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Decision No. 12,956

Appeal of ISRAEL M. GROSSBERG from action of the Board of Education of the City School District of the City of New York relating to a medical examination.

Decision No. 12,956

July 9, 1993

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Felicia Dunn-Jones, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the authority of the Board of Education of the City of New York ("respondent") to require him to submit to a psychological examination. The appeal must be dismissed.

Petitioner, a tenured teacher appointed by the New York City Board of Education in 1967, is licensed to teach social studies. In December 1992, petitioner began exhibiting behavior toward colleagues, school personnel and parents that prompted the superintendent to schedule a medical examination pursuant to Education Law '2568. Following a physician's examination on February 1, 1993, respondent's medical bureau scheduled a follow-up appointment on April 1, 1993 with a psychologist.

Petitioner contends that respondent lacks authority to require him to submit to a psychological evaluation pursuant to Education Law '2568, since a psychologist is not authorized to perform a medical examination. He seeks an order excusing him from the scheduled examination. Since respondent did not respond to petitioner's allegations, the allegations set forth in his petition will be deemed to be true (8 NYCRR '275.11; Appeal of Matis, 32 Ed Dept Rep 198).

Education Law '2568 authorizes the superintendent of schools of a city having a population of one million or more to require any person employed by the board of education "to submit to a medical examination by a physician or school medical inspector in order to determine the mental or physical capacity of such person to perform his duties." The Commissioner previously concluded that pursuant to Education Law '913, follow-up visits are authorized when necessary to determine a teacher's competence (Appeal of Almeter, 30 Ed Dept Rep 230). Further, the Commissioner has recognized that since failure to submit to a psychological examination may prevent the board of education from carrying out its duty under Education Law '913, a teacher's refusal to submit to such an examination is legitimate grounds for disciplinary action (Matter of the Board of Education of the Valhalla UFSD, 19 Ed Dept Rep 259; aff'd sub nom). Therefore, under Education Law '913, the Commissioner has recognized that a psychological evaluation conducted by a psychologist is an appropriate mode of determining a teacher's mental capacity. Education Law '913 extends to every school district except the City of New York and Education Law '2568 extends this same authority to the City. I find the rationale used in deciding cases pursuant to '913 should be used in deciding cases pursuant to '2568, which is a parallel section of law. As a result, I find respondent's request that petitioner undergo a follow-up examination with a psychologist within respondent's authority. In any case, as long as the psychological evaluation was ordered by the physician or school medical inspector as part of his/her overall examination, those additional tests or evaluations are properly deemed part of the physical examination authorized by Education Law ''913 and 2568.

THE APPEAL IS DISMISSED.

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