New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249268

Student’s Name: [REDACTED]

School District: N.Y.C. Dep’t. of Educ.

Impartial Hearing Officer: John Henry Olthoff

Date of Filing: 06/26/2023

Hearing Requested by: Parent

Date of Hearing: 08/15/2023, 08/23/2023, 08/31/2023

Date of Decision: 09/18/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2023

[REDACTED], Attorney — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2023

[REDACTED], Attorney — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2023

[REDACTED], Attorney — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 31, 2023

[REDACTED], Attorney — Student

[REDACTED] — Parents

[REDACTED], Attorney — DOE

BACKGROUND

On June 16, 2023, Parent, through counsel, initiated a due process complaint (“DPC”) against Respondent, New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), the Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5, and Section 504 of the Rehabilitation Act. On June 21, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.

A Settlement and Pre-Hearing Conference (“PHC”) was held on August 1, 2023. The substantive due process hearing took place on August 15, 23, and 31, 2023. DOE submitted a partial Motion to Dismiss (“MTD”) on the basis of collateral estoppel/res judicata on August 17, 2023 (IHO Ex. I) ^[1], and Parent submitted their opposition the same date. (IHO Ex. II). At the impartial hearing, DOE entered seven (7) documents into the record. Parent entered seven (7) documents and presented Parent as a witness.

DOE’s Position

Parent’s requested relief; i.e., reimbursement for expenses incurred during the 2021-2022 school year (“21/22 SY”) transporting Student to and from Special Education Teacher Support Services (“SETSS”) sessions provided pursuant to a prior Resolution Agreement should be barred by the doctrine of res judicata. DOE has asserted that the January 28, 2022 Resolution Agreement in IHO Case No. 220347, designated as Ex. 2b in DOE’s Motion to Dismiss (IHO Ex. I), which notes “[t]his agreement is the complete settlement of all claims contained in the impartial hearing request dated 10/25/2021 and filed by the parent,” forecloses any additional claim for relief concerning the 21/22 SY for Student.

Parent’s Position

Parent asserts that, because transportation to and from the services that DOE agreed to provide was necessary, that Parent is entitled to reimbursement for this expenditure. (See, generally, Ex. A). Parent’s Counsel stated that because “transportation” did not appear in the four corners of the DPC, that the cost of transportation to and from special education services provided during the 21/22 SY is separate from the issues decided in the Resolution Agreement. (Tr. 44-46).

For the following reasons, I find that DOE is responsible for reimbursing Parent for the cost of transporting Student to and from special education services during the 21/22 SY.

LEGAL FRAMEWORK

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).

Under IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York, the school district- bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).

Dual Enrollment

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); N.Y. Educ. Law§ 4402(2)(a), (b)(2)). IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 C.F.R. 300.137(a)). Under the New York Education Law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (N.Y. Educ. Law § 3602-c(2)). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (N.Y. Educ. Law§ 3602-c(2)(b)(l)).

The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (N.Y. Educ. Law § 3602-c(2)(a)). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (N.Y. Educ. Law § 3602-c(2)(b)(1)). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.

Transportation

New York State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” N.Y. Educ. Law §§ 4401(1) (emphasis added); 4402(4)(a); see also N.Y. Educ. Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401[26]; 34 C.F.R. 300.34[a], [c][16].

The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the District’s obligation to provide a student with a FAPE. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992).

If the DOE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); 8 N.Y.C.R.R. § 200.1[ww].

Res Judicata

The doctrine of res judicata, literally, “a thing decided,” or “claim preclusion, prevents parties from ‘relitigating issues that were or could have been raised’ in a prior proceeding.” Jenn-Ching Luo v. Baldwin U.F.S.D., 2016 U.S. Dist. LEXIS 3616; 2106 WL 154091 (E.D.N.Y. 2016), citing Monahan v. N.Y. City Dep’t of Corr., 214 F. 3d 275, 284-85 (2d Cir. 2000) (quoting Allen v. McCurry, 49 U.S. 90, 94, 101 S. Ct. 411, 414 (1980)). Courts in the Second Circuit have applied the doctrine of res judicata to “administrative proceedings when the agency is acting in a judicial capacity.” Luo, supra, citing K.B. v. Pearl River U.F.S.D., 2012 U.S. Dist. LEXIS 13539, 2012 WL 234392 (S.D.N.Y. 2012) (“it is well-settled that res judicata applies to administrative proceedings when the agency is acting in a judicial capacity…Courts in this circuit regularly apply the doctrine to IDEA cases, and the Court sees no reason why it should not apply here.”) (emphasis original). See also 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 U.S. Dist. LEXIS 91450, 2006 WL 3751450 (N.D.N.Y. 2006).

Res judicata applies to defense of claims as well as the claims themselves. See, e.g., Taylor v. Sturgell, 553 U.S. 880 (2008). “[A] losing litigant deserves no rematch after a defeat fairly suffered.” Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 107 (1991). Res judicata applies to the sword as well as the shield.

Claims are often found to be barred from relitigation by the New York State Education Department’s Office of State Review (“SRO”). See SRO Appeal No. 21-143; SRO Appeal No. 20-165; SRO Appeal No. 19-121 ("In considering the parent's claims relevant to the 2019-20 school year, it was "important to take into account prior school year determinations and the extent to which a student's needs have changed, the progress the student has made since his previous IEP was developed, and the extent to which the district's available continuum of programs ha[s] changed during the intervening period, if at all," (determining that it is appropriate to limit the scope of the impartial hearing to relevant factual matters that differ compared to the prior school years.)); SRO Appeal No. 05-056 ("Principles of res judicata and collateral estoppel support the concept that once an issue or claim is dismissed in one proceeding, principles of finality dictate that it may not then be the subject of another proceeding.").

For res judicata to apply, “a party must show that 1) the previous action involved an adjudication on the merits; 2) the previous action involved the Plaintiffs or those in privity with them; and 3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Grenon, supra, at *16-17, quoting Monahan v. N.Y. City Dep’t of Corr., 214 F.3d 275, 285 (2d Cir. 2000). 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. 2013). In determining whether the same nucleus of operative facts is at issue, consideration is given to “whether the facts are related in time space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations of business understanding or usage.” Theodore v. Dist. of Columbia, 772 F. Supp.2d 287, 294 (D.D.C. 2011); see also SRO Appeal No. 21-121.

Findings of a hearing officer or administrative agency that are not appealed have a preclusive effect on subsequent claims. G.V. v. Bd. of Educ. of W. Genesee Cent. Sch. Dist., 5:15CV-1173 (GLS/TWD) (N.D.N.Y. 2017) (barring relitigation of 504 and ADA claims where the hearing officer, in the prior case, found no violation, the SRO declined to review findings on jurisdictional grounds, and plaintiff failed to appeal the determination of the SRO); citing C.F. ex.

Rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014). It is clear that a dismissal, with prejudice, arising out of settlement agreement operates as a final judgment for res judicata purposes. Marvel Characters, Inc. v. Simon, 310 F.3d 280. 287 (2d Cir. 2002); see, e.g., Nemaizer v. Baker, 793 F.2d 58, 60-61 (2d Cir. 1986). It is equally well settled, however, that a prior judgment "cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case." Marvel Characters, supra, citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328, 99 L. Ed. 1122, 75 S. Ct 865 (1955). Likewise, res judicata does not bar subsequent litigation when the court in the prior action could not have awarded the relief requested in the new action. See, e.g., Leather

v. Eyck, 180 F.3d 420, 425 (2d Cir. 199); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). By “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,” res judicata protects against “the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153–154, 99 S. Ct. 970, 59 L.Ed.2d 210 (1979).

FINDINGS OF FACT

After considering all the evidence, as well as Counsels’ arguments, this IHO’s Findings of Fact are as follows:

1. Student is a [REDACTED] year-old student with a disability. (Ex. B).

2. DOE created an IESP for Student on October 5, 2021 (“21/22 IESP”). (Id.).

3. On October 25, 2021 Parent initiated a DPC in IHO Case No. 220347 to secure the services on the 21/22 IESP; namely, five (5) periods per week of SETSS at an enhanced rate during the 21/22 SY. (Ex. 2 of IHO Ex. I).

4. The DPC does not request transportation services to and from where Student would receive SETSS. (Id).

5. Parent and DOE entered into a Resolution Agreement on January 28, 2022, wherein DOE agreed to provide five (5) periods of SETSS per week at the enhanced rate of $150.00/session during the 21/22 SY. (Ex. 2b of IHO Ex. I).

6. The Resolution Agreement indicates that it is “the complete settlement of all claims contained in the impartial hearing request dated 10/25/2021 and filed by the parent.” (Id.).

7. The Resolution Agreement does not include transportation. (Id.).

8. Student could not access the SETSS services without transportation. (Ex. G; Tr. 59-60).

9. Parent paid $4,706.00 for transportation to and from SETSS services during the 21/22 SY. (Exs. D, G).

ANALYSIS AND CONCLUSIONS OF LAW

There is no dispute that Student was entitled to services pursuant to the IESP dated October 5, 2021. (Ex. B). There is likewise no dispute that Parent’s claim for SETSS services was resolved via the January 28, 2022 Resolution Agreement. (Ex. 2b of IHO Ex. I). Parent incurred the cost of transporting Student to and from the SETSS services during the 21/22 SY. (Exs. D, G).

The issue of transportation to and from SETSS services was not raised in the “four corners” of the DPC in IHO Case No. 220347. (Ex. 2 of IHO Ex. I). Parent’s Counsel is therefore correct that the claim for transportation is “separate and apart from payment for SETSS.” (Tr. 46).

However, the fact remains that because Parent knew or should have known that transportation to and from the SETSS services was necessary at the time, the issue of reimbursement could have been raised in settlement negotiations. Parent’s Counsel admitted as much. (Tr. 46-47) ^[2]. It would therefore appear that Parent’s claim in the instant case is barred by res judicata, as DOE contends.

Yet, the law is clear that the responsibility to provide transportation to and from special education services lies squarely on the district. 20 U.S.C. § 1401[26]; 34 C.F.R. 300.34[a], [c][16]; Sobol, supra.

If Parent were trying to re-litigate an issue concerning Student’s 21/22 SY, including, inter alia, whether DOE offered or provided a FAPE, or whether Parent were trying to recoup the expense of other services not contemplated in the Resolution Agreement, then I would be inclined to rule in DOE’s favor. Here, however, ordering DOE to reimburse Parent for the costs she incurred as a result of Student’s attendance at DOE-funded essential special education services, is simply a matter of holding DOE responsible for costs it should have borne in the first instance.

DECISION AND ORDER

IT IS HEREBY ORDERED that DOE shall, upon presentation of proof of payment, reimburse Parent in the amount of $4,706.00, for the cost of transporting Student to and from special education services during the 21/22 SY; and it is further

ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, and at least three (3) days in advance of any such meeting.

Dated: New York, NY

September 18, 2023

/s: John Henry Olthoff/

John Henry Olthoff, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD BY DOE

Date Description # of Pages

1 06/27/2023 DPC 4

2 10/05/2021 IESP 13

3 10/06/2021 Prior Written Notice 6

4 12/17/2018 Psychoeducational Evaluation Report 7

5 10/05/2021 Counseling Progress Report 1

6 06/04/2021 Speech and Language Therapy Report 2 7 10/05/2021 Teacher Report 3

DOCUMENTATION ENTERED INTO THE RECORD BY PARENT

Date Description # of Pages

A 06/27/2023 Parent’s Due Process Complaint 4

B 10/05/2021 IESP 15

C Various Vendor’s Service Forms 12

D Various Invoices from Car Service 10

E Various Transportation Reimbursement Voucher 20

F 10/19/2021 Authorization for Independent SETSS 1

G Undated Affidavit of Parent 1

DOCUMENTATION ENTERED INTO THE RECORD BY IHO

I 08/17/2023 DOE MOTION TO DISMISS 101

II 08/17/2023 PARENT OPPOSITION TO MOTION TO DISMISS 2

NOTICE OF RIGHT TO APPEAL

Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.

Footnotes

[1] “(Ex. ___)” or “(Exs. __)” refers to an exhibit or exhibits entered into the record at the impartial hearing, while “(Tr. __)” refers to the page number in the hearing transcript.

[2] Parent’s Counsel is advised to include any and all claims and expenses arising from the same factual nexus of DPC in any future resolution or settlement agreements.