Decision No. 12,822

(October 19, 1992)

Mid-Hudson Legal Services, Inc., attorney for petitioners, Rosalie Charpentier,

Esq., of counsel

Raymond G. Kuntz, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners request an order directing respondent to pay Katherine Schantz, an employee of a private school who is neither certified nor licensed in the State of New York, to conduct an independent psychoeducational evaluation of their son. Petitioners also request that respondent be directed to produce an alternate evaluator with Ms. Schantz' specific qualifications and experience who meets the private school's criteria and is located within the same geographic region. In addition, petitioners ask that I declare that respondent may not limit a parent's choice of a qualified independent evaluator when the district's list of independent evaluators is not exhaustive; and that respondent's policy of refusing to fund an independent evaluation by an otherwise qualified, non-state certified independent evaluator is too restrictive, results in disparate treatment and violates the Individuals with Disabilities Education Act. The appeal must be dismissed.

Petitioners' son is seven years old and classified by respondent's committee on special education (CSE) as learning disabled. He was initially referred to the CSE on April 14, 1992 and evaluated in April and May of 1992. At the CSE meeting held on June 23, 1992, petitioners expressed their dissatisfaction with the CSE's evaluation and requested an independent psychoeducational evaluation. Their request was confirmed by a letter from their attorney dated June 24, 1992. At a meeting held on July 17, 1992, the CSE agreed to provide an independent evaluation at public expense. The CSE chairperson sent a letter of confirmation July 27, 1992 which included a list of five suggested qualified evaluators.

Petitioners rejected the evaluators suggested by respondent and requested payment to Katherine Schantz to conduct the evaluation. By letter dated August 7, 1992, the CSE chairperson denied funds to enable Ms. Schantz to conduct the evaluation on the basis that she was not licensed or certified by New York State. In response, petitioners sent a letter to respondent's CSE chairperson asserting that, despite her lack of New York State certification, Ms. Schantz was "an ideal evaluator" and that their choice should not be limited to respondent's list. The CSE chairperson responded in writing on August 18, 1992 and clarified that respondent's list was not exhaustive or restrictive but that New York State certification is a qualification for any examiner evaluating a child at school district expense. By letter dated August 19, 1992, petitioners' representative requested that the superintendent issue a written decision by August 27, 1992 confirming respondent's school policy. On September 9, 1992, the director of pupil personnel confirmed the superintendent's support of the CSE chairperson's position after conferring with respondent's counsel and the State Education Department's regional associate. This appeal was commenced on September 11, 1992.

Petitioners contend that respondent's refusal to fund an independent evaluation conducted by the evaluator of their choice and its requirement that the evaluator have State certification is arbitrary and has no statutory basis. Petitioners also contend that since respondent's list of suggested evaluators is not exhaustive, parents must be given the opportunity to select an independent evaluator of their choice as long as the person is qualified and the fees reasonable.

Respondent contends that because the evaluator preferred by petitioners is uncertified and unlicensed in the State of New York, she is not qualified to perform an independent evaluation at public expense. Respondent contends that its suggested list of evaluators need not be exhaustive since it does not compel parents to choose evaluators exclusively from that list. In fact, respondent asserts that the only limitation placed on parents in selecting an independent evaluator is that the evaluator be "qualified."

Section 200.5(a)(1)(vi)(a) of the Regulations of the Commissioner of Education provides that the parent of a child with a handicapping condition who disagrees with the school district's evaluation has a right to obtain an independent educational evaluation at public expense (see also, 20 USC '1415(b)(1)(A) of the Individuals with Disabilities Education Act [IDEA]; 34 CFR '300.503). There is no dispute that respondent agreed to fund an independent psychoeducational evaluation for petitioners' son but imposed New York State certification or licensure as a minimal qualification for the evaluator. Federal regulation requires school districts to provide, on request, information about where an independent evaluation may be obtained (34 CFR '300.503[a][2]). Respondent provided that information to petitioners in the form of a list of names and addresses of five suggested evaluators. Because respondent's list is not exhaustive in that it does not include the names of all minimally qualified evaluators in the geographic location and petitioners are not restricted to selecting from among those persons on the list, petitioners are free to select any evaluator who meets minimum State standards (see, Rambo, 16 EHLR 1078 [June 22, 1990]).

Because respondent is required by State law to impose NYS certification or licensure as a minimum qualification for all evaluators who conduct district-initiated evaluations, this criterion must also be applied to independent evaluations. The general rule for minimum qualification of evaluators is that the district's criteria must be commensurate with State standards (see, Bluhm, 1978-87 EHLR 211:227 [July 29, 1980]).

The statutory basis for respondent's requirement is Education Law '3009, which prohibits the payment of salary to an uncertified teacher (Matter of LeVay, 21 Ed Dept Rep 426). In addition, Commissioner's regulations require that the psychological component of a psychoeducational evaluation be conducted by a New York State certified school psychologist or licensed psychologist (8 NYCRR 200.1[t]). Deviation from the minimum State standards is justified only where a child's unique circumstances warrant it (see, Fields, 2 EHLR 213:259 [September 15, 1989]). Petitioners have not demonstrated, and the record does not reflect, that such unique circumstances exist. Accordingly, there is no basis to waive the minimum standards imposed by State law and regulation.

THE APPEAL IS DISMISSED.

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