asserts that the hearing officer failed to address what petitioner believes to be a threat by respondent to withhold special education services from petitioner's child in retaliation for petitioner having commenced an action in United States District Court against respondent. He refers to statements made by respondent's attorney at the May 15, 1995 hearing and the May 31, 1995 hearing about the effect of petitioner's withdrawal of his consent to evaluate his child. After indicating that he was uncertain what the consequences were, respondent's attorney asked "...does that mean that [petitioner] also is seeking to not avail himself of the right of having special education services provided to [the child]?... It seems like you can't have it both ways." (Transcript, pg. 11). Given the context in which the remarks of respondent's attorney were made, I find that his rhetorical question is not evidence of any intention by respondent to withhold services from petitioner's child, and petitioner has not alleged or proven that respondent has in fact withheld any services.

THE APPEAL IS DISMISSED.