Westhampton Beach Union Free School District, Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of [REDACTED] (hereinafter the “Parent”),) on behalf of [REDACTED] (hereinafter the “Student”),)

)

Petitioners,) Jeffrey J. Schiro, Esq.

) Impartial Hearing Officer

-against-)

) IHRS

BOARD OF EDUCATION OF THE)

WESTHAMPTON BEACH UNION FREE)

SCHOOL DISTRICT,)

)

Respondent.)

DECISION & ORDER

For the Student:

[REDACTED], Parent, pro se

For the School District:

[REDACTED], Attorney NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON OCTOBER 4, 2021

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

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. On August 30, 2021, the school district received a due process complaint in IHRS . In that complaint, the parent asserts that the student’s rights to a free appropriate public education (“FAPE”) under the IDEA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) were violated when the school district’s director of pupil personnel services authored a March 5, 2021 letter to a consultant retained by the school district to provide services to the student. The parent seeks an Order directing the removal of the school district’s director of pupil personnel services as an active member of the school district’s Committee on Special Education (the “CSE”) moving forward (Ex. IHO-I).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.

§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR

§ 200.5(k).

II. PROCEDURAL HISTORY

On September 1, 2021, the Board of Education of the [REDACTED] Union Free School District (the “District”) appointed the undersigned to serve as the IHO in this matter (IHRS ) (Ex. IHO-IV at 1). See 8 NYCRR § 200.5(j)(3)(i). On September 14, 2021, the District served the parent with a combined answer and motion to dismiss the complaint (Exs. IHO-II, IHO-III). See 8 NYCRR §§ 200.5(i)(4)-(5).

In a letter to the parties dated September 27, 2021, I set forth disclosures concerning my prior professional background, requested the parties’ availability to participate in a pre-hearing conference and summarized the procedures which would govern the hearing (Ex. IHO-IV).

On October 4, 2021, a pre-hearing conference was held with the parties to clarify the hearing issues and set a briefing schedule on the District’s motion to dismiss. See 8 NYCRR § 200.5(j)(3)(xi). On October 18, 2021, the parent filed his response in opposition to the District’s motion to dismiss (Ex. IHO-V) and on October 27, 2021 the District filed its reply in support of its motion (Ex. IHO-VI).

Appended to this decision are a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the August 30, 2021 due process complaint, the student was nearly [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment (Ex. IHO-III ex. B at 6). The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. IHO-I, IHO-II).^[2] See 8 NYCRR § 200.1(zz)(7).

The student in this case has been the subject of eleven prior State-level administrative appeals.^[3] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.

The due process complaint here centers on a March 5, 2021 letter that the District’s Director of Pupil Personnel Services forwarded to [REDACTED] (hereinafter referred to as the “Private Consultant”) (Exs. IHO-I, IHO-III at ¶ 4, ex. D). [REDACTED] is a private consultant who has been retained by the District to serve as the student’s transition coordinator and provide the family with parent training. The Private Consultant also supervises an employee who serves as the student’s educational consultant (Ex. IHO-III at ¶ 2 & ex. B at 7). The March 5, 2021 letter was transmitted in the midst of a then-ongoing impartial hearing in IHRS Case No. 549825 which concerned an alleged denial of FAPE during the 2020/21 school year (Ex. IHO-III ex. F).

In the March 5, 2021 letter, labeled “personal and confidential,” the District’s Director of Pupil Personnel Services objected to a February 26, 2021 proposal by the Private Consultant that her employee “take on the role of a special educator” for the student. The District’s Director of Pupil Personnel Services asserted that the Private Consultant’s proposal was beyond the scope of her consulting agreement with the District and “more reflective of a parent advocate” advancing “the parents’ desire to have their son educated within [the District’s] high school building” (Ex. IHO-III exs. B at 7, D).

This is not the first time that the March 5, 2021 letter has been the subject of an impartial due process hearing (Ex. IHO-III at ¶ 5). On June 2, 2021, the District received a due process complaint in IHRS Case No. 552466 in which the parent sought declaratory relief that the student’s rights under the IDEA and Section 504 were violated when the District’s Director of Pupil Personnel Services transmitted the March 5, 2021 letter to the Private Consultant. The District moved to dismiss the complaint in IHRS Case No. 552466 on various grounds. The parties were given the opportunity to both orally argue, and submit writing briefs on, their respective positions on the District’s motion to dismiss. In a Decision and Order dated August 13, 2021, the District’s motion to dismiss the parent’s complaint in IHRS Case No. 552466 as insufficient was granted (Ex. IHO-III at ¶ 7, ex. B).

IV. POSITIONS OF THE PARTIES

A. The District The parent’s due process complaint in this case should be dismissed as a matter of law.

The March 5, 2021 letter from the District’s Director of Pupil Personnel Services to the Private Consultant was the subject of a prior impartial due process hearing (IHRS Case No. 552466) which was dismissed. Res judicata precludes re-litigation of that issue in this proceeding. The parent lacks standing to assert claims on behalf of the Private Consultant of alleged retaliation. The complaint fails to state a claim under the IDEA and is insufficient. The complaint is procedurally and jurisdictionally defective. The complaint is redundant of similar claims pending before the Federal District Court of the Eastern District of New York. Lastly, the March 5, 2021 letter was a valid exercise of executive discretion (Ex. IHO-III).

B. The Parent The District’s motion to dismiss should be denied in its entirety. The District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant was “an act of cognizable retaliation” and “improper and subversive” to the integrity of both the CSE process and a then-ongoing impartial hearing in IHRS Case No. 549825. The District’s Director of Pupil Personnel Services’ conduct disqualifies her from serving as a chairperson at CSE meetings for the student. Given the board authority that IHOs have to award equitable remedies, the District should be ordered to remove the District’s Director of Pupil Personnel Services as an active member of the CSE moving forward (Exs. IHO-I, IHO-V).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General IDEA Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students 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); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).^[4]

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 are reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

B. Motion to Dismiss

As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA; however, 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 non-moving party is unable to identify a genuine issue of material fact.” See J.D. v. Pawlet Sch. Dist., 224, F.3d 60, 69 (2d Cir. 2000); Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application of a Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011).

On September 14, 2021, the District moved to dismiss the parent’s due process complaint (Exs. IHO-II, IHO-III). Decision on the District’s motion was reserved until after a pre-hearing conference with the parties was held on October 4, 2021, and until after the parties’ submission of documentary evidence supporting their respective positions, as an evidentiary record must be established to provide an adequate record for review (Exs. IHO-V, IHO-VI). See 8 NYCRR § 200.5(j)(3)(xii); Application of a Student with a Disability (Ardsley Union Free Sch. Dist.), Appeal No. 18-104 at 7 n.6 (SRO Nov. 14, 2018). Having reviewed the content of those submissions, I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the District’s motion to dismiss.

1. Failure to State a Claim – Subverting Due Process Integrity The parent’s application for removal of the District’s Director of Pupil Personnel Services from the District’s CSE, for subverting due process integrity, must be dismissed for failure to state a claim upon which relief can be granted.

Under the IDEA and New York State law, a parent may seek an impartial hearing regarding “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” See 20 U.S.C. § 1415(b)(6)(A); N.Y. Educ. Law § 4404(1). Removing a pupil personnel services director from a CSE is beyond the jurisdictional limits of impartial due process hearings under Federal and State law.

I note that a similar application to remove the District’s then-Pupil Personnel Services Director was made by the parent to the Commissioner of Education in 2018. See Application of a Student with a Disability (Westhampton Beach Union Free Sch. Dist.), 58 Ed. Dep’t Rep., Decision No. 17,452 (2018). In that decision, it was noted that Section 306 of the New York Education Law authorizes the Commissioner, after a hearing, to remove school officers under appropriate circumstances. For purposes of Section 306 of the New York Education Law, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school offier[s].” See Appeal of Passer, 57 Ed. Dep’t Rep., Decision No. 17,274. A director of pupil personnel services, however, is a school employee, and is not a school officer. See Appeals of Gonzalez, 48 Ed. Dep’t Rep. 405, Decision No. 15,898. Based on that analysis, the Commissioner determined that the District’s then-Pupil Personnel Services Director was not subject to removal under Section 306 of the New York Education Law. See Application of a Student with a Disability (Westhampton Beach Union Free Sch. Dist.), 58 Ed. Dep’t Rep., Decision No. 17,452. In the absence of any legal authority to the contrary, I find that I similarly lack the authority under State law to remove a pupil personnel services director.

Alternatively, even if I had such authority, I would not order such a remedy because the District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant did not subvert the integrity of the due process proceeding in IHRS Case No. 549825. On February 24, 2021, the parties proceeded to an impartial hearing in IHRS Case No. 549825, which concluded on July 14, 2021 after nine (9) days of proceedings. In a Findings of Fact and Decision (“FOFD”) dated August 13, 2021, I ultimately concluded after examining the parent’s claims and the evidence in the hearing record that the District – via a January 2021 IEP – offered the student a FAPE in the LRE for the 2020/21 school year and dismissed the parent’s due process complaint. As was his right, the parent appealed the August 13, 2021 FOFD to the SRO. See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k). In her September 24, 2021 decision, the SRO affirmed the integrity of the due process proceeding in IHRS Case No. 549825:

[A]n independent review of the evidence in the hearing record demonstrates that IHO 2 carefully and accurately recounted the issues to be resolved at the impartial hearing, the positions of the parties, as well as the procedural and factual background of the case (see IHO Decision at pp. 1-14). In addition, IHO 2 analyzed the issues raised by the parent concerning the district’s compliance with the December 2020 IHO decision, the FAPE and LRE claims related to the January 2021 CSE process and the January 2021 IEP, and the parent’s predetermination claims related to the January 2021 CSE process, by relying on the relevant facts and the proper legal standards in order to reach his conclusions of law on these issues (id. at pp. 14-30). The decision also shows that IHO 2 carefully recited and considered the testimonial and documentary evidence presented by both parties, and further, that he carefully marshaled and weighed the evidence in support of his conclusions (id.).

See Application of a Student with a Disability (Westhampton Beach Union Free Sch. Dist.), Appeal No. 21-181 at 19-20 (SRO Sept. 24, 2021).

While the parent is entitled to appeal the SRO’s September 24, 2021 Decision in Appeal No. 21-181 to the New York State Supreme Court or federal district court, see 20 U.S.C. § 1415(i)(2)(A); 34 C.F.R. §§ 300.514(d), 300.516; N.Y. Educ. Law § 4404(3); 8 NYCRR § 200.5(k)(3), the parent has produced no evidence that the District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant subverted or undermined the integrity of the impartial due process hearing in IHRS Case No. 549825.

2. Lack of Standing – Retaliation

Likewise, the parent’s application for removal of the District’s Director of Pupil Personnel Services from the District’s CSE, for alleged retaliation against the Private Consultant, must be dismissed due to a lack of standing.^[5]

The standing requirement in Federal actions is grounded in the Federal constitutional requirement of a case or controversy. U.S. Const., art. III, §2, cl. 1. The core requirement to establish standing is an injury-in-fact. See Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152-153 (1970). Although courts have disagreed on what is sufficient to constitute an injury-in-fact, the only courts that have addressed this issue in New York have found that the denial of a FAPE or of a procedural right created by the IDEA is sufficient to satisfy the injury-in-fact requirement. See S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 359-360 (S.D.N.Y. 2009); E.M. v. New York City Dep't of Educ., 2011 WL 1044905, at *6 (S.D.N.Y. March 14, 2011); see also Heldman v. Sobol, 962 F.2d 148, 154-56 (2d Cir. 1992).

The premise of the parent’s retaliation claim is that “the content of the correspondence reveals that the defendant district was attempting to alternatively bully and/or pressure [the Private Consultant], and by extension [her employee], to change their proposed educational suggestions and/or recommendations concerning [the student], under threat of discontinued employment with the defendant district” (Exs. IHO-I at ¶ 3, IHO-III at ¶ 54). Similarly, in opposition to the District’s motion, the parent asserts that the District’s Director of Pupil Personnel Services “sought to coercively alter the educational placement recommendations of [the Private Consultant] and [her employee] under threat of ‘retaliation’” (emphasis in original) (Ex. IHO-V at 3). Even if true, those allegations do not constitute a denial of a FAPE or of a procedural right created by the IDEA sufficient to satisfy the injury-in-fact requirement for standing.

The Private Consultant’s professional relationship with the District is voluntary and contractual, and not based on the IDEA’s substantive and procedural entitlements. The opinions shared by the Private Consultant in her February 26, 2021 email (which the District’s Director of Pupil Personnel Services criticized in her March 5, 2021 letter) were not activity protected by the IDEA. The evidentiary record in IHRS Case No. 549825 reflects that the Private Consultant did not change her educational placement recommendations for the student following her receipt of the District’s Director of Pupil Personnel Services’ March 5, 2021 letter and that her contract with the District was not terminated (Ex. IHO-III ex. E). Lastly, two levels of administrative review have concluded that the student was not denied a FAPE during the 2020/21 school year.

To the extent “that [the Private Consultant] did in fact feel bullied and pressured and under the threat of employment termination” (Exs. IHO-I at ¶ 3, IHO-III at ¶ 55), that “injury” belongs to the Private Consultant, and not the parent or the student, who lack the necessary standing to advance that claim in this due process hearing.

VI. 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 complaint in IHRS is GRANTED and the complaint is hereby DISMISSED.

Dated: November 12, 2021

/s/ Jeffrey 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 plan 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 two days after service of the request for review is complete. The rules of procedure 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 model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

None

SCHOOL DISTRICT

None

IMPARTIAL HEARING OFFICER

I. Due Process Complaint (IHRS ), undated, 3 pgs.

II. District’s Combined Answer & Motion to Dismiss, 9/14/21, 12 pgs.

Ex. A – Due Process Complaint (IHRS ), undated, 3 pgs.

III. Supporting Affirmation, 9/14/21, 30 pgs.

Ex. A – Due Process Complaint (IHRS Case No. 552466), 5/28/21, 2 pgs.

Ex. B - Decision & Order (IHRS Case Nos. 552466 & 552467), 8/13/21, 23 pgs.

Ex. C – Excerpt of Impartial Hearing Transcript (IHRS Case No. 549825), 5/11/21, 8 pgs.

Ex. D - Letter to [REDACTED], Ph.D., from [REDACTED], Ed.D., 3/5/21, 2 pgs.

Ex. E - Email to [REDACTED], Ed.D., from [REDACTED], Ph.D., 3/8/21, 2 pgs.

Ex. F - Excerpt of Impartial Hearing Transcript (IHRS Case No. 549825), 5/27/21, 22 pgs.

Ex. G – Verified Complaint, CV-21-3264 (E.D.N.Y.) (Seybert, J., Locke, M.J.), 11/7/21, 12 pgs.

IV. Letter to Parties from IHO Jeffrey J. Schiro, 9/27/21, 6 pgs.

V. Complainant’s Combined Response & Memorandum of Law in Opposition to Motion to Dismiss,

10/18/21, 7 pgs.

VI. Supporting Affirmation in Reply, 10/27/21, 12 pgs.

Footnotes

[1] References to the transcript of the pre-hearing conference are noted as “Tr.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”

[2] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[3] See Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.

[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge. (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[5] Retaliation claims generally fall under the guise of 42 U.S.C. § 1983 (“Section 1983”) or Section 504 of the Rehabilitation Act of 1974 (“Section 504”), 29 U.S.C. § 794(a). As compensatory damages are not available in the administrative forum under the IDEA, neither an IHO nor an SRO has jurisdiction to award any remedy for a claim under Section 1983. See Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002); Polera v. Board of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002); see also R.B. v. Bd. of Educ. of the City of New York, 99 F. Supp. 2d 411, 418 (S.D.N.Y. 2000). Further, District has not appointed me to hear the parent’s Section 504 claims through the IDEA impartial hearing procedures. See 34 CFR 104.36. Recognizing these jurisdictional impediments, the parent asserts that “courts have begun recognizing ‘retaliation claims’ arising out of the IDEA” (Ex. IHO-V at 3). None of the case law cited by the parent for this proposition, however, emanates from the Second Circuit.