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Decision No. 13,869

Appeal of a STUDENT WITH A DISABILITY by his parents, from action of the Board of Education of the Washingtonville Central School District regarding an independent evaluation.

Decision No. 13,869

(February 13, 1998)

Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the alleged failure of the Board of Education of the Washingtonville Central School District ("respondent") to grant their request for an independent evaluation of their son at respondent's expense. The appeal must be sustained in part.

Petitioners' son has been identified by respondent's committee on special education ("CSE") as a student with a disability. At a meeting on January 7, 1997, with one of petitioners present, the CSE agreed to conduct an evaluation of the student by an expert in autism who is not a district employee. The CSE met again with petitioners on February 24, 1997 to conduct its annual review of petitioners' son. Following that meeting, the CSE chairperson received a letter from petitioners dated February 19, 1997, which requested an independent evaluation at public expense for their son by Dr. Michael Powers, Psy.D., of Connecticut. That same day, the CSE chairperson telephoned petitioners and left a message when unable to reach them.

In a telephone conversation on or about February 25, 1997, the CSE chairperson inquired as to what evaluation petitioners desired and the qualifications of the proposed evaluator, to ascertain whether the request met the criteria in respondent's policy. According to the CSE chairperson, petitioners agreed to provide the additional information if their request for an independent evaluation was to be pursued. Prior to hearing any response from petitioners, the CSE chairperson sent petitioners the report of Dr. Diane Twachtman-Cullen, the expert in autism who had conducted the evaluation of petitioners' son arranged by the CSE, and who reviewed the student's current program.

Because petitioners did not provide the additional information requested on February 25, 1997, the CSE chairperson presumed that they were not pursuing their request for an independent evaluation. It was not until petitioners commenced this appeal on June 24, 1997 that the CSE chairperson realized the request was not withdrawn. According to an affidavit by the CSE chairperson, the CSE is available to discuss the request but petitioners have never advised her of the evaluation they seek nor the qualifications of their proposed evaluator.

Petitioners seek an order directing respondent to fund an independent evaluation by Dr. Michel Powers, as requested in their letter of February 19, 1997. Respondent contends that the appeal should be dismissed because petitioners have failed to exhaust the administrative remedies pursuant to Education Law "4404 and 8 NYCRR 200.5(c), of requesting a CSE meeting to determine their request for an independent evaluation at public expense. Respondent also contends that the appeal should be dismissed because the Commissioner of Education lacks jurisdiction to hear the matter underlying this appeal, pursuant to Education Law "4404 and 8 NYCRR 279.1.

Education Law "310(7) authorizes the Commissioner of Education to decide appeals by an aggrieved party on a petition made in consequence of any official act or decision of any officer, school authorities, or meetings concerning any matter under the Education Law or any act pertaining to common schools. Although the State Review Officer has jurisdiction to review a determination of an impartial hearing officer (IHO) under Education Law "4404 and 8 NYCRR 279.1, there is no such determination in this case and, therefore, the Commissioner of Education retains jurisdiction to decide this matter. Nevertheless, I exercise that jurisdiction reluctantly here because the more appropriate remedy is an impartial hearing which may be requested with respect to any matter relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education to such child (Individuals with Disabilities Education Act (IDEA) 20 U.S.C. "1415(5)(6), Education Law "4404). An independent evaluation may be requested at public expense pursuant to Section 200.5 (a)(1)(vi)(a) of the Commissioner's Regulations which provides that:

[I]f the parent disagrees with the evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation. However, the school district may initiate an impartial hearing to show that its evaluation is appropriate and, if the hearing officer determines that the evaluation is appropriate, the parent has a right to an independent evaluation, but not at public expense;

When a board is presented with a request for an independent evaluation, it must either pay for the independent evaluation or initiate a hearing to establish that its evaluation is adequate (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 433). The regulation also implies that a board must act upon the parent's request in a reasonably prompt manner (Appeal of a Child Suspected of Having a Handicapping Condition, supra; Application of a Child with a Handicapping Condition, 28 id. 488).

If a parent believes that a delay by the school district in either agreeing to pay in advance for the independent evaluation or to initiate a hearing would deny the parent a publicly funded independent evaluation, the parent may request a hearing or file a complaint with the State Education Department's Office of Special Education Policy and Quality Assurance (OSERS Policy Letter, 17 EHLR 356 (1980); 16 EHLR 1080 (1990).

In this case, petitioners requested, in writing, an independent evaluation at public expense and identified the proposed evaluator by name, academic degree, and location of his practice. While additional information was needed to confirm his qualifications, I find that respondent did not take reasonable steps to obtain the information necessary to make a timely decision on whether to fund the independent evaluation. There is, for example, no evidence of any attempt by respondent to contact the proposed evaluator directly. While respondent apparently misunderstood petitioners' intent and believed they had withdrawn their request, respondent should have confirmed that fact in writing. Because factual issues remain that are best determined at an impartial hearing, such as the proposed evaluator's qualifications and the adequacy of the school district's own evaluation, respondent is hereby ordered to appoint immediately an impartial hearing officer to preside at an impartial hearing pursuant to Education Law "4404, 8 NYCRR 200.5, and to render a decision within forty-five days of the date of this order.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent appoint immediately an impartial hearing officer to preside at an impartial hearing to determine whether petitioner is entitled to an independent evaluation at public expense; and

IT IS FURTHER ORDERED that said impartial hearing officer render a decision not later than forty-five calendar days of the date of this order.

END OF FILE