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Decision No. 12,702

Appeal of a CHILD WITH A HANDICAPPING CONDITION, by his parent, regarding the refusal of the Board of Education of the Washingtonville Central School District to pay for an independent evaluation.

Decision No. 12,702

(May 26, 1992)

Frank T. McCue, Jr., P.C., Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent’s refusal to pay for an independent evaluation for her son. Petitioner requests an order directing respondent to pay for the independent evaluation, despite respondent’s determination to establish the adequacy of its evaluation at an impartial hearing. The appeal must be dismissed.

On December 3, 1991, petitioner requested that respondent pay for independent neuropsychological and occupational therapy evaluations. On January 8, 1992, respondent’s committee on special education (CSE) convened to consider petitioner’s request. At that meeting, the CSE determined that since its evaluations were appropriate, it would not grant petitioner’s request. Petitioner repeated her request for an independent evaluation and on January 21, 1992, respondent board of education authorized initiation of an impartial hearing to establish that its evaluations were appropriate. A hearing officer was appointed on January 28, 1992. The hearing was initially scheduled for February 20, 1992 and with the consent of the parties proceeded on February 27, 1992.

Petitioner asserts that because respondent failed to hold an impartial hearing within 45 days of her request for an independent evaluation, she is entitled to an order directing respondent to pay for the independent evaluations she requests.

Respondent raises several defenses. Respondent asserts that the appeal must be dismissed because of defective service. Respondent also claims that the appeal is premature, because it is not taken from a decision of an impartial hearing officer. Finally, respondent contends that the board of education properly scheduled an impartial hearing in a timely manner.

Concerning respondent’s assertion that the petition was improperly served, the Commissioner’s regulation at " 275.8(a) requires that a petition be served by someone who is over 18 and not a party to the appeal. Since the record indicates that petitioner served respondent, and service by a party is improper, the appeal must be dismissed.

Regarding respondent’s contention that the appeal is premature, a board of education is required to either pay for an independent evaluation or schedule a timely hearing to establish that its evaluations are appropriate (8 NYCRR 200.5(vi)(a); See also Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 424). Since this appeal was commenced, respondent authorized an impartial hearing to establish the adequacy of its evaluations. By requesting an order compelling respondent to provide an independent evaluation at public expense, petitioner seeks to bypass the impartial hearing process initiated by respondent. Unlike the cases relied upon by petitioner in which respondent neither offered reimbursement for an independent hearing nor scheduled an impartial hearing, the record in this case indicates that respondent elected to hold an impartial hearing. Therefore, the appeal must be dismissed as premature in that it seeks an order for payment of an independent evaluation before the district has had the opportunity to establish the adequacy of its evaluation at an impartial hearing (Appeal of Child with a Handicapping Condition, 27 Ed Dept Rep 19; Matter of the Appeal of a Handicapped Child, 21 id. 369).

Even if the appeal were not dismissed on procedural grounds, petitioner’s claim that respondent failed to comply with "the 45 day rule" under 8 NYCRR 200.5(a)(1)(vi)(a) is without merit. The regulation at issue recognizes the rights of a school district to initiate an impartial hearing to demonstrate that its evaluation is appropriate in response to a request for an independent evaluation at public expense. Although petitioner argues that the Commissioner’s regulations also require that an impartial hearing officer issue a decision within 45 days of a parent’s request for reimbursement, the regulation is silent on the timing of a district’s response. Nonethless, a district must either schedule a timely hearing or reimburse a parent for the independent evaluation (Appeal of a Child Suspected of Having a Handicapping Condition, 29 Ed Dept Rep 112; Application of a Child Suspected of Having a Handicapping Condition, 28 id. 536; Application of a Child with a Handicapping Condition, 26 id. 439; Appeal of a Handicapped Child, 25 id. 185). Based upon the record before me, respondent’s actions do not constitute undue delay in scheduling the hearing to warrant an order directing respondent to pay for the cost of the independent evaluations she requested. The record indicates that respondent’s CSE properly scheduled a meeting to consider petitioner’s request. Thereafter, on January 21, 1992, the board of education determined not to provide independent evaluations and proceeded to initiate an impartial hearing which was underway by February 27, 1992.

THE APPEAL IS DISMISSED.

END OF FILE