Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: May 4, 2012

May 11, 2012

June 5, 2012 Actual Record Close Date: July 9, 2012 Hearing Officer: Michael Kennedy Lloyd, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2012

Advocate — Student

Parents

For the Board of Education: — Student

Attorney — Student

School Psychologist — Student

Principal — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2012

Advocate — Student

Parents

Parents

For the Board of Education: — Student

Attorney — Student

School Psychologist — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2012

Advocate — Student

Parents

Program Director- — Student

Teacher- — Student

For the Board of Education: — Student

Attorney — Student

The matter of . came before me on May 4, 2012. The date of my designation as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1415(f)(1) was January 25, 2012. This hearing was convened at the request of the parent, which was received on January 24, 2012. The hearings were held on May 4, 2012; May 11, 2012 and June 5, 2012. The parties requested to submit posthearing memorandum/briefs and have done so. The compliance date is extended. Appended to the record are the lists of persons in attendance and the evidentiary submissions.

Parents have requested this Hearing seeking the continued placement of the student in the Rebecca School for the failure of the NYCDOE to properly construct an IEP accounting for the student’s severe handicaps in the 2011 – 2012 school year. The failures alleged (Exhibit A) are 1) refusal to schedule the CSE meeting when the Parent’s Advocate could participate; 2) failure to adequately assess/review the student’s present levels of performance; 3) improperly setting reading goals which are inconsistent with the student’s ability to perform; 4) not properly assessing the student’s need for assistive technology determining none was appropriate; 5) eliminating previously proscribed Counseling services without regard for the student’s severe behavioral manifestations; 6) programming the student for standard promotional criteria without any accommodations in the face of the severity of handicapping circumstances possessed by the student; 7) construction of a devoid of positive re-enforcement. The student has a classification of without disagreement between the parties.

The NYCDOE represents a FAPE (free and appropriate public education) was afforded the student at its April 11, 2011 CSE (Committee on Special Education) meeting (see Exhibit 1) with the issuance of a Final Notice of Recommendation dated May 31, 2011 (Exhibit 4). The IEP document is represented to be itemized (for known behaviors) specified and targeted to address specific manifestations exhibited by this student and reflective of identified Parent concerns. The student is proscribed (4X30 (3X30 ) and a in a 12 month program. The student represents , has a demonstrated propensity for , frequently . The student is , at the and in all respects. She has presented as evaluation and a Vineland Adaptive Behavior Scales has her assessed at in 10 of 16 domains (Exhibit 4).

BACKGROUND

The student is currently in June of 2011 pursuant to a parental placement and later determined appropriate by an impartial hearing decision (Exhibit I). This decision had among its foundational issues and documents the same April 2011 IEP ((Exhibit 1) the same Evaluation (Exhibit 4) and the same (Exhibit 1 p.20) as are defended in this matter before me. Parents claim that the matter is res judicata in that these same issues have been previously litigated and the decision went against the NYCDOE after a full hearing on the IEP and offer of placement for the 2010-2011 school year. In referencing the decision, it is perfectly clear that this IEP was litigated and commented upon as possibly providing a FAPE depending upon the testimony of the participating NYCDOE personnel (Exhibit I p.14). Having failed to substantiate the IEP was reasonably calculated to confer an educational benefit it appears the NYCDOE is determined to attempt a second bite at the apple re-litigating this same IEP previously found wanting for the same time period (June 1, 2011 – April 8, 2012). See Exhibit 1.

THE POSITION OF THE PARTIES

The NYCDOE promulgates the IEP of April 11, 2011 as providing a free and appropriate public education (hereinafter FAPE). It used several evaluations and had all the mandatory members present (Exhibit 1 p.18). It contends the CSE meeting of April 11, 2011 was proper in all respects and the placement would meet the requirement of providing an educational benefit and more than mere trivial advancement for the student. As aforementioned these are the same processes and procedures that were litigated and decided on November 19, 2011.

The Parent’s position is that the determination on the appropriateness of this IEP and its providing of a FAPE was previously made on November 19, 2011 and this matter is res judicata. Additionally, the Parent asserts that the NYCDOE failed to notify Parent as to the time and date of the CSE meeting such that its pre-identified Advocate would be unavailable to participate. The NYCDOE upon receiving notice of advocate’s unavailability refused to adjourn. Parent alleges failure of the NYCDOE to provide proper notice as to time and date of the meeting to Parent. Parent challenges the NYCDOE FBA and BIP ( and ) for appropriateness in that it miscomprehended the basis (antecedents and triggers) of student’s behaviors by not recognizing the sensory issues basis for the student’s disregulations. Tr. p.248-249. The student has had a markedly noticeable decrease in her aggressive behaviors since enrollment at the . Tr. p.267 -269.

FINDING OF FACTS AND CONCLUSIONS OF LAW

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 IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 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 IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). 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 educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally 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 IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, but " school districts are not required to "maximize" the potential of students with disabilities (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 IEP 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 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (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]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; adjudicated and found not reasonably calculated to confer educational benefit on the Student (Exhibit I p.14). I agree with Parent that this case is within the ambit of res judicata. “The SRO has addressed the issue of res judicata, including in Application of a Student with a Disability, Appeal No. 12-017:

It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity (see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012]; Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 [S.D.N.Y. 2010]; Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19. 2006)].

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]; Grenon, 2006 WL 3751450, at *6; Application of a Child with a Disability, Appeal No. 07-093; Application of a Child with a Disability, Appeal No. 06-100; Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 04099).

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 this 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]]; 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 (Grenon, 2006 WL 3751450, at *6).

The instant case meets the three res judicata elements described above. As described in Impartial Hearing Officer Lorraine Ferrigno’s Findings of Fact and Decision # (the “Decision”) (Ex. I), the parents were found to prevail on Prongs I, II and III in which the same IEP and placement were implicated as in the instant matter. Included in the evidence for the Decision were the IEP of April 11, 2011 and the FNR placement of May 31, 2011, the same as in this matter (Exs. I, 1, 4). In her decision, IHO Ferrigno clearly stated that, “The District failed to give any testimony as to the appropriateness of the IEP’s (either IEP) recommendations and goals, and a belief that they were reasonably calculated to enable Student to receive an educational benefit” (Decision at 12). Ferrigno further stated that, “The District, for the reasons stated above, did not prove that the IEP and resulting placements were reasonable [sic] calculated to confer educational benefits on the Student (Decision at 13).” Exhibit IHO 2.

In keeping with this determination, I order the NYCDOE to pay directly $93,750

(ninety three thousand seven hundred and fifty dollars) as the outstanding balance due for the above student from July 2011 through June 30, 2012. I further order the NYCDOE to reimburse the Parent for $1,000 (one thousand dollars) tuition expenses and or fees expended with the Rebecca School enrollment of the student for the 12 month school year July 2011 through June 30, 2012 (see Exhibit G). Said payments shall be made upon a showing of all proper billing statements and records as the NYCDOE shall require. Said payments are to be made on or before September 1, 2012.

Dated: July 25, 2012

________________________________________

MICHAEL KENNEDY LLOYD, ESQ.

Impartial Hearing Officer

MKL:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this 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 this decision.

Directions and sample forms for filing an appeal are included with this 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 Impartial Hearing Request, 1/24/12, 6 pp. B Program Description, Undated, 4 pp. D Ten-Day Notice, 5/19/11, 2 pp. E Class Schedule, 11/2012, 1p. F Enrollment Contract, 11/2012, 6 pp. G School Affidavit, 4/27/11, 2 pp. H Parent Tax Return 2010, 3 pp. I Impartial Hearing Officer’s Decision, 11/19/11, 18 pp.

DEPARTMENT OF EDUCATION

1 IEP, 4/11/11, 21 pp. 2 Notice of IEP Meeting, 4/1/11, 4 pp. 3 Consent for Evaluations, 3/15/11, 4 pp. 4 Final Notice of Recommendation, 5/31/11, 1 p. 5 Review, 3/25/11, 3 pp. 6 Evaluation, 4/1/11, 6 pp. 7 Report, 3/29/11, 1 p. 8 Evaluation, 4 pp.

IMPARTIAL HEARING OFFICER

I NYCDOE Closing Brief, 7/9/12, 14 pp. II Parent’s Closing Brief, 7/9/12, 16 pp.

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Footnotes

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 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 (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]). On this case before me I find as a matter of fact that this April 11, 2011 IEP for the time period of June 1, 2011 through April 8, 2012 (Exhibit 1) has previously been