The State Education Department
State Review Officer

 

No. 05-072
 

 Application of a CHILD 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:
Law Offices of George Zelma, attorney for petitioner, Anton Papakhin, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Kimberly Conway, Esq., of counsel

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer, which denied her request to be reimbursed for her son's tuition costs for the LEGACY program at Xaverian High School for the 2004-05 school year.  The appeal must be dismissed.

            Initially, a procedural matter must be addressed.  Petitionerís reply raises additional allegations in response to respondent's answer.  Pursuant to the Regulations of the Commissioner of Education, a reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer (8 NYCRR 279.6).  Consequently, I have not considered those allegations raised by petitioner in her reply which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence served with the answer (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 98-37).                     

            At the commencement of the impartial hearing in March 2005, the student was 15 years old and classified as a student with a learning disability (LD) (Tr. pp. 3, 21, 60; Parent Ex. B at p. 1).  The student's eligibility for special education programs and classification as LD are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]). 

Respondent's Committee on Special Education (CSE) initially classified the student on August 20, 2003, and developed an individualized education program (IEP) for the 2003-04 school year that recommended a 12:1 student to staff ratio special class in a community school with the related services of occupational therapy (OT) and speech-language therapy  (Parent Ex. B at pp. 1, 7, 9; Tr. p. 60).  The CSE determined that the student's needs would not be met in a general education setting, a general education setting with related services, or in a general education setting with related services and special education teacher support services (SETSS) (Parent Ex. B at p. 15).  In addition, the CSE noted that a 12:1+1 student to staff class ratio in a community school would be too restrictive for the student (id.). 

At the time of the student's initial review in August 2003, he attended a general education, private parochial school and had never attended public school (Tr. pp. 60, 68; IHO Ex. I at p. 2).  Following the CSE's recommendations in August 2003, petitioner did not avail herself of the opportunity to observe the CSEís placement recommendation for 2003-04, and she kept her son in the general education, private parochial school (IHO Ex. I at p. 3).

In December 2003, petitioner requested a due process hearing seeking an order directing respondent to pay for the student's tuition at the Real Education Achievement (REACH) program at Xaverian High School for the 2004-05 school year (IHO Ex. I at pp. 2-3, 6).  The Commissioner of Education has approved REACH as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The impartial hearing occurred on January 22, 2004 (IHO Ex. I at p. 2).1  The impartial hearing officer dismissed petitioner's request as premature because no recommendations had been made for the student's 2004-05 placement (IHO Ex. I at p. 4).  The IEP had not yet been developed for 2004-05 and the annual review was to occur in August 2004 (IHO Ex. I at p. 3).  Petitioner contended at the impartial hearing that she could not wait for respondent's recommendations in August 2004 because the REACH program "may be full at that time" (id.).  According to testimony at the impartial hearing, the REACH program offered a "structured, small class (12:1+1) learning environment for students in their ninth, tenth, eleventh or twelfth year who are diploma bound.  The instructional components are coupled with the related services of counseling, speech and occupational therapy" (IHO Ex. I at p. 4).  Testimony reflected that REACH's representative interviewed the student as part of his admission process for the REACH program, had related service providers meet with the student to determine the studentís needs, and was in agreement with respondentís evaluations of the student  (id.). 

Documents submitted into evidence by petitioner in the instant appeal indicate that she began her son's admission process for the REACH program as early as November 2003 (see Parent Ex. M).  The student was considered to be an "appropriate candidate" for the REACH program in January 2004, and petitioner executed a contract with the REACH program to provide educational services to the student for the 2004-05 school year on February 10, 2004 (Parent Exs. L, N).  Petitioner made two installment payments in 2004, both of which were prior to petitionerís August 27, 2004 impartial hearing request (see Parent Ex. O; Tr. p. 4).

By letter dated August 27, 2004, petitioner advised respondent that because the CSE failed to place her son for the 2004-05 school year, she had enrolled him in the REACH program and requested that respondent provide transportation (Parent Exs. H, P).  By separate letter of the same date, petitioner requested an impartial hearing based upon respondentís alleged failure to offer an appropriate program/placement for her son for the 2004-05 school year and requested tuition payment for the REACH program (Aug. 27, 2004 Letter, attached to Petition; Parent Ex. J at pp. 2, 4). 

As a result of the August 27, 2004 impartial hearing request, an impartial hearing commenced on October 15, 2004 (see Oct. 15, 2004 Tr. p. 1, attached to Petition; Tr. p. 4; Parent Ex. J at p. 2).  The parties settled the matter at the impartial hearing and agreed to the terms as set forth in the impartial hearing officerís Statement of Agreement and Order, dated October 18, 2004 (see Parent Ex. J).  At the impartial hearing, petitioner's attorney stated on the record that the "REACH program will only accept [the student] if there is an order from a hearing officer stating that they should accept [the student] based on his Nickerson letter" (Oct. 15, 2004 Tr. pp. 3-5, attached to Petition).  Respondent issued, upon agreement with petitioner, a "Nickerson letter"2 that would allow the student to attend a state-approved private school at respondentís expense (id.).  Respondent brought the "Nickerson letter," dated October 15, 2004, to the impartial hearing and petitionerís attorney stated on the record, "It's my understanding that the district has issued now a P-1 or Nickerson letter, so that [the student] can go to the REACH program" (see Oct. 15, 2004 Tr. p. 4, attached to Petition; Parent Ex. I).  The impartial hearing officer asked petitioner's counsel, "And you were issued a Nickerson letter this morning?" (Oct. 15, 2004 Tr. p. 4, attached to Petition).  Petitionerís counsel replied, "Correct.  I have it in front of me" (id.).  At the conclusion of the impartial hearing, petitioner's attorney advised the impartial hearing officer that it was important for petitioner to receive the order as soon as possible so that the student could "begin in the REACH program," noting that although the student attended a "program" at Xaverian High School, he was "not in a funded program right now" (Oct. 15, 2004 Tr. pp. 11-13, attached to Petition).  Petitioner testified that her son could not take a seat in the REACH program "until the order is made" (Oct. 15, 2004 Tr. at p. 12, attached to Petition).  The order was sent to petitioner's attorney by letter dated October 18, 2004 (see Parent Ex. J). 

The instant appeal arises from petitioner's subsequent request for an impartial hearing dated March 7, 2005, which sought tuition reimbursement for the studentís attendance at the REACH program for the 2004-05 school year, and petitioner's amended request for an impartial hearing, dated May 2, 2005, which sought tuition reimbursement for the student's attendance at the LEGACY program for the 2004-05 school year (see Parent Exs. A, K).   The impartial hearing commenced on March 31, 2005, wherein respondent argued that petitioner's March 7, 2005 request for impartial hearing should be dismissed based upon the doctrine of res judicata, because the issue of the student's tuition at the REACH program for the 2004-05 school year had been determined at the October 15, 2004 impartial hearing (Tr. pp. 4-6, 8-9).  Petitioner's counsel indicated that the "Nickerson letter" provided as a result of the previous impartial hearing was inadequate because petitioner received it too late to place the student in the REACH program (see Tr. pp. 9-11).  At the March 31, 2005 impartial hearing, petitioner's attorney requested permission to amend petitioner's impartial hearing request to change the program for which petitioner sought tuition reimbursement (Tr. pp. 10-11).  By letter dated May 2, 2005, petitioner amended her previous request for an impartial hearing and requested tuition reimbursement for the LEGACY program (compare Parent Ex. A, with Parent Ex. K).  The Commissioner of Education has not approved LEGACY as a school with which school districts may contract to instruct students with disabilities. 

On May 10, 2005, the parties reconvened to continue the impartial hearing from March 2005.  Petitioner called the Director of the REACH program as a witness (Tr. pp. 26-55).  The Director testified that the student began the 2004-05 school year in the REACH program, but was moved from the REACH program into the LEGACY program at Xaverian High School in mid-September (id. at pp. 32-35, 49).   

The Director testified that the LEGACY program "is a special education program, small class, 15:1, that provides multi-module instruction for students with significant disabilities, with the mental capacity to master a high school curriculum and go on to college" (Tr. pp. 27-28).  She further testified that the LEGACY program served students "who are capable, with support and modification, of mastering the New York State standards for a Regents diploma and going on to a four-year college and a baccalaureate diploma" (id. at p. 28). 

Significantly, the Director testified that if she had received the "Nickerson letter" and the impartial hearing officer's decision in October, the student would have been returned to the REACH program (Tr. p 55).  The Director did not receive the "Nickerson letter" from petitioner until December 2004, and by that time, there were no seats available in the REACH program for the student so he remained in the LEGACY program (Tr. pp. 52-55).

Petitioner, the student's mother, also testified at the impartial hearing on May 10, 2005 (May 10, 2005 Tr. pp. 56-73).  She testified that on October 15, 2004óthe date of the previous impartial hearingóshe knew that her son had been moved from the REACH program to the LEGACY program at Xaverian High School (May 10, 2005 Tr. pp. 69-70).  She further testified that it was her intent at the October 15, 2004 impartial hearing to "get [her son] in the funded program" because she "didn't have the money to put him in the Legacy program" (May 10, 2005 Tr. p. 73).  Petitioner asserted that at the time of that impartial hearing, she sought a "Nickerson letter" and an order from an impartial hearing officer to place her son in the REACH program for 2004-05 (id.). 

Although respondent did not call any witnesses or present any evidence at the impartial hearing, the impartial hearing officer called respondent's representative, who appeared on behalf of respondent, to testify (May 10, 2005 Tr. pp. 73-85).  Respondent's representative testified that the "Nickerson letter," dated October 15, 2004, was presented at the October 15, 2004 impartial hearing to petitioner's attorney (May 10, 2005 Tr. pp. 22-23, 76-78, 81-82). 

 On June 20, 2005 the impartial hearing officer rendered the decision that is the subject of this appeal (IHO Decision, p. 17).  Based upon the evidence and testimony presented, the impartial hearing officer determined the following:  1) respondent failed to provide the student with a free appropriate public education (FAPE) for the 2004-05 school year (IHO Decision, pp. 8-9); 2) the "principles of res judicata and collateral estoppel apply to administrative proceedings under the [Individuals with Disabilities Education Act]" (IDEA) (IHO Decision, p. 9); and, 3) the issue to be determined was "whether the Department of Education met its responsibility by agreeing to provide the student a P-1 authorization at the impartial hearing on October 15, 2004, which the parent intended to use to pay for a State approved non-public school placement at the REACH program for the 2004/05 school year" (id.). 

The impartial hearing officer concluded that he had "authority to review solely whether the March, 2005, impartial hearing request as amended by the May, 2005 request raises issues that were not or could not have been raised at the first impartial hearing and whether the parent had a full and fair opportunity to litigate in the prior proceeding" (IHO Decision, p. 10). 

The impartial hearing officer held that petitioner's request for funding by respondent for a private school placement was "clearly raised at the initial request for impartial hearing in August, 2004" (IHO Decision, p. 10), and further, that "[t]his is precisely the issue raised in the parent's subsequent request for impartial hearing in March, 2005" (id.).  Moreover, the impartial hearing officer held that the issues of appropriateness, placement and funding for the LEGACY program, as set forth in the amended request for impartial hearing dated May, 2005, "could (and should) have been raised at the prior proceeding in October 2004" because petitioner had full knowledge of all of these issues prior to the October 2004 impartial hearing (IHO Decision, pp. 10-13).  Moreover, the impartial hearing officer found that petitioner had a "full and fair opportunity to litigate the issue of funding for the REACH program" at the October 2004 impartial hearing (IHO Decision, p. 11).    

On appeal, petitioner contends that the impartial hearing officer erred in dismissing petitioner's request for tuition reimbursement based upon the doctrine of res judicata.  Petitioner alleges that the impartial hearing officer incorrectly concluded that the parent could and should have raised the issues of appropriateness, placement and tuition reimbursement for the LEGACY program at the October, 2004 impartial hearing, and, that the parent had a full and fair opportunity to litigate the issue of funding for the REACH program at the October 2004 impartial hearing.  Petitioner also asserts that the Statement of Agreement and Order should be vacated due to bilateral mistake.  

Respondent contends that the impartial hearing officer's decision should be affirmed because petitioner's 2005 requests for impartial hearings were attempts to relitigate a previously resolved matter, that petitioner failed to exhaust her administrative remedies, and that no bilateral mistake existed upon which to vacate the Statement of Agreement and Order.  

The doctrine of res judicata "precludes parties from litigating issues 'that were or could have been raised' in a prior proceeding" (Perez v. Danbury Hosp., 347 F.3d 419 [2d Cir. 2003]; Application of a Child with a Disability, Appeal No. 04-061, fn. 1).  "[T]he principle of res judicata [is] that 'once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" (Aard-Vark Agency, Ltd. v. Prager, 8 A.D.3d 508, 509 [3rd Depít, 2004][citing Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375, 380 [1999])(internal citations omitted)).

A thorough review of the record supports the impartial hearing officerís determination dismissing petitioner's 2005 impartial hearing request based upon the principles of res judicata and collateral estoppel because the 2005 request was an attempt to relitigate the issue of payment for educational services for the 2004-05 school year, which had been determined at the October 15, 2004 impartial hearing.  The evidence supports the impartial hearing officerís conclusion that petitioner knew of the student's transfer to the LEGACY program at the time of the October 2004 impartial hearing, as well as the payment of tuition issues regarding the non-approved LEGACY program.  These issues could have, and should have, been raised at the October 2004 impartial hearing, and petitioner failed to do so.  Moreover, the record does not explain why petitioner failed to implement the "Nickerson letter," dated October 15, 2004, and the Statement of Agreement and Order, dated October 18, 2004, in a timely manner.  Although petitioner claims to have not received the "Nickerson letter" until December 2004, I do not find persuasive evidence in the record to support this claim and I see no reason to disagree with the impartial hearing officerís finding.     

Petitioner, who was represented by counsel at the October 2004 impartial hearing, knowingly entered into a settlement agreement with respondent to resolve the placement and funding issues for the student's 2004-05 school year in October 2004.  Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside (Application of a Child with a Disability, Appeal No. 03-044, Application of a Child with a Disability, Appeal No. 03-071). That is equally true with respect to a stipulation in an administrative proceeding such as this (Application of a Child with a Disability, Appeal No. 03-044, Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Disability, Appeal No. 97-46; see also Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984]).  It has been noted that an appeal to a State Review Officer may not be used as a way to re-litigate a matter that the parties have previously resolved or to consider in the first instance additional claims that may arise as a settlement agreement is implemented (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 03-071).  Similarly, a subsequent impartial hearing may not be used as a way to re-litigate matters previously resolved at a prior impartial hearing (Application of a Child with a Disability, Appeal No. 04-061).    

  Petitioner's claim for tuition reimbursement for the LEGACY program for the 2004-05 school year must be dismissed based upon res judicata principles.

I have considered petitioner's remaining contentions and I find them to be without merit. 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

November  1, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  The impartial hearing officer's January 27, 2004 decision referenced a previous impartial hearing that occurred in December 2002, in which petitioner requested "the issuance of a P-1 letter authorizing [petitioner] to enroll [the student] in a State-approved, full time special education, private school as well as funding for a private neuropsychological evaluation" (IHO Ex. I at p. 2).  Both requests were denied (id.).  Respondent subsequently performed a neuropsychological evaluation of the student and reported the findings at the CSE's review in August 2003 (id.).

2  A "Nickerson Letter" is written authorization from the Department of Education (DOE)  to the parent of a child with a disability to place the child, at respondent's expense, in a private school which has been approved as a school for children with disabilities by the New York State Education Department (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a "Nickerson Letter" is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).