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Decision No. 12,770

Appeal of ANTONIO and JANET J. from action of the Board of Education of the Arlington Central School District regarding reimbursement for a medical examination.

Decision No. 12,770

(August 5, 1992)

Raymond G. Kuntz, P.C., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from respondent's denial of their request for reimbursement for the cost of a medical evaluation they obtained for their daughter. The appeal must be dismissed.

Petitioners' daughter, a student in respondent's district, began the 1989-90 school year in the seventh grade at Arlington Middle School but, due to an allergic condition, was provided homebound instruction for part of the school year. Petitioners had their daughter tested at an Environmental Health Center in Texas where she was diagnosed as having multiple chemical sensitivities (MCS). In an attempt to find a proper placement for petitioners' daughter, the district referred her to its committee on special education (CSE) in May 1990. At the time, petitioners withheld consent to enable the CSE to evaluate their daughter and the CSE found the medical information provided by the parents from the specialist from Texas insufficient to determine whether the child had a handicapping condition. Although the CSE did not classify the student, it offered to pay for medical and psychiatric examinations as part of its evaluation. Petitioners were given the names of four doctors from whom to choose, but indicated no interest in pursuing the evaluation.

In response to petitioners' renewed request for homebound instruction, the CSE chairperson wrote to petitioners on August 8, 1990, renewing the district's offer to pay for medical and psychiatric evaluations and agreeing to reconvene the CSE in September. The letter specifically confirmed the district's offer, giving the same choice of two physicians in New York qualified to provide an allergy consultation, and two others to conduct a psychiatric evaluation. On September 12, 1990, two days before the scheduled CSE meeting, petitioners informed the school principal in writing that, due to their daughter's medical condition, she would not attend classes in September and insisted that her condition, as described in previously submitted medical reports, required homebound instruction.

At the CSE meeting on September 14, 1990, petitioners indicated that they did not want their daughter classified as a child with a handicapping condition and refused consent for any evaluation by the physicians suggested by the district. The CSE agreed with petitioners that the student did not require special education, because the program at Arlington Middle School was appropriate if she attended school regularly. As a result, the CSE determined that the student was not a child with a handicapping condition. The CSE's final action was confirmed in a letter to petitioners dated September 18, 1990.

In response to petitioners' request for homebound instruction, the superintendent wrote to them on September 18, 1990. In that letter, the superintendent confirmed that although the CSE had found their daughter ineligible for special education, she could receive home tutoring pursuant to Education Law '903, if her medical condition rendered her unable to attend school. Concluding that the medical information supplied by petitioners from the Texas clinic was not sufficient under '903 to determine this student's need for homebound instruction, the superintendent requested that petitioners provide a health certificate from a New York licensed physician. The superintendent informed petitioners that if they did not present the certificate or have their daughter attend school within fifteen days, the matter would be referred to Child Protective Services.

On September 20, 1991, petitioners wrote to the superintendent, again demanding homebound instruction for their daughter. On September 27, 1990, a New York State licensed physician wrote to the superintendent requesting home teaching for this student based on his preliminary consultation, and promised to send a comprehensive report on her condition as soon as he completed his full evaluation. On September 28, 1990, petitioners hand delivered to the superintendent another letter asking that she inform them immediately whether the district would pay for that evaluation, including all related expenses. In their letter, petitioners explained that since the physicians recommended by the CSE were unacceptable to them, they had scheduled an appointment with their own physician for October 2, 1990. Instead of contacting petitioners, respondent's counsel states in an affidavit that he telephoned the physician prior to October 2 and informed him directly that the district would not pay for the examination. The examination was conducted, as scheduled, on October 2, 1990 and the medical report was forwarded to the superintendent on October 22, 1990. Respondent accepted the physician's report as a valid medical certificate under Education Law '903 and agreed to provide the student with homebound instruction for the 1990-91 school year.

In a letter to the superintendent dated January 21, 1991, petitioners requested $1,108.66 in reimbursement for the October 1990 medical examination. By letter dated March 8, 1991, respondent denied petitioners' request. Petitioners commenced this appeal on August 2, 1991.

Petitioners base their claim for reimbursement on the district's demand for a medical certificate pursuant to Education Law '903. Petitioners argue that they relied upon the district's previous offer to pay for CSE evaluations and assumed that because the district required a '903 certificate, it would also agree to pay for the necessary examination.

Respondent contends that it has no obligation to reimburse petitioners for obtaining a medical examination under Education Law '903. Respondent argues that, unlike its obligation to offer a free evaluation for a child referred to the CSE, it has neither an obligation nor the authority to bear the cost of an examination arranged by parents for purposes of a '903 medical certificate. Respondent also contends that petitioners were fully informed that the CSE process had been completed and that the superintendent's request for an examination pursuant to Education Law '903 was unrelated to the CSE's determination. Respondent also contends that the petition is untimely.

An appeal to the Commissioner pursuant to Education Law '310 must be commenced within thirty days of the action complained of (8 NYCRR '275.16). Although a late petition may be excused for good cause, the reason for any delay must be set forth in the petition (Matter of Goldberg, 29 Ed Dept Rep 476; Matter of Strober, 29 id. 459; Application of a Child with a Handicapping Condition, 29 id. 240). Petitioners commenced this appeal on August 2, 1991, nearly five months after receiving notice of respondent's denial of their request for reimbursement. Since petitioners provide no explanation for their delay, the appeal must be dismissed as untimely (Application of a Child With a Handicapping Condition, 30 Ed Dept Rep 262; Application of Matulsky, 29 id. 157; Matter of Appling, 28 id. 330).

Even if the appeal were timely, I would be constrained to dismiss it on the merits. A school district is not required to reimburse parents for medical certifications submitted pursuant to Education Law '903, which provides in relevant part:

A health certificate shall be furnished by each pupil in the public schools upon his entrance in such schools, and by each child entering the first, third, seventh and tenth grade thereof. An examination of any child may be required by the local school authorities at any time in their discretion to promote the educational interests of such child. Each certificate shall be signed by a duly licensed physician who is authorized to practice medicine in this state, and shall describe the condition of the pupil when the examination was made, which shall not be more than ninety days prior to the presentation of such certificate, and state whether such pupil is in a fit condition of bodily health to permit his or her attendance at the public schools. ... If such pupil does not present a health certificate as herein required, the principal or teacher in charge of the school shall cause a notice to be sent to the parents of such pupil that if the required health certificate is not furnished within fifteen days from the date of such notice, an examination will be made of such pupil as provided herein.

Although Education Law '903 requires the district to conduct such examinations where the parent fails to do so, the law requires the parent, in the first instance, to furnish the examination to the district. Since petitioners did just that, and, in fact, demonstrated repeatedly their refusal to cooperate with the district's offers to arrange for an evaluation at public expense, I find their claim for reimbursement without merit. Moreover, because they withheld consent to allow the CSE to conduct an evaluation and refused to cooperate with the district's attempt to arrange for outside evaluations at district expense, the parents have no basis for claiming reimbursement. The law is clear. The right to reimbursement for an independent evaluation of a child before the CSE is conditioned upon a parent's disagreement with the district's evaluation (8 NYCRR '200.5[a][1][vi][a]). Consequently, even if petitioners' request had been made in the context of the CSE process, they would have no legal basis to claim entitlement to reimbursement pursuant to 8 NYCRR '200.5, since they never allowed the district to conduct an evaluation (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 87; Matter of a Handicapped Child, 21 id. 213, 216).

I have considered petitioners' other contentions and find them to be without merit.