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Decision No. 12,618

Application to reopen the appeal of a CHILD SUSPECTED OF HAVING A HANDICAPPING CONDITION relating to evaluation procedures.

Decision No. 12,618

(December 19, 1991)

Neal Howard Rosenberg, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner, the Board of Education of the Hyde Park Central School District, seeks to reopen my decision in Appeal of a Child Suspected of Having a Handicapping Condition (30 Ed Dept Rep 433) which found that the board of education failed to follow certain procedures regarding the evaluation of a child who had been referred to its committee on special education (CSE) and awarded the parent reimbursement for the cost of independent evaluations. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education requires that an application to reopen be brought within 30 days after the date of the challenged decision. The decision in this appeal was rendered on June 5, 1991. The application to reopen the decision was initiated by service of a petition on July 11, 1991, more than 30 days after the date of the decision. The application, therefore, is untimely and must be denied.

Even if the application were timely, it would be denied. Pursuant to '276.8 of the Regulations of the Commissioner of Education, a party seeking to reopen a prior decision of the Commissioner of Education must show that the decision which is the subject of the application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made. The decision to reopen is in the sole discretion of the Commissioner (Application to reopen the appeal of the Board of Education of the Liverpool CSD, 29 Ed Dept Rep 275; Appeal of Gordon, 29 id. 126; Matter of Paradisin, 20 id. 291).

Petitioner claims that my prior decision was rendered under a misapprehension of fact because the decision indicates that the board of education treated the parent's referral to the CSE as an "initial" referral. Petitioner argues that the record indicates that school district officials treated the parent's referral as a "new" referral subsequent to a stipulation between the parties, but that they did not consider the referral an "initial" referral. Even if petitioner's argument that I misapprehended the facts when I characterized the district's treatment of the referral as an "initial" referral, rather than a "new" referral is correct, the misstatement would not affect the decision. In either case, the school district officials were required, under the circumstances presented, to obtain petitioner's consent for the evaluation or proceed to an impartial hearing to determine whether an evaluation without consent was warranted; the prior record indicates that they did neither. In addition, as noted in my prior decision, upon receipt of the parent's request for an independent evaluation, the district was required to either pay for the independent evaluation or proceed to an impartial hearing to establish the adequacy of its own evaluations. Again, the record indicates that the district took no action, thus entitling the parent to reimbursement for the independent evaluations that she had obtained. Petitioner's arguments in this application do not affect my rulings. Therefore, petitioner provides no basis for reopening the prior decision.

The remainder of petitioner's claims attempt to reargue the issues presented in the original appeal. An application for reopening is not intended to provide an opportunity for reargument of a prior decision (Application of Nicastri, 30 Ed Dept Rep 235; Appeal of Burke, 28 id. 205).