96-052

         Petitioners appeal from the decision of an impartial hearing officer in a proceeding which the board of education initiated to determine its responsibilities with regard to petitioners' son, in light of petitioners' removal of the boy from respondent's schools, and their refusal to allow respondent's committee on special education (CSE) to obtain a triennial evaluation of the boy. The hearing officer found that the CSE had an obligation to prepare an individualized education program (IEP) for the boy, at least annually, but that petitioners were not required to accept any services offered by the CSE. Respondent cross-appeals from the hearing officer's decision, to the extent that it required respondent to continue preparing IEPs for the child. The appeal must be dismissed. The cross-appeal must be dismissed.

        At the hearing in this proceeding, which was held on April 22, 1996, petitioners, who were assisted by an advocate, and respondent's attorney submitted a stipulation regarding the facts in this case. No testimony was taken at the hearing. The parties stipulated that the child had entered respondent's kindergarten in September, 1991. He was initially referred to the CSE on or about November 24, 1992. On or about January 20, 1993, the CSE recommended that petitioners' son be classified as hard of hearing, and that he receive resource room services for three hours per week and speech/language therapy in a small group three times per week. Petitioners accepted the CSE's recommendation.

        On or about November 17, 1994, the CSE recommended that the child's classification be changed to learning disabled, and that he be placed in a 15:1 self-contained special education class. The CSE also recommended that the child receive speech/language therapy in a group twice per week. Petitioners did not accept the CSE's recommendation, but they did not initiate an impartial hearing to challenge the CSE's recommendation. Instead, they unilaterally placed their son in the Brendan Montessori School, a private school which has not been approved by the State Education Department to provide instruction to children with disabilities.

        On May 17, 1995, the CSE met to prepare the child's IEP for the 1995-96 school year. Although invited to attend the CSE meeting, petitioners and the child's private school teacher did not participate in the CSE meeting. The CSE recommended that the child remain classified as learning disabled, and that he be placed in a 15:1 special education class, with speech/language therapy in a group twice per week. Petitioners decided to keep their son in the Brendan Montessori School, but did not request that a hearing be held to review the CSE's recommendation.

        On September 27, 1995, the CSE notified petitioners of its need to conduct a triennial evaluation of the child (See 34 CFR 300.534; 8 NYCRR 200.4 [e][4]). However, petitioners declined to permit the CSE to conduct the child's triennial evaluation. In a letter dated November 3, 1995, a representative of the Brendan Montessori School advised the CSE that the school was using the Orton-Gillingham approach to teach reading and spelling to the child, and that his reading skills were almost on grade level. The representative indicated that the child was having some difficulty mastering the multiplication table, but was making progress in mathematics. She opined that the child appeared to have a delay in the development of his receptive language skills, and suggested that the child receive a speech/language evaluation.

        On November 28, 1995, respondent's CSE chairperson wrote a letter to petitioners, in which she reiterated the CSE's need to evaluate the child. By letter dated December 15, 1995, the child's father informed the CSE chairperson that petitioners would be willing to pay for the cost of any evaluation which might be required by Federal or State law, and they would make the results of the evaluation available to the CSE. He further informed the CSE chairperson that petitioner would continue to pay for the cost of their son's education, as well as any additional services which he might require. The child remained in the Brendan Montessori School, at petitioners' expense. The private school's representative wrote a second letter, dated February 22, 1996, in which she revealed that the child had been privately evaluated by a speech/language therapist, and that petitioners had indicated their willingness to pay for whatever speech/language therapy the child might require. She also indicated that petitioners did not wish to have respondent evaluate the child, or provide any service to him. The representative asserted that the child exhibited some distractibility, impulsivity, and attention demanding behavior, but that he was doing well in all areas of the school's curriculum.

        Respondent's staff made further attempts to persuade petitioners to have their son evaluated by the CSE, but petitioners would not agree to do so. On or about February 20, 1996, respondent initiated this proceeding and appointed a hearing officer. A hearing was scheduled to take place on March 11, 1996, but was adjourned at petitioners' request until April 22, 1996.

        As noted above, the parties presented the hearing officer with a stipulation as to the facts. Respondent asked the hearing officer to find that respondent had met all of its statutory obligations to evaluate and provide special education services to petitioners' son, and to further find that the child was not entitled to receive special education services because of petitioners' refusal to allow the CSE to evaluate the child, and their expressed wish not to receive any services from respondent. Petitioners' lay advocate asserted that petitioners wanted no further involvement with respondent's school system, and that respondent had no legal right to intrude upon the child's education in the Brendan Montessori School. The advocate indicated that if the stipulation had not been agreed upon, she would have moved to dismiss the proceeding on the ground that respondent lacked standing to initiate the proceeding. The hearing officer then closed the hearing.

        The hearing officer rendered his decision on June 6, 1996. He found that the parties had stipulated that petitioners' son was a child with a disability who was in need of special education. He noted that Federal regulation (34 CFR 300.122) required each State to indicate in its state plan the policies and procedures which it had undertaken to ensure that a free appropriate public education (FAPE) is available to all children with disabilities between the ages of three and twenty-one. He further noted that New York's policies and procedures for providing a FAPE to each child were set in Article 89 of the Education Law and 8 NYCRR Part 200. The hearing officer found that each CSE was required to review at least annually the status of each child with a disability, pursuant to 8 NYCRR 200.4 (e) and that a CSE could not be relieved of its obligation to conduct an annual review. He also found that neither Federal nor State regulation required parental consent for the re-evaluation of a child who had previously been identified as a child with a disability (34 CFR 300.504 [1]; 8 NYCRR 200.5 [[b][1]). The hearing officer noted that if a school district has offered a FAPE to a child with a disability, but the child's parents unilaterally enroll the child in a private school, the school district is not required to pay for the child's education, but must provide special education and related services (34 CFR 300.403 [a]).

        The hearing officer held that respondent's CSE must continue to prepare IEPs for the child, even if petitioners choose not to participate in the IEP planning process. The hearing officer also held that respondent must continue to comply with all due process requirements, and that it was not required to provide any educational services which petitioners declined to accept.

        Petitioners acknowledge that their son has a language disorder, and that he had previously been identified by respondent's CSE as a child with a disability. They assert that they have paid for the child's tuition in the private school, as well as the cost of any related services which he required and his transportation to the school. They further assert that they have not been involved with respondent since November, 1994, and that they do not seek any assistance or reimbursement from it. Nevertheless, they were invited to attend a CSE meeting to be held on July 24, 1996.

        Petitioners assert that respondent had no legal standing to initiate this proceeding, and that respondent failed to comply with the State regulatory requirement that they be given notice of the hearing (8 NYCRR 200.5 [c]). I note that respondent acknowledges that it did not provide the requisite notice, but it argues that petitioners should not be allowed to raise the issue in this appeal because they did not raise it at the hearing. Respondent further argues that petitioners were not harmed by its failure to give notice. Petitioners contend that they have the right to privately educate their son, and that there is no requirement that respondent make special education services available to their child.

        I will first consider petitioners' contention that the hearing officer lacked jurisdiction in this proceeding because respondent had no legal right to initiate a hearing. The relevant Federal regulation, 34 CFR 300.506 (a), provides that either a parent or a "public educational agency" may initiate a hearing with regard to the initiation or change in the identification, evaluation or educational placement of a child, or the provision of a FAPE to the child. This proceeding arguably relates to the triennial evaluation of petitioners' son, which the CSE is obligated to perform if the child is to receive appropriate special education services under Federal and State law. However, it does not follow that respondent automatically has a right to initiate a hearing (Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Disability, Appeal No. 96-38). I note that at the hearing in this proceeding, respondent's attorney asked the hearing officer to find that petitioners' son was not entitled to special education services solely because his parents had not cooperated with respondent's CSE by refusing to allow the CSE to evaluate the child (See DuBois v. Connecticut State Board of Education, 727 F. 2d 44 [2d Cir., 1984]; Andress v. Cleveland Independent School District, 64 F. 3d 176 [5th Cir., 1995]).

        Although there is no question that respondent's CSE has the right to determine who shall evaluate the child for it (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1983]), the issue is whether the CSE must perform an evaluation, in light of petitioners' avowed intention not to accept any services from respondent. The parents of a child with a disability have the right to reject the services offered by a board of education (34 CFR 300.403). However, the question remains whether the board of education in that situation is relieved of its responsibility to evaluate the child, and to offer the child appropriate special education services. The U.S. Department of Education has informally opined that:

" Public agencies are not excused from their obligation under Part B to provide a free appropriate public education [FAPE] because a parent has withheld consent to a required procedure or action, unless the public agency has taken the steps necessary to resolve the matter through voluntary means acceptable under [Part B], or through those procedures available for resolving parental withholding of consent ... it is appropriate for the public agency to use informal means initially ... However, if these informal means prove unsuccessful, the public agency must use formal means, such as the due process proceedings under 34 CFR ''300.506-300.512, to resolve the parental revocation of consent, if the public agency continues to believe that the evaluation, placement, or services in question are needed in order for the child to receive FAPE." (18 IDELR 534)

        I must note that the aforesaid opinion was rendered in the context of an inquiry about a parent who wished to remove his child from a special education program, but had not requested that an impartial hearing be held. In the instant case, the child is no longer enrolled in respondent's schools. Nevertheless, respondent is obligated to identify and evaluate each child with a disability who resides within its jurisdiction (20 USC 1414 [a][1][A]; Section 4402 [2]). I find that respondent had the right to initiate the hearing in this proceeding.

        Although I do not condone respondent's failure to provide the requisite notice of the hearing to petitioners, I am not persuaded that respondent's omission affords an adequate basis for annulling the hearing officer's decision. The hearing was adjourned at petitioners' request to afford them an opportunity to obtain assistance in representing themselves. When the hearing was held, petitioners were assisted by a lay advocate, who adequately explained their position to the hearing officer.

        Petitioners challenge the substance of the hearing officer's decision on the ground that it is inconsistent with their right not to avail themselves of the services provided by respondent. They argue that the hearing officer erred by relying upon the provisions of 34 CFR 300.403 for the proposition that respondent is required to make services available to their son, because 34 CFR 300.403 does not apply to their child. Petitioners base their argument upon the fact that 34 CFR 300.400 allegedly provides that the provisions of 34 CFR 300.401 - 300.403 apply only to children placed in a private school by a school district. In fact, 34 CFR 300.400 indicates that the provisions of 34 CFR 300.401 - 300.402 apply to children who have been placed in private schools by their school districts. 34 CFR 300.403 (a) provides, as the hearing officer indicated, that respondent is required to make special education services available to a child who has been placed by his parents in a private school. To do so, respondent must have current information about the child, which a triennial evaluation would provide.

        In its cross-appeal from the hearing officer's decision, respondent argues that the hearing officer erred in finding that it was required to prepare an IEP for the child on an annual basis. For the reasons which I have just indicated with regard to petitioner's appeal, I find that the hearing officer correctly determined that respondent's CSE must continue to review the child's needs, and must offer him appropriate services, on an annual basis.

        THE APPEAL IS DISMISSED. 

        THE CROSS-APPEAL IS DISMISSED.