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Decision No. 14,314

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of White Plains regarding an independent evaluation.

Decision No. 14,314

(February 25, 2000)

Family Advocates, Inc., attorneys for petitioner, RosaLee Charpentier, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Ralph DeMarco, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the alleged failure of the Board of Education of the City School District of the City of White Plains ("respondent") to grant her request for an independent evaluation of her son at respondent's expense. The appeal must be sustained in part.

Petitioner's son is fourteen years old and attends the White Plains Middle School. He has been identified by respondent's committee on special education ("CSE") as a student with a learning disability. On February 10, 1999, a triennial psychological evaluation was conducted by Dr. Arthur Segreti, one of respondent's middle school psychologists. In a letter dated April 30, 1999, petitioner asked respondent to do "independent testing" of her son. In June 1999, respondent arranged for a neuropsychological evaluation to be conducted by Dr. Richard Babb, a consultant for a local Board of Cooperative Educational Services ("BOCES"). However, this evaluation was never conducted due to petitioner's objection expressed in a letter dated September 28, 1999.

By letter dated October 5, 1999, the director of special education denied petitioner's October 1, 1999 request that respondent pay for an independent evaluation of her son conducted during the summer of 1999. The reason stated for the denial was petitioner's failure to cooperate with respondent's attempt to have Dr. Babb conduct a neuropsychological evaluation of petitioner's son. Petitioner denied failing to cooperate with respondent in a letter dated October 15, 1999, but confirmed declining to consent to an evaluation by "Dr. Babb who works for the school district… and is therefore not an independent educational evaluator" and who "is known by parents as not being impartial." Petitioner commenced this appeal on November 4, 1999, seeking payment for an independent evaluation to be conducted by Dr. Marian Rissenberg.

Petitioner contends that respondent's delay in approving petitioner's request for an independent evaluation at public expense or scheduling an impartial hearing to discuss the matter is a violation of the Individuals with Disabilities Education Act ("IDEA").

Respondent contends that it has no reason to initiate an impartial hearing to show that its evaluation is appropriate because petitioner's lack of cooperation has prevented it from conducting its own neuropsychological evaluation. Respondent also contends that petitioner is not entitled to an independent evaluation by the doctor of her choice because the choice of doctor is within respondent's discretion. Respondent further contends that its Independent Evaluations Policy would not allow reimbursement of the approximately $3,000 fee charged by Dr. Rissenberg because it is unreasonable, in view of Dr. Babb's fee of $1,608.

An independent evaluation may be requested at public expense pursuant to Section 200.5(g) of the Commissioner's Regulations which states in pertinent part:

(g) Independent education evaluations. (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense.

  1. If requested by the parent, the school district shall provide to parents, information about where an independent educational evaluation may be obtained, and the school district's criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.
  2. 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, to the extent those criteria are consistent with the parent's right to an independent evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.
  3. If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent's reason why he or she objects to the public evaluation.
  1. The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
  1. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.
  2. If the hearing officer determines that the evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has a right to an independent evaluation, but not at public expense.

In this case, petitioner requested, in writing, an independent evaluation at public expense and identified the proposed evaluator. Respondent has neither ensured that an independent evaluation is provided at public expense nor initiated an impartial hearing.

On the record before me, it is factually unclear whether or not the proposed independent evaluation meets respondent's criteria, the extent of petitioner's cooperation with respondent's evaluation and the adequacy of respondent's evaluation with or without a neuropsychological evaluation by Dr. Babb.

The proper remedy to resolve a dispute over a request for an independent evaluation is an impartial hearing. Respondent has an obligation to initiate an impartial hearing upon its denial of petitioner's request for an independent evaluation at public expense. Similarly, petitioner has the right to request a hearing if a delay by respondent in either agreeing to pay in advance for the independent evaluation or to initiate a hearing would deny her a publicly funded independent evaluation (Appeal of a Student with a Disability, 37 Ed Dept Rep 320, Decision No. 13,869). Therefore, because the proper remedy is clear and is within the authority of respondent to provide, 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 from the date of this order.

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