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UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
In the Matter of [REDACTED] (hereinafter referred to as) the “Parent”), on behalf of his son, [REDACTED])
(hereinafter referred to as the “Student”),)
)
Petitioners,) Jeffrey J. Schiro, Esq.
) Impartial Hearing Officer
-against-)
) IHRS
BOARD OF EDUCATION OF THE)
[REDACTED] UNION FREE)
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Esq., Parent, pro se For the School District:
[REDACTED], Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 24, 2022
For the Student:
[REDACTED], 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 May 13, 2022, the school district received a due process complaint which initiated this matter (i.e., IHRS ). In that complaint, the parent asserts that the school district violated the terms of a pendency agreement between the parties (Ex. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“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 May 13, 2022, the Board of Education of the [REDACTED] School District (the “District”) appointed the undersigned to serve as the IHO in this matter (i.e., IHRS ). See 8 NYCRR § 200.5(j)(3)(i). On May 31, 2022, the District served the parent with a combined answer and motion to dismiss the complaint (Ex. IHO-II). See 8 NYCRR §§ 200.5(i)(4)-(5).
A pre-hearing conference with the parties was held on August 24, 2022 to determine if there were any objections to my appointment, clarify the hearing issues, and set a calendar on the District’s motion to dismiss. See 8 NYCRR § 200.5(j)(3)(xi). At the August 24, 2022 conference, the parties consented to my continued appointment to this case (R. 4-6) and a briefing schedule was set on the District’s motion (R. 38-41 47-49). Consistent with that briefing schedule, the parent filed his response in opposition to the District’s motion to dismiss on September 12, 2022 (Ex. IHO-III) and on September 28, 2022, the District filed its reply in support of its motion (Ex. IHO-IV). [2]
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 that the District received the due process complaint, i.e., May 13, 2022, the student was [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 educational environment. 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).[3] See 8 NYCRR § 200.1(zz)(7).
The student resides within the [REDACTED] District (“[REDACTED]”). [REDACTED] is an elementary school district which ends at grade six. When children finish sixth grade at [REDACTED], they have a choice between attending middle school and high school in the [REDACTED] School District or the [REDACTED] School District. For all times relevant to this hearing, parents have elected for the student to receive instruction from the [REDACTED] School District. See Appeal No. 22-010 at 10 n. 13.
The student in this case has been the subject of fourteen prior State-level administrative appeals.[4] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
On September 20, 2019, the parties entered into an agreement as to the location and logistics of the student’s education during ongoing litigation. Pursuant to that agreement, the student is to be transported by the District to one of its schools to receive related services of physical therapy, adaptive physical education, speech and language therapy and occupational therapy. Upon completion of his related services, the student is to be bused to the local library for the provision of his special education instruction by a District-provided special education teacher; and, thereafter, the student’s parents would be responsible for his transport home. Later in the day, the student is to return to the library with transportation provided by the parent, for special instruction (Exs. IHO-II ex. S, IHO-IV ex. C).
As noted in Appeal No. 22-010, the CSE convened on June 9, 2021 and June 27, 2021 to develop an IEP for the student for the 2021/22 school year. The June 2021 CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] Junior-Senior High School. The CSE also recommended that the student receive extended school year, or twelve-month, services from [REDACTED] BOCES in [REDACTED]. The parents rejected both recommendations and filed for due process in a separate proceeding (i.e., IHRS Case No. 552797). During the pendency of that proceeding, the student received special education instruction and related services pursuant to the September 20, 2019 Pendency Agreement (Ex. IHO-II exs. A, B).[5]
In this matter (i.e., IHRS ), the parent alleges that the special education teacher providing the student with instruction during the fall of 2021 engaged in repeated acts of incompetence and misconduct, including being habitually late or absent from scheduled instruction, which violated the terms of the September 20, 2019 Pendency Agreement and deprived the student of a FAPE (Exs. IHO-I at ¶¶ 6-11, 60-70, IHO-II at ¶ 74). Specifically, the parent alleges that:
“On October 26, 2021, [the special education teacher] was late and she instructed [the student] to wait outside the public library during a literal monsoon” (Ex. IHO-I at ¶ 15);
“On October 29, 2021, [the student] was transported to the library for instruction, but [the special education teacher] was not there to receive him” (Ex. IHO-I at ¶ 16);
“On November 2, 2021, Ms. [REDACTED] again pulled [the student] out of the library early and provided instruction outside when it freezing out” (Ex. IHO-I at ¶ 31);
“On or about December 15, 2021, [the special education teacher] appeared at the [student’s] ‘after school academic instruction session’ in such an intoxicated condition, as to render any meaningful education impossible” (Ex. IHO-I at ¶ 35); and
On December 20, 2021, the special education teacher “was falling asleep and slurring her words” (Ex. IHO-I at 44).
The parent further alleges that in a letter dated October 29, 2021, he notified the District’s Superintendent of Schools of his concerns about the student’s special education teacher (Ex. IHO-I at ¶ 19). A similar letter of concern was reportedly sent the same day by the student’s educational consultant to the CSE and the District’s Director of Pupil Personnel Services (Ex. IHO-I at 21).
The parent alleges that the District’s primary response to the special education teacher’s alleged incompetence and misconduct was to conceal relevant facts from the parent by, among other things, intimidating the student’s aide, who reportedly witnessed the teacher’s misdeeds (Ex. IHO-I at ¶¶ 18-20, 34, 38-39, 44-45, 50, 63-68).
In response, the District asserts that although the special education teacher was only assigned to the student for a limited period of time, i.e., from the end of October 2021 through December 20, 2021 (Exs. IHO-II at ¶¶ 73, 75, 77), it took appropriate and reasonable steps to address the parent’s concerns. Specifically, sometime prior to November 1, 2021, the District’s Director of Pupil Personnel Services asked the student’s aide to provide her with information regarding the special education teacher’s lateness and/or absenteeism (Exs. IHO-I at ¶ 22, IHO-II at ¶ 22). On November 5, 2021 the parent met with the Superintendent of Schools to discuss his concerns (Exs. IHO-I at ¶ 33, IHO-II at ¶¶ 33, 75). Lastly, in response to the parent’s December 20, 2021 report that the special education teacher was falling asleep and slurring her words, the District’s Director of Pupil Personnel Services went to the library and observed the special education teacher instructing the student effectively, and not slurring her words (Exs. IHO-I at ¶¶ 44-45, IHO-II at ¶¶ 48, 76); however, given the teacher’s acknowledgement of suffering from congestion and a sore throat, the District Director of Pupil Personnel Services directed her to leave the library and get tested for COVID-19 (Exs. IHO-I at ¶ 48, IHO-II at ¶ 48).
IV. POSITIONS OF THE PARTIES
A. The District The District’s motion to dismiss the parent’s due process complaint should be granted. The parent’s due process complaint fails to meet the sufficiency requirements set forth in State law and regulations. The parent has also failed to state a claim upon which relief can be granted. The parent’s complaint should be dismissed as moot and/or barred by twin principles of res judicata and collateral estoppel. The District did not violate the September 2019 Pendency Agreement and the student was not deprived of a FAPE for the 2021/22 school year (Exs. IHO-II, IHO-IV).
B. The Parent The District’s motion to dismiss should be denied in its entirety. All pendency agreements must facilitate a FAPE. The special education teacher’s incompetence and misconduct during instruction mandated by the September 20, 2019 Pendency Agreement deprived the student of a FAPE. Therefore, the student is entitled to compensatory education. In addition, having intimidated the student’s aide, and conspired to lie about the nature of the special education teacher’s intoxication during instruction, the District’s Director of Pupil Personnel Services should be removed from further involvement in the student’s CSE (Exs. IHO-I, IHO-III).[6]
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 free appropriate public education (“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).[7]
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. 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 May 31, 2022, the District moved to dismiss the parent’s due process complaint (Ex. IHO-II). Decision on the District’s motion was reserved until after a pre-hearing conference with the parties was held on August 24, 2022, 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-III, IHO-IV). 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.
- • Res judicata/Collateral Estoppel 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.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 (S.D.N.Y. June 2, 2017); 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 (or claim preclusion) "precludes parties from relitigating issues that were or could have been raised in a prior proceeding." K.B., 2012 WL 234392, at *4; 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, 2006 WL 3751450, at *6. Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those 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 K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6.[8] Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication. See Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 (2d Cir. Apr. 1, 2013), quoting Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997).
The doctrine of collateral estoppel "precludes parties from litigating a legal or factual issue already decided in an earlier proceeding." Grenon, 2006 WL 3751450, at *6. To establish that a claim is collaterally estopped, a party must show that:
(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had 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.
See Grenon, 2006 WL 3751450, at *6; Perez, 347 F.3d at 426; Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998).
After applying the legal standards set forth above to claims raised in the May 13, 2022 due process complaint, I find that the District’s motion to dismiss should be granted. The parent’s claims alleging: (1) a failure to properly implement the September 20, 2019 Pendency Agreement during the 2021/22 school year, which resulted in a denial of FAPE; and (2) seeking the removal of the District’s Director of Pupil Personnel Services from the District’s CSE, have been litigated in prior proceedings to an adjudication on the merits. As specific allegations unique to the May 13, 2022 due process complaint, i.e., misconduct by the student’s special education teacher and the District’s response to said misconduct, could have been raised in those prior proceedings, the parent is precluded by res judicata from raising those allegations at this time in a separate due process complaint.
- • Alleged Pendency Violations – 2021/22 School Year The IDEA and the New York State Education Law require that a student remain in his or her then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m); Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020), cert. denied, 121 LRP 1307 (2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014); Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Board of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005).
Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d at 906; Wagner v. Board of Educ. of Montgomery County, 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school". See Honig v. Doe, 484 U.S. 305, 323 (1987); Evans v. Board of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Board of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985).
A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE. See Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 (noting that "pendency placement and appropriate placement are separate and distinct concepts"). The pendency provision does not require that a student remain in a particular site or location, see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 (2d Cir. 1980); see also Child's Status During Proceedings, 71 Fed. Reg. 46709 (Aug. 14, 2006) (noting that the "current placement is generally not considered to be location-specific"), or at a particular grade level, see Application of a Child with a Disability (Fayetteville-Manilus Cent. Sch. Dist.), Appeal No. 03-032 (SRO Oct. 24, 2013); Application of a Child with a Disability (Stockbridge Valley Cent. Sch. Dist.), Appeal No. 95-16 (SRO May 18, 1995).
The principle of res judicata precludes a hearing on the parent’s May 13, 2022 due process complaint in this matter, i.e., IHRS Case No. 572870, because the issues raised in that complaint could have been litigated in a prior proceeding involving the same parties which resulted in an adjudication on the merits.
On January 13, 2022, the District received a due process complaint which initiated IHRS Case No. 568727. In that due process complaint, the parent asserted that the District had violated the terms of the September 20, 2019 Pendency Agreement during the 2021/22 school year by unilaterally changing the content of the student’s instruction during an after-school support period (Ex. IHO-IV exs. A, B at 1). Following a two-day motion hearing, the parent’s due process complaint in IHRS Case No. 568727 was dismissed in a Decision & Order dated July 27, 2022 (Ex. IHO-IV at 4, exs. A, B at 20). In the July 27, 2022 Decision & Order, I noted that as the parties’ September 20, 2019 Pendency Agreement did not specify the content of the student’s special instruction, the District retained the discretion to determine the content of that instruction (Ex. IHO-IV ex. At 18). See Ventura de Paulino, 959 F.3d at 533-534 (stating the stay-put provision “does not eliminate the school district’s preexisting and independent authority to determine how to provide the most-recently-agreed-upon educational program).
Thereafter, the parent appealed the July 27, 2022 Decision & Order in IHRS Case No. 568727 to the SRO. See N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5k). In a decision dated September 14, 2022, the SRO dismissed the parent’s appeal, on the grounds that the parent failed to comply with State regulations governing the initiation of the review and the form requirement for pleadings, as well as a determination that the District’s provision of instruction to the student was not contrary to the parties’ September 20, 2019 Pendency Agreement. See Appeal No. 22-102 at 23.
The allegations unique to the parent’s May 13, 2022 due process complaint in IHRS Case No. 572870, i.e., that between October 26, 2021 and December 20, 2021, the special education teacher providing instruction to the student engaged in repeated acts of incompetence and misconduct, were known to the parent at the time he filed his January 13, 2022 due process complaint in IHRS Case No. 568727 and could have been raised by the parent in that prior proceeding (Exs. IHO-I, IHO-IV ex. A). As a consequence, the parent is barred by res judicata from litigating those claims at this time.
Alternatively, to the extent that the parent has appealed the SRO’s decision in Appel No. 22-102 to federal court (Ex. IHO-IV at 5), see 20 U.S.C. §§ 1415(i)(1)(A)-(B), the SRO’s decision in Appeal No. 22-102 remains a decision on the merits for purposes of res judicata. See Malcom v. Board of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist., 506 Fed. App’x 65, 68-69 (2d Cir. 20212) (“A judgment on appeal generally retains its preclusive effect.”) citing Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 188-189 (1941) (holding appeal taken from judgment does not affect judgment’s finality for claim preclusion under either New York or federal law).
- • Removal of School Personnel Among other relief, the parent seeks the removal of the District’s Director of Pupil Personnel Services from further involvement in the student’s CSE, claiming that she intimidated the student’s aide, and conspired to lie about the nature of the special education teacher’s intoxication during the student’s pendency instruction during the fall of 2021 (Ex. IHO-I at 8-9). Applying the doctrine of collateral estoppel, I find that the parent is precluded from litigating that legal issue as it has already been decided in an earlier proceeding.
On August 30, 2021, the District received a due process complaint which initiated IHRS Case No. 556183. In that due process complaint, the parent sought an Order directing the removal of the District’s Director of Pupil Personnel Services from further involvement in the student’s CSE, claiming that she violated the student’s right to a FAPE by reprimanding (in writing), and/or retaliating against, a third-party consultant retained by the District to provide services to the student. Following an October 4, 2021 pre-hearing conference, the parent’s due process complaint in IHRS Case No. 556183 was dismissed in a Decision & Order dated November 12, 2021. In the November 12, 2021 Decision & Order, I found that the parent’s due process complaint failed to state a claim upon which relief could be granted because removing a pupil personnel services director from a CSE is beyond the jurisdictional limits of impartial due process hearings under federal and State law.[9] See Appeal No. 21-249 at 3.
Thereafter, the parent appealed the November 12, 2021 Decision & Order in IHRS Case No. 556183 to the SRO. See N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5k). In a decision dated January 28, 2022, the SRO dismissed the parent’s appeal as untimely.[10] See Appeal No. 21-249 at 5.
As the parent’s May 13, 2022 due process complaint in this matter, i.e., IHRS Case No. 572870, raises an identical legal issue that was raised and decided in IHRS Case No. 556183, i.e., legal authority to remove the District’s Director of Pupil Personnel Services, I find that re-litigation of that legal issue is barred by collateral estoppel.
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: October 24, 2022
/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 ), rec’d 5/13/22, 9 pgs.
II. District’s Combined Answer & Motion to Dismiss, 5/31/22, 22 pgs.
Ex. A – Pendency Letter Agreement, 9/20/19, 3 pgs.
Ex. B – Letter to parents from [REDACTED], 8/25/21, 1 pg.
Ex. C – SRO Decision, Appeal No. 20-135, 9/16/20, 27 pgs.
Ex. D – Decision & Order (IHRS Case No. 556183), 11/12/21, 15 pgs.
Ex. E – Summons & Complaint, Suffolk Co., Index No. 603317/22, filed 2/22/22, 27 pgs.
Ex. F – Decision & Order, Sup. Ct. Suffolk Co., Index No. 603317/22, 5/3/22, 4 pgs.
Ex. G – Due Process Complaint (IHRS Case No. 556183), rec’d 8/30/21, 3 pgs.
III. Parent’s Affirmation in Opposition to Motion to Dismiss, undated, 9 pgs.
IV. District’s Reply Memorandum of Law in Support of Motion to Dismiss, 9/28/22, 10 pgs.
Ex. A – Due Process Complaint (IHRS Case No. 568727), rec’d 1/13/22, 3 pgs.
Ex. B – Decision & Order (IHRS Case No. 568727), 7/27/22, 21 pgs.
Ex. C – Pendency Letter Agreement, 9/20/19, 3 pgs.
Ex. D – Notice of Claim, 1/13/22, 2 pgs.
Ex. E – Summons & Complaint, Suffolk Co., Index No. 603317/22, filed 2/22/22, 27 pgs.
Ex. F – Decision & Order, Sup. Ct. Suffolk Co., Index No. 603317/22, 5/3/22, 4 pgs.
V. Extension Order, 7/27/22, 1 pg.
VI. Extension Order, 9/25/22, 1 pg.
Footnotes
[1] References to the transcript of the pre-hearing conference are noted as “R.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.” or “ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate witness availability and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint and the District’s motion to dismiss. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-V, IHO-VI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] 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).
[4] See Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; 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.
[5] In a Findings of Fact and Decision (“FOFD”) dated January 28, 2022 in IHRS Case No. 552797, I determined that the District offered the student a FAPE for the 2021/22 school year. The parent appealed the January 28, 2022 FOFD to the SRO, see N.Y. Educ. Law § 4404(2); 8 NYCRR § 200.5(k), who affirmed the January 28, 2022 FOFD in a decision dated March 11, 2022, see Appeal No. 22-010.
[6] I interpret the parent’s claims of “administrative negligence and affirmative malfeasance” against the District (Ex. IHO-I at ¶ 69) to be a claim for educational malpractice over which I have no jurisdiction, cf. 8 NYCRR § 200.5(i)(1). A similar claim arising out of the same facts was recently dismissed in the New York State Supreme Court for Suffolk County (Ex. IHO-IV exs. E, F).
[7] 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.
[8] It has been noted in IDEA jurisprudence that "[a]lthough courts were initially hesitant to use res judicata in the administrative setting, the doctrine has consistently been applied to administrative hearings that reach a final judgment on the merits." Theodore v. Dist. of Columbia, 772 F. Supp. 2d 287, 293 (D.D.C. 2011).
[9] A similar application by the parent to remove the District’s then-Pupil Personnel Services Director was dismissed by 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).
[10] A similar retaliation claim arising under Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et. seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., seeking similar relief was recently dismissed in federal court. See Killoran v. Westhampton Beach Sch. Dist., 21-CV-3264(JS)(SIL), 122 LRP 38416 (E.D.N.Y. Sept. 27, 2022).