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Decision No. 13,092

Application to reopen the 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. 13,092

(January 7, 1994)

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

SHELDON, Acting Commissioner.--This is an application to reopen Appeal of Grossberg, 33 Ed Dept Rep 5, in which the Commissioner dismissed petitioner's challenge to the authority of the Board of Education of the City of New York ("respondent") to require him to submit to a psychological examination. This application must also be denied.

In the original appeal, petitioner contended that respondent lacked 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 sought an order excusing him from the scheduled examination. The Commissioner dismissed the appeal because failure to submit to a psychological examination could prevent a board of education from carrying out its duty pursuant to Education Law '2568 to determine the mental or physical capacity of a teacher to perform his or her duties. The Commissioner further held that a teacher's refusal to submit to such an examination is legitimate grounds for disciplinary action (Appeal of Grossberg, supra; Matter of the Board of Education of the Valhalla UFSD, 19 Ed Dept Rep 259; aff'd sub nom).

Petitioner has not demonstrated sufficient grounds to warrant reopening. Section 276.8 of the Regulations of the Commissioner of Education provides that such applications are addressed solely to the discretion of the Commissioner, and will not be granted in the absence of a showing that a decision was rendered under a misapprehension of the facts or that there is new and material evidence which was not available at the time the original decision was made.

Petitioner alleges that the Commissioner's decision should be reopened because it was rendered under a misapprehension of fact. In support, he asserts that the decision from which he appeals uses the term "parents" when in fact only one parent was involved, and that the decision referred to "school personnel" instead of "school security guard", thereby giving the false impression that he was referred for a psychological examination because of a more significant problem than actually existed. However, these facts, even if assumed true, would have no bearing on the disposition of this matter. Petitioner was referred to the Medical Bureau for a medical evaluation pursuant to Education Law '2568, which sets forth respondent's authority to ascertain the fitness of teachers to perform their duties. It is immaterial how many parents or exactly which school personnel were involved in respondent's ultimate decision to require such an examination. The fact remains that petitioner was asked to submit to a medical exam, and chose to challenge respondent's request in an appeal under Education Law '310. The initial decision correctly found that directing such exam was within respondent's authority.

In this application, petitioner also attempts to reargue the issue of respondent's statutory authority to require petitioner to submit to a psychological examination by submitting a satisfactory performance rating under the guise of new and material evidence. An application for reopening is not intended to provide an opportunity for reargument of a prior decision on the law (Application of Aarseth, 33 Ed Dept Rep 226; Application of Impellizzeri, 32 id. 295; Application of Ferris, 30 id. 444). In any event, the fact that petitioner received a satisfactory rating from his immediate supervisor is immaterial. The incidents that prompted the referral for a psychological evaluation occurred outside the classroom. In addition, as set forth in the original decision in this matter, Education Law '2568 requires school districts to determine the medical fitness of teachers. Therefore, this performance rating is not material to the issue of respondent's authority to require the examination in question.

THE APPLICATION IS DENIED.

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