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FINDINGS OF FACT AND DECISION
Names and Titles of Persons who appeared at the August 5, 2022 Pendency Hearing For the [REDACTED] [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
Names and Titles of Persons who appeared at the November 2, 2022 Hearing For the [REDACTED] [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
Names and Titles of Persons who appeared at the January 12, 2023 Hearing For the [REDACTED] [REDACTED], District Representative [REDACTED], CSE Teacher
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
Names and Titles of Persons who appeared at the April 12, 2023 Hearing For the [REDACTED] [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
Names and Titles of Persons who appeared at the May 8, 2023 Hearing For the [REDACTED] [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
Names and Titles of Persons who appeared at the May 27, 2023 Hearing For the [REDACTED] [REDACTED], District Representative [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
[REDACTED], Speech Language Therapist
Names and Titles of Persons who appeared at the June 16, 2023 Hearing For the [REDACTED] [REDACTED], District Representative [REDACTED], School Psychologist
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
[REDACTED], Director, [REDACTED]
Names and Titles of Persons who appeared at the July 7, 2023 Hearing For the [REDACTED] [REDACTED], District Representative [REDACTED], School Psychologist
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
[REDACTED], BCBA, Director, [REDACTED]
Names and Titles of Persons who appeared at the July 7, 2023 Hearing For the [REDACTED] [REDACTED], District Representative
For the Parents:
[REDACTED], Esq., Attorney for Parent
[REDACTED], Parent Parent
I. Introduction and Procedural History
On July 14, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [REDACTED] ("Student") brought by her parents (“Parent” or “Parents”). A pendency hearing was held on August 5, 2022, a status conference was held on September 14, 2022, and hearings were held on August 5, 2022, November 2, 2022, January 12, 2023, April 12, 2023, May 8, 2023, May 27, 2023, June 16, 2023, and July 7, 2023. The [REDACTED] (“[REDACTED]”) was represented by Michael Eisenberg, Esq. and Parent was represented by [REDACTED], Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective July 26, 2023.
II. Background
Parent filed a due process complaint on July 1, 2022, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting ABA and other services as relief. (Exh. A). An amended due process complaint was filed on January 25, 2023, adding claims regarding a subsequent Individualized Education Services Plan meeting. (Exh. M). There were eight days of hearing, including a pendency hearing. The [REDACTED] provided testimony from two witnesses. Parent provided direct testimony by affidavit of three witnesses, including Parent. (Exh. N, Exh. O and Exh. Q). All witnesses were available for cross-examination. 6
III. Discussion
FINDINGS OF FACT AND DECISION
FINDINGS OF FACT
There were two IESP meetings that covered the 2022-2023 school year. (Exh. 1 and Exh. 11). The first meeting was held on October 8, 2021. (Exh. 1). A due process complaint was filed regarding this due process complaint, and the hearing officer held that the IESP denied Student a FAPE and awarded Student the same services requested in this due process complaint. (Exh. Q, page 2). Parent argues that since an earlier impartial hearing officer held that this IESP violated Student’s right to a FAPE, relitigating of this IESP is barred by collateral estoppel. The [REDACTED] argues that collateral estoppel does not apply as Student was in a different situation.
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). 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 (Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 [2d Cir. Apr. 1, 2013]). Application of a Student with a Disability, No. 21-170.
There is no question that the [REDACTED] is barred from relitigating the finding of the denial of FAPE of the October 2021 IESP that it was in effect for the beginning of the 2022 7
2023 school year. The nucleus of operative facts is identical, despite the [REDACTED]’s contentions that Student’s circumstances may have changed since the prior IESP, especially in light of the [REDACTED]’s identical recommendations in the 2022 IESP. There is nothing in the record that indicates any change in facts; there were no subsequent evaluations or IESP meetings.
There was a second IESP meeting on December 12, 2022. (Exh. 11). The Committee on Special Education (“CSE”) reviewed, among other things, a report from Student’s ABA provider and a report from Student’s speech progress report. (Exh. F and Exh. H). The ABA provider testified that Student receives four hours per day of ABA in therapy at school, to “promote, generalize and increase academic, social and independent living skills learned in school, as well as to prevent regression of skills. In addition, ABA therapy is needed to address maladaptive behaviors interfering with [Student’s] academic functioning and social/emotional development.” (Exh. O, page 3). Student has made considerable progress in academic, communication and social-emotional skills with the implementation of ABA therapy, including improved behaviors, increased ability to attend to auditory instruction, increased time on task and increased ability and interest in interacting with peers. (Tr. 186-90 and Exh. O). Despite the provider’s recommendations for continuation of ABA services to address problem behaviors and facilitate the learning and generalizations of skills, the CSE team failed to recommend ABA services. (Exh. 14, page 14). The speech progress report noted progress but continued the recommendation of five hours per week of speech and language therapy with “the goal of improving intelligibility and functional communication as well as her receptive and expressive language skills.” (Exh. F, page 1). Student’s progress includes direction following, story character identification, improved use of grammar, and expanded vocabulary with the use of PROMPT therapy and DTTC. (Exh. N). The providing agency recommended, with Student’s diagnosis of Autism Spectrum Disorder as well as Mixed Receptive-Expressive Language Disorder, continuation of five hours per week of intensive speech and language therapy. (Exh. N, page 4). Although the IESP refers to the above ABA progress report, and speech report submitted by Parent, there is nothing in the record to indicate that Student has been re-evaluated within the last three years, or that any other reports were used to determine Student’s appropriate program. (Exh. 11, page 1). The [REDACTED] concedes that there was a two-month time period 8 where there was no IESP in effect but alleges that it offered Student a FAPE for “the majority of the ten-month school year.” (Tr. 282).
FAPE
The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
The IDEA directs that, in general, an IHO'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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, 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 9 mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; 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 CFR 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).
BURDEN OF PROOF
The burden of proof is on the [REDACTED] to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
The [REDACTED] argues, correctly, that Parent cannot claim that the private evaluations that recommended ABA services cannot be used to show Student’s needed ABA services as they were not provided to the CSE team during the meetings. (Tr. 283). However, there is nothing in the record to establish the [REDACTED] evaluated Student within the required three-year 10 period, relied on any evaluative material including its own evaluations, and the reports relied on by the [REDACTED] were also provided by Parent and unequivocally recommended continued ABA services. In fact, the only documentation relied upon during the two IESP meetings were these progress reports, and the [REDACTED] provided no credible, objective basis for discounting these reports and substituting its own recommendations.
The [REDACTED] argues, and I agree, that Parent’s claims that they were not aware that an IESP was being developed rather than an IEP is also without merit. Parent has filed due process complaints over the last number of school years, was represented by counsel, and attended due process hearings. However, neither argument is relevant to this particular case. First, the [REDACTED] concedes that FAPE was not provided for at least part of the school year and attempts to argue that FAPE was provided for the “majority of the ten-month school year.” (Tr. 282). The [REDACTED] cannot claim that it only provided a valid IESP for eight out of the ten-month school year and claim that FAPE was provided.
The [REDACTED] also argues that Parent did not provide a request for equitable services by June 1, 2022. (Tr. 282). However, although the school year is over, the [REDACTED] raises this issue for the first time during the final days of hearing. The meeting for Student for the 2022-2023 school year was not held until December, over two months late, and the discussion regarding whether to develop an IEP or IESP was held at that meeting. (Exh. Q, page 3). Requiring Parent to submit a letter on June 1, 2022, without knowing whether an IEP or an IESP would be developed would put the burden on Parent. Additionally, the October 21, 2022 IESP and December 2022 IESP were identical, and the program was already found to be a denial of FAPE. The [REDACTED] alleges no facts that would defeat collateral estoppel.
As there are numerous bases for finding a denial of FAPE for the 2022-2023 school year, the [REDACTED] has failed to meet its burden of proof and Parent is entitled to relief. 11
RELIEF REQUESTED
Parent requests, as relief, continuation of Student’s pendency services for the entire school year. Specifically, Parent requests 20 hours per week of 1:1 ABA, 2 hours per week of ABA supervision, 1 hour per week of PCAT, 5 hours per week of 1:1 speech and language therapy, 3 hours per week of 1:1 occupational therapy, and two hours per week of 1:1 physical therapy. (Exh. A, Exh. M and Exh. Q, page 3). Initially, Student has been receiving the requested services pursuant to a pendency order dated August 5, 2022, which provided for these services for the entire twelve-month 2022-2023 school year. (Exh. D). In fact, Parent has filed a due process complaint annually and the requested services have been found appropriate pursuant to prior decisions. (Exh. C, page 8 and Exh. L, page 6). These decisions have not been appealed and have been the basis for pendency.
Parent provided ample evidentiary support for these requests, including progress reports provided to the [REDACTED] for the December 2022 IESP meeting, as well as testimony from Student’s providers. Therefore, I find that the requested private services provided “educational instruction specifically designed to meet the unique needs of the student.” Gagliardo V. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2007).
Parent also claims that she is “entitled to the cost of independent and/or privately obtained evaluations necessary for the student to receive FAPE.” (Exh. A, page 5). The [REDACTED] argues, and I agree, that Parent did not raise this request for relief at the hearing and the relief should be denied. (Tr. 287). There is nothing in the record to indicate that Parent is requesting specific recommendations. Therefore, Parent’s request for independent evaluations is denied. 12
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The [REDACTED] failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
2. The [REDACTED] shall fund/reimburse Parent for the following services for the twelve-month 2022-2023 school year, less any services provided pursuant to pendency:
a. 20 hours per week of 1:1 ABA therapy divided between school and home, b. 2 hours per week of BCBA supervision, c. 5 hours per week of 1:1 speech and language therapy, d. 3 hours per week of 1:1 occupational therapy, e. 2 hours per week of 1:1 physical therapy, and
f. one hour per week of parent counseling and training with an ABA therapist or BCBA supervisor
3. The [REDACTED] shall fund these services at a rate not to exceed reasonable market rate.
4. Parent’s request for independent evaluations is denied.
Dated: July 27, 2023
AUDREY DANIEL, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
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 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. 14
EXHIBITS ADMITTED AT HEARING
District
STUDENT: [REDACTED] IHO CASE: 227496
# DOCUMENT DESCRIPTION DATE PAGE
1. IEP 10/08/2021 16 pages DOE
2. Notice of IEP Meeting 06/17/2021 3 pages DOE
3. Notice of IEP Meeting 09/28/2021 3 pages DOE
4. Prior Written Notice 11/10/2021 6 pages DOE
5. Speech Progress Report 01/06/2018 2 pages DOE
6. OT Progress Report 05/25/2018 2 pages DOE
7. Academic Progress Report 06/17/2021- 8 SESIS Events Log 3 11/10/2021 01/15/21 10 pages DOE
9. Notice of IEP Meeting 11/23/2022 3 pages DOE
10. Notice of IEP Meeting 12/12/2022 3 pages DOE
11. IESP 12/12/2022 13 pages DOE
12. Prior Written Notice 12/27/2022 4 pages DOE
13. Speech and Language Progress Report 10/24/2022 5 pages DOE
14. ABA Progress Report 11/10/2022- 15 SESIS Events Log 1 01/10/2023 10/21/2022 15 pages DOE
NO. Case Number 227496 15 Parent DATE NAME OF DOCUMENT # pp. ID/date EV/date
A. Due Process Complaint 07/01/22 7 pages
B. Ten Day Notice 06/17/22 3 pages
C. Findings of Fact and Decision (IHO Case No. 180849) 06/29/19 10 pages
D. Order on Pendency (IHO ) 08/05/22 8 pages
E. Service Agreement from [REDACTED], P.C. 07/01/22 1 page
F. Speech and Language Progress Report 10/24/22 5 pages
G. Service Agreement from [REDACTED], Inc. 07/01/22 1 page
H. ABA Progress Report 10/21/22 15 pages
I. [REDACTED] Curriculum Vitae and Public-School Teacher Certificate UNDATED 2 pages
J. Neurological Evaluation by [REDACTED], MD, PhD 02/27/18 3 pages
K. Recommendation Letter by [REDACTED], MD, PhD (Curriculum Vitae Attached) 04/26/22 9 pages
L. Findings of Fact and Decision (IHO Case No. 209813) 11/06/22 15 pages
M. Amended Due Process Complaint 01/25/23 7 pages
N. Affidavit of [REDACTED], 05/19/23 4 pages
O. 16 MS, CCC-SLP, IBCLC Affidavit of [REDACTED], M.S. Ed., BCBA, LBA 05/19/23 5 pages
P. Psychological Evaluation by [REDACTED], Ph.D. 03/09/19 4 pages
Q. Affidavit of [REDACTED] 05/25/23 4 pages
R. 1040 Parent’s Income Tax Return 2022 04/14/23 2 pages
S. Report Card (2022-2023) 06/12/23 2 pages
T. Report Card (2021-2022) Impartial Hearing Officer None. 06/27/22 2 pages