STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-339
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, Esq.
I. Introduction
This 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which dismissed, with prejudice, her request that respondent (the district) fund the costs of her son's private services for the 2024-25 school year. The district cross-appeals, asserting that the IHO lacked subject matter jurisdiction to hear the parent's claims. The appeal must be sustained. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 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" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An 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 business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[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 45 days after the expiration period or adjusted period for the resolution process (34 CFR 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 (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
Given the IHO's dismissal of this matter on procedural grounds prior to an impartial hearing on the merits, a detailed recitation of the student's educational history is not possible.
According to a prior written notice, a CSE convened on April 9, 2024, determined that the student continued to be eligible for special education as a student with a speech or language impairment, and developed an IESP (see May 2024 Prior Written Not.). The April 2024 CSE had before it a February 20, 2024 speech and language assessment and an April 8, 2024 psychoeducational assessment (id. at p. 1). The April 2024 CSE recommended that the student receive special education teacher support services (SETSS) and individual speech-language therapy (id.).
Prior to the present matter, the parent pursued an impartial hearing to address the district's failure to implement the student's mandated services during the 2024-25 school year (prior proceeding) (see IHO Exs. II at pp. 4-12; IV-VII). In particular, on July 15, 2024, the parent, through a lay advocate, filed a due process complaint notice relating to the 2024-25 school year requesting an award of three periods per week of SETSS and two 30-minute sessions per week of speech language therapy based on the April 2024 IESP at enhanced rates (IHO Ex. IV at p. 1). The parent further requested an award of compensatory education for any hours of services missed during the 2023-24 and 2024-25 school years (id.). The parent requested pendency pursuant to the April 2024 IESP (id. at pp. 1-2).
An IHO from the Office of Administrative Trials and Hearings (OATH) was assigned to preside over the 2024-25 proceeding (prior IHO) and conducted a prehearing conference on August 22, 2024 at which she notified the parent's advocate that the parent's claims for the 2024-25 school year were not ripe because the 2024-25 school year had not yet begun and the district had therefore not failed to provide the student's special education and related services (IHO Ex. V at pp. 1, 7-9). The prior IHO conducted a status conference on September 9, 2024 during which she encouraged the parent's advocate to withdraw the July 15, 2024 due process complaint notice without prejudice and to refile it once the claims were ripe (IHO Ex. VI at pp. 1, 7, 13). The impartial hearing in the prior proceeding took place on October 9, 2024 (see IHO VII).
In a decision dated October 10, 2024, the prior IHO dismissed the parent's claims with prejudice, finding that the parent's July 15, 2024 due process complaint was prematurely filed and that the parent failed to prove her claim for an award of compensatory education for the 2023-24 and 2024-25 school years and declining to award pendency (IHO Ex. II at pp. 4-12). The parent did not appeal the prior IHO's dismissal with prejudice.
A. Due Process Complaint Notice
Turning to the present matter, in a due process complaint notice dated December 18, 2024, the parent, through her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year by failing to implement the student's April 2024 IESP (see IHO Ex. I). The parent requested an order of pendency based on the April 2024 IESP (id. at p. 2). For relief, the parent requested the district be required to pay for services delivered by private providers at enhanced rates and fund a bank of compensatory education for periods of SETSS and speech-language therapy services missed during the 2024-25 school year (id. at p. 3).
B. Impartial Hearing and Impartial Hearing Officer Decision
On April 14, 2025, the district made a motion to dismiss the parent's December 2024 due process complaint based on the doctrine of res judicata, arguing that the issues contained in the parent's December 2024 due process complaint notice were identical to the claims that had already been adjudicated by the prior IHO (see IHO Ex. II). On April 15, 2025, a different IHO from OATH was appointed to hear the matter (the IHO) (IHO Decision at p. 2). The parent's attorney submitted an opposition to the district's motion to dismiss, dated April 24, 2025, arguing that the parent's July 2024 due process complaint alleged separate causes of action from the parent's December 2024 due process complaint and asserting that the student was entitled to pendency as a right separate and apart from the due process hearing (see IHO Ex. III). The parent's attorney withdrew the parent's request for compensatory education services (id. at p. 4). A prehearing conference was held on April 28, 2025 at which the IHO addressed the district's motion to dismiss and the parent's request for pendency (IHO Decision at p. 2; Tr. pp. 1-9).
In a decision dated April 29, 2025, the IHO dismissed the parent's December 2024 due process complaint with prejudice and held that the student was not entitled to pendency (IHO Decision at pp. 1, 2). The IHO noted that the prior IHO dismissed the parent's July 2024 due process complaint notice claims "with respect to IESP implementation for the 2024-2025 school year and pendency with prejudice" on October 10, 2024 and that the parent could have appealed the prior IHO's decision but did not (id. at p. 3). The IHO further noted that "[a]n IHO's decision that the hearing is withdrawn with or without prejudice is binding unless the party appeals the decision to the State Review Officer" (id. at p. 2). The IHO found that "the initial matter was litigated on the merits at the October 2024 hearing, and Parent brought forth the present claims at that time" (id. at p. 4). The IHO held that, although the parent's July 2024 due process complaint was filed before the claims were ripe and the parent's December 2024 due process complaint was filed when the parent's claims were ripe, "such a difference [wa]s not sufficient to preclude the doctrine of res judicata, as the three-factor test ha[d] already been met: the parties [we]re the same, the claim [wa]s the same, and the matter ha[d] already been litigated on the merits" (id.). The IHO held that the parent's request for pendency had no valid due process claims to which to attach (id.). The IHO ordered that the parent's December 2024 due process complaint be dismissed with prejudice (id. at p. 5).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the claims in the parent's December 2024 due process complaint were identical to the claims contained in the parent's July 2024 due process complaint notice and that the IHO erred in dismissing the parent's December 2024 due process complaint notice on the grounds of res judicata. The parent asserts that the IHO should have granted the parent's request for pendency because pendency is a separate right that is not contingent on the merits of the underlying dispute. The parent argues that public policy favors that the case be adjudicated on the merits and that the student is entitled to pendency based on the services mandated in the April 2024 IESP.
In an answer and cross-appeal, the district asserts that the IHO was correct in dismissing the parent's claims based on the doctrine of res judicata. As its cross-appeal, the district alleges that the IHO also should have dismissed the parent's December 2024 due process complaint for lack of subject matter jurisdiction. The district alleges that there is no federal right to file a due process claim regarding an IESP's recommended services and that Education Law § 3602-c limits the subject matter of due process complaints that may be brought, specifically omitting claims relating to implementation of equitable services or disputes regarding enhanced rates.
In an answer to the cross-appeal, the parent asserts that the district is incorrect in its claim that the July 2024 due process complaint was adjudicated on the merits. The parent argues that the prior IHO did not consider whether the private services, for which the parent contracted for the student's 2024-25 school year, were appropriate to meet the student's unique needs. The parent asserts that the district's argument that IHOs and SROs lack subject matter jurisdiction of implementation claims is incorrect and frivolous.
V. Applicable Standards
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][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location 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 (Educ. Law § 3602-c[2]).[1] "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" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services 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]" (Educ. Law § 3602-c[2][b][1]). 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 (id.).[2] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
Initially, it is necessary to address the district's contention in its cross-appeal that the IHO lacked subject matter jurisdiction over this matter. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-298; Application of a Student with a Disability, Appeal No. 25-293; Application of a Student with a Disability, Appeal No. 25-459; Application of a Student with a Disability, Appeal No. 25-242; Application of a Student with a Disability, Appeal No. 25-300; Application of a Student with a Disability, Appeal No. 25-127; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137[a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services 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]" (Educ. Law § 3602-c[2][b][1]).[3]
Concerning students who attend nonpublic schools, Education Law § 3602-c provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[4] In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.[5]
After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[6]
In its answer and cross-appeal, the district contends that, under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services. Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[7] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 Fed. App'x 461, 465 [2d Cir. Nov. 12, 2009]; quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id. at p. 7).[8] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that, within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.
Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO lacked subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Res Judicata
Turning to the parent's appeal of the IHO's dismissal of her December 2024 due process complaint notice pursuant to the doctrine of res judicata, 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). 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]).[9]
Here I find that the parent's argument that res judicata should not apply—because the elements of res judicata have not been met—to be persuasive. The parent is correct in asserting that the IHO's findings of fact and decision did not involve an adjudication on the merits. The prior IHO dismissed the parent's implementation claims for the 2024-25 school year on the grounds of ripeness, declining to make a determination whether the district failed to arrange for delivery of mandated services, whether the private services the parent unilaterally obtained for the 2024-25 school year were appropriate to meet the student's unique needs, or whether equitable considerations supported the parent's requested relief (see IHO Ex. II at pp. 4-12).[10]
Generally, a dismissal on jurisdictional grounds, such as ripeness, "is not an adjudication of the merits, and hence has no res judicata effect" (K.C., 2017 WL 2417019, at *7, quoting St. Pierre v. Dyer, 208 F.3d 394, 400 [2d Cir. 2000]; see Rosendale v. Brusie, 374 Fed. App'x 195, 197 [2d Cir. Apr. 22, 2010] [holding that the discussion of the merits of plaintiff's claims in a prior case had no res judicata effect on subsequent proceeding because prior case was dismissed on ripeness grounds]). Here, while the prior proceeding precludes re-litigation of the issue of justiciability actually determined, it does not preclude the present matter on the parent's underlying claims insofar as the ripeness defect has been overcome (Stengel v. Black, 486 Fed. App'x 181, 183 [2d Cir. June 21, 2012]). Here, there can be no dispute that the parent's implementation claims had become ripe as of the date of her December 2024 due process complaint notice in the present matter.
Thus, because there has not been "an adjudication on the merits," res judicata cannot act as a bar to the parent's claims in the present matter.
As the IHO's res judicata reasoning is without merit, the IHO's related contention that she was "precluded from proceeding to a[] hearing on the merits pursuant to the doctrine of res judicata" is also without merit (IHO Decision at p. 4). When an IHO has not addressed the issues raised in a due process proceeding, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims or arguments that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]). In this case, the IHO made no findings with respect to the issues raised in the parent's due process complaint notice following her determination that the doctrine of res judicata precluded her from proceeding to a hearing on the merits. Therefore, the case must be remanded for evidentiary proceedings. Upon remand, the parties shall be allowed the opportunity to present evidence establishing the student's educational placement during the pendency of this proceeding; if appropriate, the IHO shall issue an order for maintenance of the student's pendency services unless the parties enter into an agreement therefor; the parties shall be permitted to present evidence to address the issues raised in the parent's due process complaint notice, including the district's alleged failure to implement services mandated in the IESP for the 2024-25 school year and the parent's requested relief; the evidence submitted by the parties during the impartial hearing shall be analyzed using the Burlington-Carter three-pronged test; and a written decision on the merits of the parent's claims shall be issued.[11]
VII. Conclusion
For the reasons set forth above, the matter is remanded to the IHO for a determination on the merits regarding whether the district offered the student a FAPE for the 2024-25 school year and for evidentiary proceedings to determine the student's pendency, unless the parties agree otherwise. If the IHO finds that the district failed to offer the student a FAPE, then the IHO must determine whether the student's unilaterally obtained services were appropriate and, if so, whether equitable considerations favor awarding the relief requested by the parent.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision, dated April 29, 2025, is modified by reversing those portions which dismissed the parent's case on the basis of res judicata; and
IT IS FURTHER ORDERED that this matter is remanded to the IHO to determine the merits of the unaddressed issues regarding the provision of a FAPE to the student, as set forth in the parent's December 18, 2024 due process complaint or as otherwise clarified by the parties upon remand, and, if necessary, to determine the appropriateness of the educational services provided to the student, whether the student was entitled to pendency, and whether equitable considerations support the parent's requested relief; and
IT IS FURTHER ORDERED that, in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed.
Dated: May 12, 2026
Carol H. Hauge
STATE REVIEW OFFICER
Footnotes
[1] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[2] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[3] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[4] In 2004, the State Legislature amended subdivision two of the Education Law § 3602-c, effective June 1, 2005 (see L. 2004, ch. 474 § 2 [Sept. 21, 2004]). Prior to such date, the subdivision read, in part, as follows:
Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.
(L. 1990, ch. 53 § 49 [June 6, 1990] [emphasis added]). The amendments that took effect on June 1, 2005, removed the last sentence of subdivision two relating to the review of a board of education's failure or refusal to provide equitable services by the Commissioner (L. 2004, ch. 474 § 2). A review of the statute's history and the New York State Assembly Memorandum in Support of Legislation shows that the Legislature intended to remove the language that an appeal to the Commissioner of Education under Education Law § 310 was the exclusive vehicle for review of the refusal or failure of a board of education to provide services in accordance with Education Law § 3602-c, as the earlier sentence in subdivision two of such section authorized review by an SRO from a district CSE's determination in accordance with Education Law § 4404 (Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). The Memorandum further explained:
The language providing for review of a school district's failure or refusal to provide services ONLY in an appeal to the Commissioner of Education under Education Law § 310 is unnecessary, confusing and in conflict with the earlier language authorizing review by a State review officer pursuant to § 4404(2) of the Education Law of a committee on special education's determination on review of a request for services by the parent of a nonpublic school student. At the time it was enacted, the Commissioner of Education conducted State-level review of an impartial hearing officer's decision under § 4404(2) of the Education Law in an appeal brought under § 310 of the Education Law, but that is no longer the case. The Commissioner has jurisdiction under Education Law § 310 to review the actions or omissions of school district officials generally, so it is unnecessary to provide for such review in § 3602-c and, now that a State review officer conducts reviews under section 4404 (2), it is misleading to have the statute assert that an appeal to the Commissioner is the exclusive remedy.
(Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). Thus, the legislative amendments were intended to clarify the forum where disputes could be brought, not to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404.
[5] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1. For example:
Questions and Answers
1. What does "dual enrollment" mean?
Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.
("Dual Enrollment Programs," available at https://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[6] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available at https://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however, enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[7] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs, resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; however, it has been added to the administrative hearing record.
[8] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.
[9] In addition to res judicata, parties are also limited by the doctrine of collateral estoppel (or issue preclusion), which "precludes parties from litigating 'a legal or factual issue already decided in an earlier proceeding'" (Grenon, 2006 WL 3751450, at *6, quoting Perez, 347 F.3d at 426). 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.
(Grenon, 2006 WL 3751450, at *6 [internal quotations omitted]).
[10] "An issue is ripe for judicial resolution only if it presents 'a real, substantial controversy, not a mere hypothetical question"' (Longway v. Jefferson Cnty. Bd. of Sup'rs, 24 F.3d 397, 400 [2d Cir. 1994], quoting AMSAT Cable Ltd. v. Cablevision of Conn., Ltd. P'ship, 6 F.3d 867, 872 [2d Cir.1993] [internal quotations and citations omitted]). In other words, "a case . . . lack[s] ripeness when it involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all" (AMSAT Cable Ltd., 6 F.3d at 872 [internal quotation marks omitted]).
[11] In this matter, it appears that the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]). The parent's request for district funding of privately obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[11] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).