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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
[REDACTED] (hereinafter referred to as the)
“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 MAY 26, 2023
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 March 10, 2023, 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 IDEA and Section 504 of the Rehabilitation Act of 1973 by withholding educational instruction from the student in direct response to the parent’s expressed intent to file a due process complaint against the school district. The parent seeks an Order declaring that school district unlawfully retaliated against the student, 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”), and awarding the student compensatory education (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 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 March 10, 2023, the School District appointed the undersigned to serve as the IHO in this matter (i.e., IHRS No. 597163). See 8 NYCRR § 200.5(j)(3)(i). On March 20, 2023, the School District served the parent with a combined verified answer and motion to dismiss the complaint (Ex. IHO-II). On May 25, 2023, the School District served the parent with an amended verified answer and motion to dismiss (Ex. IHO-III). See 8 NYCRR §§ 200.5(i)(4)-(5).
A pre-hearing conference with the parties was thereafter held on May 26, 2023 to clarify the hearing issues, to discuss consolidation of this case with other then-pending matters involving the same parties, and to address the School District’s motion to dismiss (R. 1-10). See 8 NYCRR § 200.5(j)(3)(xi).[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 the parent’s due process complaint was filed, i.e., March 10, 2023, 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] (hereinafter referred to as the “Home School District”). The Home School District is an elementary school district which ends at grade six. When children finish sixth grade at the Home School District, they have a choice between attending middle school and high school in two neighboring school districts. For all times relevant to this hearing, the parent has elected for the student to receive instruction from the School District. See Appeal No. 22-010 at 10 n. 13.
The student in this case has been the subject of eighteen (18) prior State-level administrative appeals.[4] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
The CSE developed an IEP for the student for the 2022/23 school year over two separate meetings held on August 1, 2022 and October 13, 2022. For the 2022/23 school year, the CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at [REDACTED] (hereinafter referred to as the “Recommended School District”), along with a 1:1 aide to navigate the building safely (Exs. IHO-II ex. 5 at ¶ 38, IHO-III at ¶ 30).
Due to the nearly continuous nature of the administrative due process proceedings and State-level appeals – and related federal district court proceedings – involving this student, he has been receiving his special education program under various pendency placements since approximately the 2015/16 school year. See generally Application of a Student was a Disability, Appeal No. 22-102. On September 20, 2019, the parties entered into a pendency agreement which, in sum and substance, provided that the student would receive related services in the District’s high school in the morning, including speech/language therapy, physical therapy, occupational therapy, and adaptive physical education. Thereafter, the student was to receive special education instruction in the local library, accompanied by an aide (Exs. IHO-II ex. 8, IHO-III at ¶¶ 24-25). See Application of a Student with a Disability, Appeal No. 23-022 at 3.
When the 2022/23 school year commenced in September, a contractual teacher who had been the student’s special education teacher since January of 2022, provided him with instruction called for under the 2019 Pendency Agreement (Exs. IHO-II ex. 5 at ¶ 31, IHO-III at ¶ 26). The contractual teacher was employed by an agency which possessed a contract with the student’s Home School District (Exs. IHO-II ex. 5 at ¶ 32, IHO-II at 27). On Friday, September 16, 2022, the contractual teacher resigned, and the District began efforts to secure a replacement teacher (Exs. IHO-II ex. 5 at ¶ 33, IHO-II at ¶ 28). Those efforts included posting a vacancy on the District’s website for a special education teacher to provide the student with pendency instruction, as well as canvasing thirteen agencies to fill the vacancy (Ex. IHO-II ex. 5 at ¶¶ 57-58, 60). Given the contractual teacher’s sudden resignation and the School District’s inability to locate a replacement teacher on short notice, the School District arranged for a permanent substitute teacher to provide instruction to the student starting on September 19, 2022 (Exs. IHO-II ex. 5 at ¶ 34, IHO-III at ¶ 29).
On October 14, 2022, the parent served the School District with a due process complaint alleging that the School District CSE’s recommendation for the student’s placement in the Recommended School District’s program would deprive him of a FAPE in the least restrictive environment (Exs. IHO-II ex. 5 at ¶ 39, IHO-III at ¶ 31). Pending the litigation concerning the suitability of the Recommended School District placement, the parent elected to continue the student in a pendency placement, being aware that pendency instruction was being provided by a substitute teacher and that the School District had been unsuccessful in its efforts to locate a replacement teacher (Exs. IHO-II ex. 5 at ¶ 40, IHO-III at ¶ 32).
On October 20, 2022, the parent wrote to the School District to express his objection to the student’s instruction by a teacher who was not certified in special education (Exs. IHO-II ex 2, IHO-II ex. 5 at ¶ 41, IHO-III at ¶ 33). In letters dated October 21, 2022 and October 24, 2022, the School District informed the parent that given its inability to secure a replacement teacher, and the parent’s objection to the substitute teacher (on certification grounds), it would cease providing the student with instruction at the local library and, effective October 24, 2022, it would transport the student home after receiving related services at the high school (Exs. IHO-II exs. 3, 4, 5 at ¶¶ 42, 45, IHO-III at ¶¶ 34, 38). On October 24, 2022, the student’s special education at the public library was suspended by the School District (Exs. IHO-II ex. 5 at ¶ 46, IHO-III at ¶ 40).[5]
On October 25, 2022, the parent filed a complaint and order to show cause in federal district court (Exs. IHO-II ex. 5 at ¶ 50, IHO-III at ¶ 41). On October 28, 2022, the Hon. Joanna Seybert, U.S.D.J., conducted a telephone hearing on the order to show cause (Exs. IHO-II ex. 5 at ¶ 51, IHO-II ex. 7, IHO-III at ¶ 42). During that hearing, the parent stated that he was willing to have the substitute teacher provide the student with instruction until a certified special education teacher could be found (Exs. IHO-II ex. 5 at ¶ 52, IHO-II ex. 7 at 17, IHO-III at ¶ 48). Thereafter, on October 31, 2022, the student resumed instruction at the local library provided by a substitute teacher on the School District’s staff (Exs. IHO-II ex. 5 at ¶ 52, IHO-III at ¶ 51).
IV. POSITIONS OF THE PARTIES
A. The School District The School District’s motion to dismiss the parent’s due process complaint should be granted. The parent’s due process complaint fails to state a claim upon which relief can be granted. The Second Circuit does not recognize IDEA-based retaliation claims. The parent’s claim of denied pendency instruction, for which he seeks compensatory education and removal of the School District’s PPS Director for the student’s CSE, is barred by the twin principles of res judicata and collateral estoppel (Exs. IHO-II, IHO-III).
B. The Parent The School District’s motion to dismiss should be denied in its entirety. The parent never consented to the provision of special education instruction to the student by a non-certified teacher. The School District did not restaff a teacher for the student until ordered to do so by Judge Seybert. The School District’s decision to withdraw instruction from the student in October 2022 breached the student’s pendency rights. There is no controlling legal authority within the Second Circuit which prevents IDEA-based retaliation claims from being heard. The School District’s retaliatory suspension of pendency instruction for the student denied him a FAPE (Exs. IHO-I, IHO-IV).
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).[6]
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 March 20, 2023, the School District moved to dismiss the parent’s due process complaint (Ex. IHO-II). Decision on the School District’s motion was reserved until after a pre-hearing conference with the parties was held on May 26, 2023, and until after the parties were given the opportunity to submit supplementary briefs supporting their respective positions, as an evidentiary record must be established to provide an adequate record for review. 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). I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the School District’s motion to dismiss.
C. Retaliation Claims The crux of the parent’s complaint is that the School District withheld pendency-based instruction from the student from October 24, 2022 through October 28, 2022 in retaliation for his objection to the student’s instruction by an uncertified substitute teacher and his indication that he would “file yet another complaint” over the matter (Exs. IHO-I, IHO-II ex. 1 at ¶¶ B-15, C, IHO-II ex. 2).
The School District’s motion to dismiss the parent’s IDEA and Section 504 retaliation claims is granted, as I find that I lack the necessary subject matter jurisdiction to review those claims.
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, the District has not appointed me to hear the parent’s Section 504 claims through the IDEA impartial hearing procedures (Ex. IHO-III at ¶ 64). See 34 C.F.R. § 104.36.
Likewise, State law does not make provision for review of Section 1983 or Section 504 claims through the State-level appeals process authorized by the IDEA and the Education Law. See N.Y. Educ. Law § 4404(2) (providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"). Therefore, prior SROs have advised the parent that they have no jurisdiction to review any portion of the parent's claims regarding retaliation. See Application of a Student with a Disability, 22-168 at 14; Application of a Student with a Disability, Appeal No. 19-121 at 16-17; see also A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 n.17 (E.D.N.Y. 2012) ("Under New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"); D.C. v. New York City Dep't of Educ., 950 F. Supp. 2d 494, 507 (S.D.N.Y. 2013).[7]
As to IDEA-based retaliation claims, one court within the Second Circuit has concluded that the “IDEA does not protect individuals from retaliation for attempting to enforce the IDEA,” see Collins v. City of New York, 156 F. Supp. 3d 448, 457 (S.D.N.Y. 2016), and the parent has offered no authority holding to the contrary (Ex. IHO-IV art 6).
Based upon the foregoing, the parent's retaliation claims do not demonstrate a denial of FAPE as they lack sufficient specificity to state any cognizable IDEA claim for the "the identification, evaluation, or educational placement" of the student upon which relief could be granted, and therefore, the parent's retaliation claims will be dismissed. See 20 U.S.C. § 1415(b)(6)(A); N.Y. Educ. Law § 4404(1); 8 NYCRR § 200.5(i)(1); Winkelman, 550 U.S. at 531.
D. Res Judicata/Collateral Estoppel The parent also asserts that the School District’s decision to withdraw instruction from the student breached the student’s pendency rights for which he seeks compensatory education and the removal of the School District’s PPS Director from the student’s CSE (Exs. IHO-I, IHO-IV at 6). The School District has moved to dismiss that claim as barred by the twin doctrines of res judicata and/or collateral estoppel (Exs. IHO-II, IHO-III).
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 "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).
The related 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).
1. Denial of Pendency Instruction
As the issue of the School District’s suspension of the student’s pendency instruction during the week of October 24, 2022 was previously raised and adjudicated in a separate matter involving the same parties, I find that the parent is now barred by the twin principles of res judicata and collateral estoppel from relitigating that claim in this proceeding.
On October 31, 2022, the parent filed a complaint in IHRS No. 588788 which alleged that the School District “breached the terms of pendency by staffing a teacher that is not certified as a special education instructor to teach the complainant's core academic instruction and special instruction” and sought a judgment of compensatory education (Ex. IHO-III at ¶ 107 ex. 11 at ¶¶ 4(a)-4(b)). IHRS No. 588788 was later consolidated with IHRS No. 580008 and a Findings of Fact & Decision (“FOFD”) in IHRS No. 580008 was rendered on April 28, 2023 (Ex. IHO-III at ¶ 108 ex. 12 at 7).
In the April 28, 2023 FOFD, I found that the School District’s suspension of instruction during the week of October 24, 2022 breached the pendency placement agreed upon by the parties in 2019 (Exs. IHO-II ex. 8, IHO-III at ¶ 110 ex. 12 at 34). To remedy that breach, I directed the District to provide the student with ten (10) hours of special education instruction and six (6) hours of special instruction as make up services, to be completed within one year of the date of the April 28, 2023 FOFD (Ex. IHO-III at ¶ 111 ex. 12 at 38-39). While either party was entitled to appeal the April 28, 2023 FOFD to the SRO, see N.Y. Educ. Law § 4402(2); 8 NYCRR § 200.5(k), the parent is barred by res judicata and collateral estoppel from relitigating that issue here.
2. Removal of School District’s PPS Director from the CSE
Among other relief for the alleged retaliation, the parent seeks the removal of the School District’s PPS Director from the student’s CSE (Exs. IHO-I, IHO-II ex. 1 at ¶ C). As that identical issue has been raised and litigated in prior proceedings, I find that the parent is barred by collateral estoppel from relitigating that issue here.
The issue of the authority of an IHO to remove the CSE chairperson was raised by the parent in three prior proceedings. See Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 22-147; Appeal of C.K., 61 Ed. Dep't Rep., Decision No. 18,069 (2022), available at http://www.counsel.nysed.gov/Decisions/ volume61/d18069.
In a November 12, 2021 Decision & Order in IHRS No. 556183, 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 (Ex. IHO-II ex. 10 at 14). See 20 U.S.C. § 1415(b)(6)(A); N.Y. Educ. Law § 4404(1); 8 NYCRR § 200.5(i)(1). 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 § 200.5(k). In a decision dated January 28, 2022, the SRO dismissed the parent’s appeal as untimely. See Application of a Student with a Disability, Appeal No. 21-249 at 5.
In Appeal of C.K., the Commissioner of Education denied the parent’s application to remove the School District’s then-PPS Director based on precedent holding that a director of pupil personnel is a school employee, not a school officer subject to removal under Education Law § 306. Appeal of C.K., 61 Ed. Dep't Rep., Decision No. 18,069 (2022) citing Application of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,452; Appeals of Gonzalez, 48 Ed. Dep’t Rep. 405, Decision No. 15,898.
I have considered the parent’s remaining claims and find that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The School District’s motion to dismiss the parent’s complaint in IHRS No. 597163 is GRANTED and the parent’s due process complaint is hereby DISMISSED.
Dated: June 22, 2023
/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 No. 597163), rec’d 3/10/23, 2 pgs.
II. District’s Combined Verified Answer & Motion to Dismiss, 3/20/23, 25 pgs.
Ex. 1 – Due Process Complaint (IHRS No. 597163) w/ inferred paragraph nos., 3/10/23,
2 pgs.
Ex. 2 – Email from parent, 10/20/22, 1 pg.
Ex. 3 – Letter to parents from Director PPS, 10/21/22, 1 pg.
Ex. 4 – Letter to parents from Superintendent, 10/24/22, 1 pg.
Ex. 5 – Affidavit of Director PPS (IHRS No. 580008), 2/8/23, 51 pgs.
Ex. 6 – Hearing Transcript (IHRS No. 580008), 2/27/23, 118 pgs.
Ex. 7 – OTSC Hearing Transcript (22 cv 6467), 10/28/22, 33 pgs.
Ex. 8 – Pendency Agreement, 9/20/19, 3 pgs.
Ex. 9 – Email from parent, 10/22/22, 1 pg.
Ex. 10 – Decision & Order (IHRS No. 578158), 12/14/22, 17 pgs.
III. District’s Amended Verified Answer & Motion to Dismiss, 5/25/23, 28 pgs.
Ex. 11 – Due Process Complaint (IHRS No. 588788), 10/31/22, 1 pg.
Ex. 12 – Finding of Fact & Decision (IHRS No. 580008), 4/28/23, 42 pgs.
IV. Parent’s Affirmation in Opposition to District’s Motion, undated, 8 pgs.
IV. Extension Order, 5/24/23, 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.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter once in order to accommodate the agreed upon motion calendar. In considering that request, I weighed the cumulative impact of the relevant factors and found that the stated reason for the extension justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, the request for an extension of the case compliance date was granted (R. 7-9; Ex. IHO-IV). 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. 23-022; Application of a Student with a Disability, Appeal No. 22-168; Application of a Student with a Disability, Appeal No. 22-163; Application of a Student with a Disability, Appeal No. 22-168; Application of a Student with a Disability, Appeal No. 22-147; 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] The parent also claims that the retaliatory purpose of the withheld instruction was evidenced by testimony given by the District’s Director of Pupil Personnel Services (“PPS Director”) in a related matter (Exs. IHO-I, IHO-II ex. 1 at ¶ B-8, IHO-II exs. 3-4, IHO-III at ¶ 57). At a February 27, 2023 hearing in IHRS No. 580008, the District’s PPS Director testified that “in response to your Complaint and threat of litigation, [the District] determined that it would cease the instruction until a suitable certified person could be found” (Exs. IHO-II ex. 6 at 391, IHO-III at ¶ 58).
[6] 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.
[7] The parent has been previously instructed that claims of retaliation should be presented to a court of competent jurisdiction, see Appeal of C.K., 61 Ed. Dep't Rep., Decision No. 18,069 (2022) citing Weixel v Board of Educ. of City of New York, 287 F3d 138, 148 (2d Cir 2002), or the Office of Civil Rights, see Application of a Student with a Disability, Appeal No. 22-168 at 13, citing 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1); 8 NYCRR 200.5(i)(1).