Impartial Hearing Decision

'.··

ORDER OF DISMISSAL

IHRS Case Number: 510771

Student Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: None

Actual Record Close Date: February 6, 2018

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

ESQ., Attorney — District

I. PROCEDURAL HISTORY

This impartial due process proceeding arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent of the student in an undated, eight page due process complaint submitted to th the "District") via e- mail on December 14,2017. On December 21, 2017, the District appointed me to preside over this matter. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated December 22, 2017, the District denied each and every allegation contained in the due process complaint. See 8 NYCRR §§ 200.5(i)(4), (5). The District also moved to dismiss the parent's due process complaint with prejudice on a variety of grounds. Although the District's motion to dismiss was properly served on the parent, the parent has failed to respond to the District's motion. For the reasons set forth below, the District's motion to dismiss the parent's due process complaint is

GRANTED.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

As a general matter, although the use of summary disposition procedures akin to those used in judicial proceedings are permissible under the IDEA, they should be used with caution and are appropriate in instances in which the parties have had a meaningful opportunity to present evidence and the nonmoving party is unable to identify a genuine issue of material fact.

See JD. v. Pawlet Sch. Dist., 224 F.3d at 60, 69 (2d Cir. 2000); Application ofa Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011 ); Application ofa Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011). Under New York State regulations, an impartial hearing officer must provide al1 parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses. See 8 NYCRR § 200.5U)(3)(xii).

A Insufficiency of Complaint

From my review of the parent's undated due process complaint, I find that it is insufficient because it fails to contemn to the minimal pleading requirements required by law (Ex. A to District's Response to the Due Process Complaint). See 8 NYCRR § 200.5(i)(l ).

A due process complaint must meet the requirements of Federal and State law relating to the sufficiency of the content of the complaint See 20 U.S.C. § 1415(b)(7)(A); 34 C.F.R. §

300.508(b); 8 NYCRR § 200.S(i)(l ). An impartial due process hearing may not proceed unless the due process complaint satisfies the sufficiency requirements. See 20 U.S.C. § 1415(b)(7)(B); 34 C.F.R § 300.508(c); Application ofa Student 1,vith a Disability (New York City Dep't of Educ.), Appeal No. 08~ 146 (SRO Feb. 5, 2008). In pertinent part, a due process complaint shall include the name and address of the child and the name of the school which the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem, and a proposed resolution of the problem. See 20 U.S.C. § 1415(b)(7)(A)(ii); 34 C.F.R. § 300.508(b); 8 NYCRR §

200.S(i)(l ).

"The purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint." Application of the New York City Dep't of Educ., Appeal No. 07-046 at 7 (SRO Jun. 3, 2007) (quoting S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint," (November 3, 2003). A failure to conform to the minimal pleading requirements renders a due process complaint legally insufficient. See Application ofa Student with a Disabili~y (New York City Dep't of Educ.), Appeal No. 09-01 l

(SRO Apr. 2, 2009). Should a hearing officer determine that the due process complaint is insufficient, the hearing officer may dismiss the complaint but not before granting the complaining party an opportunity to amend the complaint. See Questions and Answers on

Procedural Safeg1wrds and Due Process Procedures for Parents and Children with Disabilities,

52 IDELR 266, Question C~4 (OSERS 2009).

As the District con-ectly points out, the complaint fails to set forth the address of the residence of the student, the name of the school the student is attending, an adequate description of the nature of the proposed problem, or an adequate description of the proposed resolution to the problem, which would allow it to defend its actions at the due process hearing or even to resolve the dispute without having to go to due process. The complaint includes allegations, claims, and statements which are entirely irrelevant to this proceeding. The complaint fails to sufficiently specify the timeframe of any allegations contained in the complaint; what matters are in controversy related to the identification, evaluation, or educational placement of the student; or what matter(s) may be in controversy with regard to the provision of a free appropriate public education (''F APEn) to the student. The complaint fails to state what program or programs recommended were allegedly inappropriate; why any such program was not appropriate; and what, if any, special education services were allegedly not provided and when such services were allegedly not provided. The complaint fails to identify the individualized education program ("IEP") or IEPs containing the program or programs the parent claims were not appropriate or the school year in which such program or programs were allegedly recommended for the Student.

The complaint also fails to set forth a comprehensible resolution.

While typically the pa.rent, who appears in this matter prose, would be afforded the opportunity to amend the due process complaint before issuance of a dismissal order, given the merits of the District's other defenses to the complaint, as discussed below, I find that the complaint should be dismissed with prejudice at this time.

B. Mootness/Lack of Residency

Based on the analysis set forth below, I conclude that the matter should be dismissed in its entirety with prejudice as moot Due to the student's lack ofresidency in the District, it is no longer obligated to provide special education and services to the student

It is well settled that the dispute between the parties must at all stages be "real and live," and not "academic," or it risks becoming moot See Lil/bask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y.

2008); J.N v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.NY. Sept. 30, 2008); see also Chenier v. Richard W, 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief. See Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso lndep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989); M.S. v. New York City Dept. of Educ., 734 F. Supp. 2d 271, 280-81

(E.D.N.Y. 2010). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See V.M. v. No. Colonie Cent. Sch. Dist. 1 2013 WL

3187069, at* I 3-*15 (N.D.N.Y. June 20, 2013); Application ofa Student with a Disability (New York CityDep't of Educ.), Appeal No. 12-205 at 8 (SRO July 31, 2014).

The New York State Education Law provides that the responsibility for providing a FAPE rests with the school district in which a student resides. 1 See N.Y. Educ. Law§§ 3202(1),

4401-a, 4402(l)(b)(2). In cases where a parent has requested an impartial hearing seeking prospective relief and such part and the student subsequently move out of the school district, the State Review Officer (the "SRO") has upheld the determination of hearing officers dismissing such complaints as moot. See Appeal ofa Child with a Disability (Barker Cent. Sch. Dist.), Appeal No. 02-110 (SRO July 3, 2003); Application ofa Child Suspected of Having a Disability

(Barker Cent. Sch. Dist.), Appeal No. 02-109 (July 11, 2003).

From the unrebutted evidence submitted by the District on its motion, I find that the parent and the student are no longer District residents, the student is not currently enrolled in the District's schools, and the student does not attend a non-public school within the boundaries of the District.

From the sworn Affidavit o irector of Special Education and Student Support Services, I understand that the parent withdrew the student from the District's schools

1Section l00.2(y) of the Regulations of the Commissioner of Education confers jurisdiction upon a board of education or its designee to determine whether a child is entitled to attend a school district's schools. Residency disputes between parents and school districts are typically resolved by the Commissioner of Education. See N .Y, Edu~. Law § 310; Appeal of a Student with a Disability, Decision No. 16,552 (Sept. 16, 2013); Appeal of a Student with a Disability, Decision No. 16,533 (Aug. 28, 2013). The IDEA does not clearly state the procedures that must be employed by a State to resolve residency disputes involving students with disabilities. See Application ofa Student with a Disability {Rhinebeck Cent. Sch, Dist.), Appeal No. 12-231 at 11-12 (SRO May 27, 2014). through submission of a Withdrawal Form dated August 23, 2016 (Ex. C to Affidavit o sworn to on December 22, 2017, hereinafter referred to as the " ~ f f . ) . - taffforwarded the Withdrawal Form tollllllon on or about August 23, 2016 ff. at ,r 9). Thereafter, the parent provided~ith a copy of tudent Registration Form dated August 16, 2016 indicating the student's address as bein Aff. at 110; Ex.

D to - Aff.). The address of ·snot

located within the territorial boundaries of t h - c h o o l D i s t r i c t ~

Aff. at 111). The student has not been enrolled in the District's schools since his withdrawal on August 23, 2016; and no application for enrollment has been submitted to the District since that time ff. at ,r 18).^[2]

Alternatively, an exception to the mootness doctrine provides that a claim may not be moot, if the conduct complained of is "capable ofrepetition, yet evading review." See Honig v.

Doe, 484 U.S. 305, 318-23 (1988); Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040.

The exception applies only in limited situations, see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and is severely circumscribed, see Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998). First, it must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." See Murphy v. Hunt, 455 U.S. 478, 482

(1982); Knaust, 157 F.3d at 88. Second, controversies are 11 capable ofrepetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again. See

To create a reasonable expectation ofrecurrence, repetition must be more than theoretically possible. See Murphy, 455 U.S. at 482; Russman v. Board of Educ., 260 F.3d 114, 120 (2d Cir.

200 l ). Mere speculation that the parties wtll be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. See

Russman, 260 F.3d at 120,

Here, there is nothing in the limited record before me to demonstrate that the conduct the parent complained of would evade review. Should her son return to the District classified as a student with a disability, the District's CSE would be required to implement an existing ( or develop a new) IEP for him. If he had not been classified as a student with a disability prior to his return, the CSE would be required to act upon appropriate referrals it received. See 8 NYCRR § 200.4(a). If the CSE then failed to implement or develop an IEP, or act upon any referrals, or otherwise failed to comply with the IDEA, the parent would be entitled to exercise her due process rights, including the right to an impartial hearing. See Christopher P., 915 F.2d at 802. Based upon the foregoing, I find that the facts present here do not meet the "capable of repetition, yet evading review" exception to the mootness doctrine.

C. Res Judicata/Collateral Estoppel

Based on the analysis set forth below, I concur with the District that the parent's due process complaint is barred by the principles of res judicata and collateral estoppcl and should therefore be dismissed in its entirety with prejudice.

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

Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19, 2006). 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 fu11 and fair opportunity to litigate a claim should not be allowed to do so again. See 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, I 00

(2005), quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353,357 (1981). Resjudicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or someone in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. See Grenon, 2006 WL 3751450, at *6.

As set forth in ffidavit, the parent submitted a ten page due process complaint on or about September 11, 2016 ( ff. at 112; Ex. E t o ~ f f . ) . The due process complaint giving rise to this matter is identical in all respects to the last eight pages of the September 11, 2016 complaint (Compare Ex. A to District's Due Process Response with Ex.

E to ~ f f . ) . Impartial Hearing Officer was appointed to preside over the September 11, 2016 complaint and, on or about September 20, 2016, the District moved to dismiss the September 11, 2016 complaint ( ff. at 114; Ex. F t o ~ f f . ) . On

October 7, 2016 hnpartial Hearing Officer Richmond dismissed the September 11, 2016 complaint with prejudice as "moot based on lack of residency by the student within the District pursuant to N.Y. Educ. Law Sections 3202(1) and 4401-a" - Aff . at ,,115-16; Ex. F to

~ f f . ) . The parent did not appeal the October 7, 2016 Order to the SRO ( - Aff . at 1

17), the time to do so has now expired, see 8 NYCRR §§ 200.5(k)( 1); 279.2, and the October 7, 2016 Order is now final and binding on the parties, see 34 C.F.R. § 300.514(a); 8 NYCRR §

200.5(i)(5)(v).

D. Prior Stipulation

Based on the analysis set forth below, I conclude that the allegations raised in the due process complaint concerning events on or before August 5, 2015 are barred by a prior stipulation between the parties, and accordingly, those allegations should be dismissed with prejudice.

Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside. See, e.g., Application ofa Child with a Disability (Mahopac Cent. Sch.

Dist.), Appeal No. 07-053 at 14 (SRO Jun. 22, 2007); Application ofa Child with a Disability

(Yorktown Cent. Sch. Dist.), Appeal. No. 05-100 (SRO Oct. 21, 2005). That is equally true with

., '•f_.'11

respect to a stipulation in an IDEA-related administrative proceeding. See, e.g., Application ofa Child with a Disability (Yonkers City Sch. Dist.), Appeal No. 03-044 (Oct. 29, 2003); see also

Hallock v. State of New York, 64 N.Y.2d 224, 230 (1984). It has been noted that an appeal to the SRO niay riot be used as a way to re-litigate a matter that the parties have previously resolved or to consider, in the first instance, additional claims that may arise as a settlement agreement is implemented. See Application ofa Child with a Disability (New York City Dep't of Educ.), Appeal No. 03-071 (SRO Sept. 30, 2003).

On June 6, 2015, the Committee on Special Education (the "CSE") met for the student's annual review and made recommendations for the Student's program for the 2015/16 school year. On July 13, 2015, the parent filed a request for an impartial hearing-with respect to the f,: June 2015 IBP - Aff . at ,i 7; Ex. A to -Aff.). On August 5, 2015, the parent i, •.

voluntarily and knowing, with the assistance of counsel, entered into a Stipulation of Settlement and General Release (''Stipulation") which was fully executed by the District and the parent in complete settlement of the July 13, 2015 complaint and any and all claims by the parent (on behalf of herself and the student) against the District from the beginning oftime up to and including the date of the Stipulation. The Stipulation provides that the parent's July 13, 2015

"complaint shall be deemed withdrawn, with prejudice, with no further action required on the part of the parties" Aff. at 1[ 8; Ex. B.-Aff). Accordingly, by signing the Stipulation, the parent waived her right to bring any claim whatsoever against the District with respect to, inter alia, the Student's educational program and alleged failure to implement the student's IEP, for any claim that she and/or the student may have had up to and including August

5, 2015.

Alternatively, although a stipulation may be vacated for cause including fraud, collusion, mistake, and accident, in this case, it is clear that no such cause exists, see Matter of Frutiger, 29

N,Y.2d 143, 150 (1971); Application ofa Child with a Disability (Mamaroneck Union Free Sch.

Dist.), Appeal No. 97-46 (SRO Apr. 21, 1998), and the parent, therefore, is bound by the terms of the agreement, see Combier v. Biegelson, 2005 WL 477628 at *3 (S.D.N.Y. 2005).

E. Resolution Session Meeting

As the District has made and documented reasonable efforts to schedule a resolution session meeting and has been unable to obtain the participation of the parent in the resolution meeting, the parent's due process complaint is dismissed in its entirety with prejudice.

State and federal regulations provide that within fifteen (15) days of the receipt of the due process complaint notice, the school district shal) convene a resolution meeting where the parents discuss their complaint, and the school district has an opportunity to resolve that complaint with the parents and the relevant members of the CSE who have specific knowledge of the facts identified in the complaint, including a representative of the school district who has decision-making authority but not including an attorney of the school district unless the parents are accompanied by an attorney. See 8 NYCRR § 200.5G)(2)(i); 34 C.F.R. § 300.Sl0(a). If the school district is unable to obtain the parent's participation in the resolution meeting after diligent efforts, and documenting those efforts, it may at the conclusion of the thirty (30) day resolution period, request that a hearing officer dismiss the parent's due process complaint. See 8 NYCRR § 200.S(j)(2)(vi)(a); 34 C.F.R. § 300.510(b)(4).

On December 20, 2017, the - sent a letter to the parent scheduling a resolution meeting to take place on December 22, 2017 at 8:30 a.m. The parent did not appear for the meeting and she did not contact the District to reschedule the meeting. Thereafter, on January 8, 2018, the District sent a second letter to the parent scheduling a resolution meeting to take place on January 10, 2018 at 8:30 a.m. The January 8, 2018 letter advised the parent, "Ifyou do not appear at the rescheduled Resolution Meeting and you do not contact the District by Wednesday,

January 10, 2018 at 8:30 a.m., the District will request that the impartial hearing officer dismiss your due process complaint for failure to participate in the Resolution Meeting. Again, the parent did not appear for the meeting and she did not c.ontact the District to reschedule the meeting (Ex. IHO-V). The thirty (30) day resolution period for this matter expired on January

13, 2018.

Ill. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

The District's motion to dismiss the parent's due process complaint received via e-mail on December 14, 2017 is GRANTED and the matter is hereby DISMISSED in its entirety with prejudice.

Dated: February 20, 2018

Isl Jefti·ev J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to a State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within 2 days after service of the request for review is complete. The rules of procedures for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and mode] forms arc available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

None

SCHOOL DISTRICT

None

IMPARTIAL HEARING OFFICER

I. District's Response to the Due Process Complaint, 12/22/17, 14 pgs.

Ex. A- Due Process Complaint Notice/Impartial Hearing Request, undated, 8 pgs.

II. District's Notice oflnsufficiency & Motion to Dismiss, 12/22/17, 14 pgs.

Ex. A - Due Process Complaint Notice/Impartial Hearing Request, undated, 8 pgs.

Ill. Affidavit in Opposition to Parent's Due Process Complaint, 12/22/17, 4 pgs.

Ex. A - Due Process Complaint Notice/Impartial Hearing Request, 7/13/15, 1 pg.

Ex. B - · l i n of Settlement & General Release, 8/5/15, 8 pgs.

Ex. C iddle Schoo] Withdrawal Form, 8/23/16, 1 pg.

Ex. D - Student Registration Form, 8/16/16, 1 pg.

Ex. E- Due Process Complaint Notice/Impartial hearing Request, 9/11/16, 10 pgs.

Ex. F - Order on Motion to Dismiss, !HRS Case No. 99718, ·

IHO 0/7/16, 2 pgs.

IV. Affidavit of Service, 12/22/17, 1 pg.

V. E-mail to IHO Jeffrey J. Schiro from . 1/17/18, 2 pgs.

Ex. A - Notice of Resolution Session Meeting (Second Attempt), 1/8/18, 1 pg.

Ex. B - Notice of Resolution Session Meeting, 12/20/17, 1 pg.

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Footnotes

[2] In a January 11, 2018 email concerning the instant matter, the parent again confirmed that she and her son "no longer live in the district" (Ex. lHO-V).