The State Education Department
State Review Officer

No. 05-080



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




Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel 


            Petitioner appeals from the decision of an impartial hearing officer which dismissed his complaint based upon the previous adjudication of the issue. The appeal must be dismissed.

            At the time of the hearing, the student was 16 years old and classified as a student with a speech or language impairment (IHO Ex. I at p. 1). The student's eligibility for special education programs and classification is not in dispute (see 8 NYCRR 200.1[zz][11]). The impartial hearing officer rendered his decision on July 7, 2005 (IHO Decision, p. 4).

            Petitioner's son's individualized education program (IEP) for the 2004-05 school year recommended that he receive special education teacher support services (SETSS) five times a week (Tr. pp. 5-6; IHO Ex. I). However, respondent acknowledged, through a "Nickerson Letter,"1 dated October 28, 2004, that the student had been "waiting for Resource Room placement for more than sixty days" (Dist. Ex. 2). The "Nickerson Letter" advised petitioner that until the placement was available, he could "obtain private instruction in place of Resource Room services at Board of Education expense" (id.). The letter noted that any private service provider "must be licensed and/or certified by New York State" (id.). The private service provider was also required to send back a form that advised of the state certification requirement and required that the provider select the specific type of certification he had obtained (Dist. Ex. 5).

            Petitioner reportedly exhausted the list of providers given by respondent and hired a private provider for his son's SETSS (Dist. Ex. 1). Petitioner's son had received SETSS from this private provider in prior years and respondent had previously reimbursed petitioner (Tr. p. 9; Dist. Exs. 1, 6). Respondent has learned that the private provider is not in fact a New York State certified teacher, as was referenced on at least one document sent to respondent (Tr. p. 9; Dist. Exs. 5, 6). In light of this, respondent refused reimbursement to the private provider (Tr. p. 9; Dist. Ex. 6).

            Petitioner requested a due process hearing on January 25, 2005 for reimbursement for the costs he expended for SETSS (Dist. Ex. 1). An impartial hearing (Hearing 1) was held on February 16, 2005 (Dist. Ex. 6). Petitioner argued that respondent's prior payments for the private provider in past years mandated future payment (Dist. Exs. 1, 6). A decision was rendered on February 22, 2005 denying reimbursement due to the lack of certification of the private provider (Dist. Ex. 6). The Hearing 1 impartial hearing officer also analyzed the case under the Burlington/Carter criteria for tuition reimbursement (id.; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). Under the Burlington/Carter analysis, a board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate,2 the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington, 471 U.S. at 370; Carter, 510 U.S. at 15-16; Cerra v. Pawling Cent. Sch. Dist., F.3d , 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000]. 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 Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 (Burlington, at 370). "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 developed a proper IEP" (Burlington, at 370-71). A parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

            The impartial hearing officer in Hearing 1 held that the parent's services were not appropriate and also that equitable considerations did not support the parent's claim (Dist. Ex. 6). The impartial hearing officer's decision in Hearing 1 noted the deadline and procedure to file an appeal of his decision (Dist. Ex. 6). Petitioner did not appeal this decision (Tr. p. 12). Both federal and state regulations provide that an impartial hearing officer's decision is final unless appealed to the State Review Officer (20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]).

            Petitioner requested a second impartial hearing on May 27, 2005, without reference to the prior hearing (Parent Ex. A). The impartial hearing (Hearing 2) request sought reimbursement for SETSS provided by the private provider hired by petitioner from September 2004 through May 2005 in the amount of $5,986 (id.). Hearing 2 was held on June 16, 2005. The private provider testified that he is not a certified teacher and that his credentials have not changed since the February 2005 hearing (Tr. pp. 13-14, 25). The private provider indicated at Hearing 2 that he had not filled out the district form indicating that he was certified, and petitioner acknowledged filling out the form on behalf of the private provider (Tr. pp. 24-26). Petitioner indicated that it was his understanding that respondent had certified the ability of the private provider by reimbursing his services in prior years (Tr. pp. 25-26). In his July 7, 2005 decision, the Hearing 2 impartial hearing officer denied petitioner's claim based upon "a previous adjudication of the issue" (IHO Decision, p. 4).

            On appeal, petitioner requests that the decision of the Hearing 2 impartial hearing officer be reversed and that petitioner be reimbursed for his expenditures in obtaining SETSS services and be granted "funding for private school."

            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, 426 [2d Cir. 2003]; Application of a Child with a Disability, Appeal No. 05-059; 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'. . . . A dismissal 'with prejudice' generally signifies that the court intended to dismiss the action 'on the merits,' that is, to bring the action to a final conclusion against the plaintiff'" (Aard-Vark Agency, Ltd. v. Prager, 8 A.D.3d 508, 509 [2d Dep’t 2004] [citing Yonkers Contr. Co., Inc. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375, 380 [1999]] (internal citations omitted)).

            Reimbursement for the SETSS services of the same private service provider for the same school year was the issue at both hearings (Dist. Exs. 1, 6, Parent Exs. A, B, E). In the instant case, the Hearing 2 impartial hearing officer properly held that the complaint should be dismissed due to the "previous adjudication of the issue" (IHO Decision, p. 4). Upon the facts before me, I find that the Hearing 1 February 22, 2005 decision is the final determination of the issue from which petitioner seeks review, and that such decision on this issue became final in the absence of a timely appeal.4

            In addition, the petition asserts that a triennial evaluation of the student is needed5 and requests private school funding. These issues are beyond the scope of my review because they were not raised below (Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024).

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




Albany, New York


October  20, 2005


1 A "Nickerson Letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (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).

2 The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]). 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, 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(8).

3 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.

4 Respondent's answer had eight exhibits annexed, most of which were duplicative of documents in the record. However, Exhibits A, D, and a portion of Exhibit E, annexed to respondent's answer, were not presented at the hearing. Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Child with a Disability, Appeal No. 05-068; Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068). The documents offered on appeal were not made available to the impartial hearing officer prior to his decision and they are not necessary for my review, therefore, I will not accept them (Application of a Child with a Disability, Appeal No. 05-068; Application of a Child with a Disability, Appeal No. 05-001; Application of the Bd. of Educ., Appeal No. 04-068).

5 It is not clear from the record whether a triennial evaluation of the student is due or whether one has been conducted. Respondent should review the student’s record to determine whether a triennial evaluation is required at this time. If one is required, respondent must take steps to promptly complete the triennial evaluation.