New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‟s Name: Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: March 21, 2011

March 29, 2011 Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 21, 2011

(via telephone) — Student

DOE Representative (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 29, 2011

Student

DOE Representative — DOE

— DOE

I. Procedural tory/Issues to the Addressed at the Hearing — DOE

T impartial due process hearing was requested on February 14, 2011, by counsel for the parent, , and the student, , pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401 et. seq. On the same day, I was appointed by the New York City Department of Education (the “DOE”) to conduct the hearing. In her February 14th due process complaint, the parent seeks an Order declaring, inter alia, that the DOE failed to propose an appropriate and placement for the student for the 2010/11 school year and that the student requires immediate placement at public expense (R. 4, 28-29; Ex. IHO-I at 2).^[1] The parent has identified the (“ ”) located in , as an appropriate placement for the student (R. 29; Ex. IHO-I). The parties have stipulated that the is on the New York State Education Department‟s list of approved private schools (R. 15; Ex. IHO-I at 1). See 8 NYCRR §§ 200.1(d), 200.17.

In a letter dated February 22, 2011, I notified the parties of my appointment to the case (Ex. IHO-II). At a March 21, 2011 pre-hearing telephone conference, the parties stipulated to my appointment to hear t matter (R. 4, 27). After a brief discussion of the issues of the case, the hearing in t matter was set for March 29, 2011 (R. 18).

Prior to the March 29th hearing, the DOE moved to dismiss the parent‟s February 14th due process complaint, alleging that the claims raised in the complaint had previously been adjudicated by Impartial Hearing Officer in a decision dated January 31, 2011 (Case No. 127857) (Exs. SD-1, SD-2). Argument on the DOE‟s motion was set for March 29th (R. 20-21). A hearing was held, as scheduled, on March 29th during which the parties presented arguments in support of, and in opposition to, the DOE's motion and several documents were received into evidence on consent of both parties (R. 44-50). The parties declined to submit post-hearing memoranda of law on the DOE's motion (R. 58). Appended to t decision is a list of those people in attendance at the March 29th hearing and documents received into evidence.

II Positions of the Parties

A. The DOE

The DOE has moved to dismiss the parent‟s February 14th due process complaint based on the legal principle of res judicata (Ex. SD-2). The DOE alleges that the parent‟s present claim for placement of the student at for the 2010/11 school year was previously considered and denied by IHO in a separate hearing (Case No. 127857) (R. 43-47; Exs. IHO-I, SD-1, SE-2). Citing IHO ‟s January 31, 2011 Findings of Fact and Decision, the DOE argues that the is an inappropriate and overly restrictive placement for the student, who is capable of benefitting from in a

(R. 44; Ex. SD-1).

The Committee on Special Education (the “CSE”) reconvened on February 10, 2011 to implement that portion of IHO ‟s January 31st Order which instructed the DOE to add two periods per day of instruction to the student‟s individualized education (“”) for those days the student is during the 2010/11 school year (R. 33, 44, 46; Ex. SD-1 at 24).

The DOE also argues that the parent‟s February 14th due process complaint is premature as the DOE has completed a of the student, at the parent‟s request, and that a Committee on Special Education review is scheduled for April, 2011 to consider to student‟s possible placement in a state-approved (R. 38-39, 4546).

B. The Parent

The parent opposes the DOE‟s motion. The parent argues that IHO st expressly stated in January 31 Order that the parent‟s request for prospective funding for the student to attend the for the 2010/11 school year was denied without prejudice to the parent‟s right to seek such relief again if the student‟s / and needs in school change (R. 47; Ex. SD-1 at 24). The parent argues that the student‟s / and needs in school have changed as evidenced by long term (R. 47-48).

III. Factual Background

As the parties‟ familiarity with the student‟s educational tory is assumed, I will only briefly summarize the relevant facts here, as set forth in detail in IHO ‟s January 31st Decision and Order (Ex. SD-1).

The student is a -year-old who carries an educational classification of an (Exs. IHO-I at 1, SD-1 at 1, 4, 8).^[2] The student is diagnosed with , and (Exs. IHO-I, SD-1 at 3, 6). The student is , and for and (Ex. IHO-I at 1).

The student was previously enrolled in the at School (“ ”) for the 2009/10 school year. At t , he was several times for , with , school and of classroom (Exs. IHO-I at 1-2, SD-1 at 2-3). Notwithstanding these , the student‟s final grades for the 2009/10 school year at were: , , . He scored a in the science ( ) exam. He for the 2009/10 school year (Ex. SD-1 at 5).

The student was by parent, due to at , at from June 11, 2010 to approximately July 7, 2010 (R. 34-35; Ex. SD-1 at 5). The student was again by parent, due to at , at the , from August 11, 2010 to August 20, 2010 (R. 34-35; Ex. SD-1 at 6). at both hospitals recommended that the student be placed at a structured and (Ex. SD-1 at 5-6).

On October 6, 2010, the CSE met to develop an for the student for the 2010/11 school year (Ex. SD-1 at 7). The developed at the October 6th CSE meeting called for the student to receive instruction in a general education with special (“ ”) at a District school with assistance from a (R. 33, 35; Ex. SD-1 at 8). Related services recommended on the included group , one time per week for forty (40) minutes (Ex. SD-1 at 8). Test accommodations on the included extended time, use of a and location (Ex. SD-1 at 8). The CSE considered the student in a school but rejected that placement alternative as too restrictive (Ex. SD-1 at 8).

On June 29, 2010, while the student was at , the parent requested an impartial due process hearing. An amended due process complaint was filed by counsel for the parents on July 9, 2010. The amended hearing request alleged a failure by the DOE to provide the student with a free appropriate public education (“FAPE”) for the 2010/11 school year and sought prospective funding for the student to attend the for the 2010/11 school year. Three days of hearing were held before IHO on the parent‟s amended claims on: September 24, 2010; October 25, 2010 and December 7, 2010 (Ex. SD-1 at 2).

IHO declined to order the student‟s placement at (R. 44; Ex. SD-1 at 24). In January 31st Decision and Order, IHO found “that the DOE recommendation for a District with , and was adequately supported by the information before the CSE on October 6, 2010" (Ex. SD-1 at 16). IHO concurred “with the DOE participants at the October 6th CSE meeting that [the student] can succeed in the at provided he attends the consistently” (Ex. SD-1 at 18). IHO “agreed with the opinion that it would be to the student to / and achievement at since the spring of 2010 by placing [him] in a because of that are unrelated to at school” (Ex. SD-1 at 18).

In considering the parent‟s proposed placement of , IHO concluded that was “ for [the student]” and that the student “does not exhibit issues in school that are typically addressed at ” (R. 44; Ex. SD-1 at 23). IHO also found that “is and for the student given / and ” (R. 44; Ex. SD-1 at 23).

Lastly, IHO found “that the cost of tuition at , approximately $ per school year, is excessive given the student‟s ability to function in a general education class and lack of substantive needs in school” (R. 45; Ex. SD-1 at 24).

The parties stipulated to the fact that the parent did not appeal IHO ‟s January 31, 2011 Findings of Fact and Decision to the State Review Officer (R. 9-10).

The student has remained since in or around October, 2011. On or about March 9, 2011, the student was from and to (“ ”), described by the parties as a long-term New York State located in , . The student remains at at the present time (R. 7, 14, 35, 48; Ex. P-A).^[3] In a March 28, 2011 letter, ,a associated with , recommended that the student be referred to a (Ex. P-A).

Consistent with IHO ‟s January 31st Decision and Order, the CSE reconvened on February 10, 2011 and modified the student‟s to include a provision for two (2) hours of -based instruction while the student remained (R. 28, 33, 36, 44).

IV. Applicable Legal Standards

Two purposes of the IDEA, 20 U.S.C. § 1400-1482, are: (1) to ensure that student with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. See 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the developed by its CSE through the IDEA‟s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowely, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render an legally inadequate under the IDEA. See A.C. v. Board of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student‟s right to a FAPE; (b) significantly impeded the parents‟ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of education benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer‟s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support serves to permit the child to benefit educational from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an .” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by living parents.” Id. at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an that is „likely to produce progress, not regression,‟ and . . . affords the student with an opportunity greater than mere „trivial advancement.‟” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130. The must be “reasonably calculated to provide some „meaningful‟ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192. The student‟s recommended must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

An appropriate educational begins with an that accurately reflects the results of evaluations to identify the student‟s needs, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i), establishes annual goals related to those needs, see 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). Subsequent to its development, an must be properly implemented. See 8 NYCRR § 200.4(e)(7). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

V. Findings of Fact and Conclusions of Law

A threshold issue in t matter is the DOE‟s motion to dismiss the parent‟s February 14, 2011 due process complaint on the grounds of res judicata. After reviewing the February 14th due process complaint, IHO ‟s January 31, 2011 Findings of Fact and Decision and the parties‟ arguments, I find that the matters raised in the parent‟s February 14th due process complaint have already been adjudicated by IHO in Case Number which concerned the student‟s special education for the 2010/11 school year.

The doctrine of res judicata “precludes parties from litigating issues that were or could have been raised in a prior proceeding.” Perez v. Danbury Hosp., 347 F.3d 419, 426 (2d Cir. 2003); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir. 1985).

The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying t principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again.

In re Hunter, 4 N.Y.3d 260, 269 (2005).

“[P]rinciples of res judicata require that „once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.‟” Chen

v. Fischer, 6 N.Y.3d 94, 100 (2005), quoting O’Brien v. City of Syracuse, 54 N.Y.2d 353,

357 (1981); see also In re Hunter, 4 N.Y.3d at 269. Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same plaintiff or someone in privity with the plaintiff; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. See Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450 at *6 (N.D.N.Y. Dec. 19, 2006).

The related doctrine of collateral estoppel precludes parties from litigating “a legal or factual issue already decided in an earlier proceeding.” See Perez, 347 F.3d at 426;

Grenon, 2006 WL 3751450 at *6. To prove collateral estoppel, a party must show that:

(1) the identical issue was raised in a previous proceeding; (2) the issue was „actually litigate and decided‟ in the previous proceeding; (3) the party has a „full and fair opportunity‟ to litigate the issue; and (4) the resolution of the issue was „necessary to support a valid and final judgment on the merits.‟

Grenon, 2006 WL 3751450 at *6, quoting Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998).

I find that, consistent with the principles of res judicata and collateral estoppel, Impartial Hearing Officer ‟s January 31st Findings of Fact and Decision precludes further hearings in t matter on the issues articulated in the parent‟s February 14th due process complaint (Exs. IHO-I, SD-1). There is no dispute that the prior proceeding before IHO involved an adjudication on the merits and that the prior proceeding involved the same parent and student (Exs. IHO-I, SD-1).

I find that the claims alleged by the parent in the February 14th due process complaint were, or could have been, raised in the prior proceeding. See Grenon, 2006 WL 3751450 at *6. I find that the claims alleged by the parent in the February 14th due process complaint were, or could have been, raised in the prior proceeding. See Grenon, 2006 WL 3751450 at *6. In both proceedings, the parent alleges that the DOE has denied the student a FAPE for the 2010/11 school year and seeks the student‟s placement at the (Exs. IHO-I, SD-1 at 2, 9-11). at 2, 9-11).

While the February 14th due process complaint references the CSE‟s February 10, 2011 meeting, which occurred after IHO ‟s hearing, I find that the CSE‟s February 10th recommendation of -based instruction for the student was done in compliance with a specific directive ordered by IHO in January 31st Findings of Fact and Decision (R. 28; Exs. IHO-I, SD-1 at 24). If the parent objected to that portion of IHO‟s s January 31st Findings of Fact and Decision, which ordered the DOE to reconvene and add -based instruction to the student‟s , the proper venue for that objection was an appeal to the State Review Officer, not another impartial due process hearing request. See 20 U.S.C. § 1415(i)(1)(A); 34 C.F.R. § 300.514(a); 8 NYCRR 200.5(j)(5)(v); Application of the New York City Sch. Dist., Appeal No. 11-014 at 6 (SRO Feb. 28, 2011) (“An impartial hearing officer‟s decision is final unless timely appealed to a State Review Officer.”).

Alternatively, I find that IHO ‟s prior dismissal of the parent‟s prospective funding claim for the 2010/11 school year “without prejudice” does not permit the parent to re-litigate the same or similar claims at t time. The relevant portion of IHO ‟s Order states:

The parent‟s request for prospective funding for [the student] to attend for the 2010/11 school year is denied without prejudice to the parent‟s right to seek such relief again if the student‟s social/emotional functioning and needs in school change (Ex. SD-1 at 24).

Contrary to the parent‟s assertion, the determinative language in t portion of IHO s Order is not “without prejudice,” but instead is “in school” (R. 47; Ex. SD-1 at 24). A careful reading of the January 31st Findings of Fact and Decision reveals that the phrase “in school” does not appear in IHO ‟s Order by accident. In considering the parent‟s arguments in favor of the student‟s placement, IHO found:

In t case, the are at present almost entirely confined to the , and he can function appropriately in a education setting. The only is that the student is being from , the extent of which prevents him from attending school. I find there is no basis under the IDEIA justifying the provision of a by a school district under such circumstances.

Finally, I take note of the fact that the parents did not consent to the CSE recommendation on January 29, 2010 for a more , class ( ), school placement recommended to address the student‟s / and needs in school.

Rather, they opted to continue to have [the student] attend the at , which I find supports a finding that the student‟s were focused at , not in school (Ex. SD-1 at 21-22; see also pg. 18 n.6).

As the parent has conceded that the student has remained since in or around October, 2011, I find that the student‟s / and needs in school have not changed since IHO ‟s January 31st Findings of Fact and Decision. Consequently, the parent may not re-litigate now the same or similar issues which had been raised in the prior proceeding before IHO (R. 48; Ex. SD-1 at 24).^[4]

VI. Order

IT IS THEREFORE ORDERED THAT:

(1) the DOE‟s motion to dismiss the parent‟s February 14, 2011 due process complaint is GRANTED;

(2) the parent‟s February 14, 2011 due process complaint is DISMISSED; and

(3) the additional hearing date scheduled in t matter (for April 27, 2011) is hereby

ADJOURNED. Dated: April 18, 2011

_________________________

ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of t decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal t decision.

Directions and sample forms for filing an appeal are included with t decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Letter from , 3?28/11,^[1] p.

DEPARTMENT OF EDUCATION

2 Request for Preliminary Ruling, Motion to Dismiss, 2/15/11, 1 p.

IMPARTIAL HEARING OFFICER

I Impartial Hearing Request, 2/14/11, 4 pp. II Letter from IHO to Parties, 2/14/11, 5 pp.

Footnotes

[1] References to the transcribed record of this hearing are noted as “R.” References to exhibits entered into the hearing record are noted as “Ex.”

[2] means a exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student‟s educational performance: (i) an inability to learn that cannot be explained by intellectual, , or factors; (ii) an inability to build or maintain satisfactory with and ; (iii) types of or under circumstances; (iv) a generally of or ; or (v) a tendency to develop or associated with or school . The term includes . The term does not apply to students who are , unless it is determined that they have an . 8 NYCRR § 200.1(zz)(4).

[3] In response to my request, counsel for the parent reported that, while at , the student receives daily instruction in math, reading, ELA, social studies, science and art from to in a classroom with students with a student-to-teacher ratio of 1:3 (R. 30).

[4] I note, in passing, that the parent‟s February 14, 2011 due process complaint fails to allege that the student‟s needs in school have changed since IHO s January 31st Findings of Fact and Decision (Ex. IHO-I). However, in considering the DOE‟s motion, I have analyzed the February 14th due process complaint in a light most favorable to the non-movant (i.e., the parent) to include the allegation that the student‟s social/emotional functioning and behavior needs in school have changed (R. 47; Ex. IHO-1).

[1] IHO Decision, 1/31/11, 29 pp.