97-029

       Petitioner, the Board of Education of the Wappingers Central School District, appeals from the decision of an impartial hearing officer which held that petitioner had, in effect, entered into an agreement with respondent to have a particular neurologist evaluate respondent's son, and that petitioner's Coordinator of Special Education had breached the alleged agreement by insisting that another neurologist should evaluate the child. He ordered petitioner to contract with the neurologist whom had previously been agreed upon by the parties. Petitioner also appeals from the hearing officer's finding that petitioner, "...in all probability..." had violated the child's confidentiality rights by sending the boy's records to the other neurologist. Respondent, the child's mother, cross-appeals from the hearing officer's determination that although petitioner's committee on special education (CSE) had failed to conduct an annual review of the boy within one year after its review on January 25, 1995, respondent had tacitly waived a timely annual review in a subsequent stipulation with petitioner regarding the boy's educational placement for the 1995-96 school year. The appeal must be sustained. The cross-appeal must be dismissed.

        Respondent asks that the appeal be dismissed because petitioner allegedly failed to serve the petition in the manner prescribed by the Regulations of the Commissioner of Education. The record indicates that a process server attempted for the second time to serve its notice of petition and petition upon respondent at her home on April 21, 1997. The process server was allegedly told by the sixteen year old boy who is the subject of this proceeding that respondent was home, but she could not be disturbed. He also reportedly agreed to deliver the process server's papers to respondent, who does not claim that she did not promptly receive the papers which the process server left with her son. I find that respondent's claim that service of process was defective because petitioner's papers were not left with a person of suitable age and discretion (see 8 NYCRR 275.8 [a]) is without merit (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35).

        Respondent also asks that the appeal be dismissed as untimely because it was reportedly not instituted within thirty days after the board of education received the hearing officer's decision (see 8 NYCRR 279.2). However, there is no evidence in the record before me to establish when the board of education received the hearing officer's decision. In the absence of any proof of when petitioner received the hearing officer's decision, which was dated March 7, 1997, or of any proof that respondent has been harmed by petitioner's alleged delay, I will dismiss respondent's affirmative defense of untimeliness.

        Respondent's sixteen year old son has been classified as learning disabled. The boy has reportedly been diagnosed as having an attention deficit hyperactivity disorder, and has had at least one seizure. He reportedly has attentional, organizational, and motivational difficulties associated with his attention deficit hyperactivity disorder. His classification as learning disabled is not at issue in this proceeding. In elementary school, respondent's son received speech/language therapy, as well as specialized instruction in reading. However, he has reportedly had academic difficulty throughout elementary and middle school.

        On October 24, 1995, the parties entered into a stipulation at an impartial hearing to place the child, at petitioner's expense, in the Pine Ridge School, a private school in Williston, Vermont. That placement was for the 1995-96 school year. It was also agreed that:

" ... the Wappingers Central School District will arrange ... appropriate dates for annual review under the auspices of the Wappingers Committee on Special Education to help determine the extent and nature of programming that will be appropriate for [the child] for the 1996-97 school year and thereafter, if necessary." (Exhibit 5)

        Respondent's son was enrolled in the ninth grade of the Pine Ridge School during the 1995-96 school year. Although he enjoyed some academic success in the private school, the Pine Ridge School ultimately determined that it could not meet the boy's needs because of the manifestation of his ADHD in school. The Pine Ridge School indicated that it would not accept the boy as a student for the 1996-97 school year, and it reportedly recommended that the boy receive psychiatric and neurological evaluations.

        On July 9, 1996, petitioner's CSE conducted its annual review of respondent's son. The CSE recommended that the boy remain classified as learning disabled, and that a residential placement be sought for him for the 1996-97 school year. It also recommended that the child receive three hours of tutoring per week for four weeks during the summer, and that he receive instruction at home in the fall, if a residential placement had not been obtained for him. In addition, the CSE recommended that the boy receive a neurological evaluation and a psychological evaluation. Respondent signed forms consenting to the release of information about her son to one physician for the psychiatric evaluation, and to another physician for the neurological evaluation.

        The physician whose name appeared on the form which respondent signed with regard to her son's neurological evaluation was Dr. Jerome Block. At the July 9, 1996 CSE meeting, respondent was advised that the CSE needed to have additional information to contact Dr. Block to arrange the evaluation. Respondent indicated she would supply that information. When the CSE chairperson sought that information from respondent on the next day, one of respondent's sons supplied an address and telephone number for Dr. Block. The secretary of the CSE chairperson thereafter began the process of attempting to contact Dr. Block. Apparently, the telephone information supplied to the CSE chairperson was inaccurate. On August 15, 1996, the secretary wrote to Dr. Block regarding her prior attempts to contact him. However, she apparently did not receive a response until on or about September 16, 1996, when Dr. Block apparently advised another employee of petitioner's special education office that he would not perform a neurological evaluation for respondent's son because he did not evaluate persons who were under nineteen years of age.

        In the interim, respondent was advised at a CSE meeting on September 3, 1996 that Dr. Block had not responded to the district's inquiries. The CSE chairperson suggested that someone else be considered to do the evaluation. Respondent offered the name of Dr. Arnold Gold of Columbia Presbyterian Hospital in New York City. The CSE chairperson asked respondent for Dr. Gold's telephone number, and stated that "We will check on that today then" (Exhibit O, page 6). The CSE met again on September 19, 1996. Petitioner's Coordinator of Special Education asked the CSE chairperson about the status of the boy's neurological evaluation. The CSE chairperson indicated that his secretary was " ... trying to get something set up with Dr. Gold ... " (Exhibit P, page 44). A representative of petitioner's special education office contacted Dr. Gold's office, and ascertained a fee schedule, and date upon which Dr. Gold could perform the neurological evaluation. At the request of the CSE chairperson, a special education contract request form was sent to petitioner's office of special education to engage Dr. Gold's services to perform the evaluation.

        On or about October 1, 1996, petitioner's Coordinator of Special Education stopped the processing of the proposed contract for Dr. Gold, and she directed that a list of three physicians who could perform the evaluation be created, along with information about their fees, and the earliest dates when they could evaluate the child. She determined that a Dr. Kutcher of Fishkill, New York could perform the requested evaluation by October 11, 1996 for a fee of $400. Dr. Gold could perform the examination on October 22, 1996, for a scheduled fee of $500, and a Dr. Finkelstein of Sharon, Connecticut could perform the evaluation on October 25, 1996, for a fee of $500. Upon learning this information, the Coordinator of Special Education directed that a contract be prepared for Dr. Kutcher, whose fee was the lowest, and who had the earliest available appointment for an evaluation. Arrangements were made for Dr. Kutcher to evaluate respondent's son on October 11, 1996.

        On October 2, 1996, respondent was notified of the district's intention to contract with Dr. Kutcher for the preparation of the neurological examination. On the following day, respondent requested that an impartial hearing be held, because she believed that the school district had needlessly delayed her son's neurological evaluation, and it had improperly selected Dr. Kutcher to perform the evaluation. At the hearing, the impartial hearing officer determined that three issues required resolution: 1) was the annual review of the student done in an untimely fashion; 2) should the district be ordered to have the required neurological evaluation performed by Dr. Gold in New York City; 3) had the confidentiality of the student's records held by the district been violated or compromised when petitioner allegedly sent the boy's records to Dr. Kutcher.

        In his decision which was dated March 7, 1997, the hearing officer noted that it was undisputed that no annual review had been held between a CSE meeting on January 25, 1995, when the boy's IEP for the 1994-95 school year was reportedly reviewed, and July 9, 1996, when the CSE considered the boy's placement for the 1996-97 school year. He further noted Federal regulation required that a meeting to review a child's IEP be held "at least once per year" (34 CFR 300.343 [d]; see also 8 NYCRR 200.4 [e]). Although the hearing officer found that the CSE had failed to hold an annual review at least once per year, as required by regulation, he further found that the parties in their stipulation to place the boy in the Pine Ridge School contemplated that the CSE would hold its annual review after the child had attended private school for a reasonable period of time, rather than by January, 1996.

        With respect to the second issue before him, the hearing officer relied upon an audiotape recording of the July 9, 1996 CSE meeting to find that the CSE had merely asked respondent to suggest the names of the individuals who might perform her son's psychiatric and neurological evaluations. However, he further found that respondent was justified in believing that the CSE had subsequently agreed to be bound by her suggestions, when the CSE chairperson in September, 1996 again asked her to suggest the name of a neurologist to evaluate the child, after Dr. Block declined to evaluate the child. He noted that the CSE chairperson had asked petitioner's staff to send a contract to perform the evaluation to Dr. Gold, the neurologist whom respondent had suggested. The hearing officer noted that the Coordinator of Special Education Services had acknowledged that the school entity requesting that a contract be initiated was responsible for designating the individual who would perform the evaluation, and he rejected petitioner's contention that the Coordinator of Special Education Services was authorized to override the CSE's recommendation that petitioner contract with Dr. Gold. While the hearing officer acknowledged that a board of education has the right to select the individuals who will perform its student evaluations, he found that petitioner had, in effect, entered into an agreement with respondent to have Dr. Gold evaluate the child. He also faulted both parties for maintaining rather inflexible positions on the identity of the neurological evaluation which had precluded the prompt completion of the evaluation.

        The third issue which the hearing officer decided was whether petitioner had violated the child's confidentiality rights by allegedly sending personally identifiable data about him to Dr. Kutcher. The hearing officer noted that petitioner conceded that it was generally required to obtain the parent's consent to the release of information about the child to a third party, pursuant to 34 CFR 99.31, and that respondent had not given her consent to the release of information to Dr. Kutcher. He rejected petitioner's assertion that respondent had the burden of proving that any confidential information had been sent to Dr. Kutcher, and its contention that respondent's sole remedy for the alleged breach of confidentiality was to file a complaint with the U.S. Department of Education pursuant to 34 CFR 99.63. He therefore granted respondent's request for a subpoena to Dr. Kutcher to return the information which petitioner had reportedly sent to the neurologist.

        Petitioner contends that the impartial hearing officer erred as a matter of fact and as a matter of law in finding that it breached an agreement with respondent to have Dr. Arnold Gold perform the neurological evaluation. It asserts that the CSE chairperson merely asked respondent to suggest the names of individuals who might be available to evaluate her son, and that petitioner, acting through its Director of Special Education, had the right to determine who would evaluate the child. Petitioner asserts that nothing which its CSE chairperson did at the CSE meeting which was held on July 9, 1996, or which the chairperson and his staff did thereafter, would afford a rational basis for concluding that petitioner had entered into an agreement with respondent to have a specific individual perform the boy's neurological evaluation. It further asserts that the CSE's role is limited to making recommendations to the board of education (see Section 4402 [3][b] of the Education Law), which must approve any contract between the school district and a person or entity providing a service to the school district (see Section 1709 of the Education Law).

        It is well settled that boards of education have the right to select individuals or institutions to evaluate children with disabilities (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2d Cir., 1984]). In the event that a child's parent is dissatisfied with the evaluation performed for the CSE, the parent may obtain an independent evaluation at the school district's expense, subject to the school district's right to initiate a hearing to establish that its evaluation is appropriate (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi]). A CSE must also consider any evaluation material which a parent wishes to submit to the CSE (8 NYCRR 200.5 [a][1][v]). It should be noted that parental consent to an evaluation was required only for a child who had not previously been identified as having a disability (8 NYCRR 200.5 [b][1]).[1] Respondent's son had been previously classified as a child with a disability. The consent forms which respondent signed on July 9, 1996 were purportedly for the purpose of authorizing the release of the boy's records to the evaluators.

        The impartial hearing officer found that an agreement to have the neurological evaluation performed by Dr. Gold has been breached in this case. However, I find that the record does not support the finding that there was in fact a binding agreement. Respondent suggested that Dr. Gold might perform the evaluation, and the CSE chairperson indicated to her that he would explore that option. The record reveals that the CSE chairperson initiated the process to have Dr. Gold perform the evaluation. However, there is no evidence that respondent signed a form purporting to authorize the release of information to Dr. Gold, or that respondent took any action in reliance upon the alleged agreement. The doctrine of equitable estoppel may be applicable to school districts, (Matter of Greco v. Board of Education of the Patchogue-Medford Union Free School District, 98 A.D. 2nd 721, [2nd Dept., 1983]), but I find no equitable considerations in this case which would mandate the imposition of that doctrine. I must note that, while I find that petitioner had the right to select the individual to perform the child's neurological evaluation, my decision should not be construed as an endorsement of the rationale given by the Coordinator for Special Education in selecting Dr. Kutcher over Dr. Gold, or the manner in which petitioner's staff has handled this matter. Since I have found that petitioner had the right to select Dr. Kutcher for the evaluation, I will annul that portion of the hearing officer's decision which directed petitioner to contract with Dr. Gold for the evaluation.

        Petitioner also challenges the hearing officer's determination that petitioner had "probably" violated the child's confidentiality rights, and it asks that the hearing officer's determination to issue a subpoena duces tecum to Dr. Kutcher, requiring Dr. Kutcher to return the documents which he had allegedly received from petitioner be annulled. While petitioner has the right to select Dr. Kutcher to perform the boy's neurological evaluation, it must nevertheless comply with the confidentiality provisions of Federal regulation regarding the disclosure of personally identifiable information about a child (34 CFR 300.571). With certain exceptions, a board of education may not release such information without the consent of the parent. One of the exceptions is that personally identifiable data may be disclosed to " ... other school officials ... within the agency or institution whom the agency or institution has determined to have legitimate educational interests" (34 CFR 99.31 [a][i]). The United States Education Department has opined that a school district is not precluded from disclosing information about a child to "outside persons performing professional services as part of the operation of the institution" (22 IDELR 734). In this instance, Dr. Kutcher was to have performed a neurological evaluation for petitioner. I find that the facts of this proceeding do not support a finding that the child's confidentiality rights were violated.

        Respondent cross-appeals from the hearing officer's decision with regard to the CSE's alleged failure to perform a timely review of her son's educational program for the 1995-96 school year. She asserts that notwithstanding the parties' stipulation to place her son in the Pine Ridge School for the 1995-96 school year, the boy's IEP for the 1994-95 school year was still in effect because it was not revised or replaced with a new IEP. She further asserts that the Pine Ridge School furnished an IEP for the boy to petitioner, and that petitioner's CSE failed to review that IEP, or to create a new IEP. Respondent contends that her son was denied a free appropriate public education, because of the CSE's failure to prepare an IEP for the 1995-96 school year.

        I agree with respondent that her son should have had an IEP for the 1995-96 school year, notwithstanding the fact that he was placed in the Pine Ridge School by the stipulation which terminated an impartial hearing. However, I note that the parties provided in the stipulation that:

"Additionally, the Wappingers Central School District agrees that it will provide such further additional services as shall be determined by the Pine Ridge School to be necessary to implement the existing IEP and prepare for the next year's IEP over the summer of the year 1996;" (Exhibit 5)

        The "existing IEP" is not part of the record before me. However, it appears from their stipulation that the parties had agreed that additional services might be provided to the child, if they were recommended by the Pine Ridge School, which would presumably require an amendment of his IEP. Respondent has not identified any recommendation by the private school for additional services which petitioner ignored or failed to provide. I further note that respondent acknowledged at the hearing in this proceeding that her several claims with regard to her son's educational program for the 1994-95 and 1995-96 school years had been resolved by the stipulation in the prior proceeding. Respondent is well aware of her rights as a parent. The fact that she did not raise the issue of an alleged lack of an IEP until after the 1995-96 school year had ended belies her contention that her son was denied a free appropriate public education during the 1995-96 school year.

THE APPEAL IS SUSTAINED. THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled.