06-027

             Petitioner appeals from a decision of an impartial hearing officer, which determined that the educational program respondent's Committee on Special Education (CSE) had recommended and provided for her son for the 2005-06 school year was appropriate.  The appeal must be dismissed.

            At the time of the commencement of the impartial hearing on January 25, 2006, the student was 18 years old and attending South High School (IHO Decision, p. 5).  The student's eligibility for special education programs and services as a student with multiple disabilities is not in dispute on appeal  (8 NYCRR 200.1[zz][8]).

            Prior to the instant case, when the student was 16 years old, he was involved in an incident with two other students in the locker room during gym class on or about March 4, 2004 that resulted in the student sustaining injury (Tr. pp. 18-19, 29-30).  The record reveals that respondent conducted an investigation following the incident and concluded that it was an isolated incident involving "horseplay" among classmates (Tr. pp. 18-19, 170, 255-57; Parent Ex. JJJJ).  Petitioner disputes respondent's characterization of the incident as "horseplay" and contends that the student was assaulted (Tr. pp. 29-30, 220, 283-84; Parent Ex. EE).  Petitioner filed a police report about the incident and removed the student from school in March 2004 (Parent Ex. KKKK; Parent Ex. LLLL; Parent Ex. MMMM).

            The student returned to school on or about May 17, 2004 (Tr. p. 222).  Thereafter, petitioner and respondent disagreed about the level of supervision to provide to the student (see Tr. pp. 33-34, 222-23).  Respondent stated that a full-time school aide was previously assigned only to assist the student academically and recommended decreasing the amount of aide coverage in the student's individualized education program (IEP), while petitioner maintained that full-time aide coverage was needed for the student's safety (see Tr. pp. 33-34, 222-23).  Petitioner also asked respondent to provide the student with a male aide for assistance in gym class and the lavatory (Tr. p. 227; Parent Ex.  HH).

            Petitioner requested an impartial hearing on or about August 2, 2004 (Tr. p. 223; Parent Ex. TTTT at pp. 1, 4, 6, 10, 17-28).  Rather than going forward with the hearing, respondent and petitioner entered into a settlement agreement on March 4, 2005 "to fully and finally settle all issues and claims which have been asserted in any outstanding hearing request on behalf of [student] and all issues and claims which could have been asserted through the date of this agreement." (Parent Ex. DDDDD at p. 1).  Paragraph 12 of the settlement agreement addressed supervision of the student in the lavatory. It provided: "This agreement is intended to supplement the October 21, 2004 IEP which will otherwise remain in effect with the caveat that section III (D)(4)(comments) will be amended to include supervision for the lavatory." (Parent Ex. DDDDD at p. 2).

            For the 2005-06 school year, IEPs dated August 25, 2005, October 17, 2005 and November 7, 2005 were developed for the student, as set forth in more detail herein (Parent Exs. MMM, OOO and FFFF).

            Petitioner filed due process complaints, dated December 5, 2005 and December 14, 2005, requesting an impartial hearing due to respondent's alleged failure to comply with paragraph 12 of the parties' settlement agreement dated March 4, 2005 (Parent Ex. QQQQQ at p. 2; Parent Ex. ZZZZZ at p. 2).  Petitioner also alleged that respondent failed to implement the student's IEP for the 2005-06 school year (Parent Ex. QQQQQ at p. 2; Parent Ex. ZZZZZ at p. 2).  Petitioner requested, in addition to other relief, that respondent be directed to comply with the parties' settlement agreement and the IEP for the 2005-06 school year as they related to supervision (Parent Ex. QQQQQ at p. 2; Parent Ex. ZZZZZ at p. 2).

            Pursuant to interim decisions dated by cover letter December 22, 2005 and January 4, 2006, which have not been challenged on appeal, the impartial hearing officer granted respondent's motion to consolidate the December 5, 2005 due process complaint with the December 15, 2005 due process complaint (IHO Ex. 3 at pp. 3-4; IHO Ex. 4 at p. 3). The impartial hearing officer found that petitioner raised identical claims in both complaints about the adequacy of the student's supervision and determined that consolidation would avoid duplicative hearings.           

            The impartial hearing that is the subject of this appeal occurred on January 25 and 26, 2006 (Tr. pp. 1, 123).  The primary issue in dispute as described by  impartial hearing officer was whether respondent provided adequate supervision to the student during the 2005-06 school year to allow him to access a free appropriate public education (FAPE) (IHO Decision, p. 6).  Both parties presented documentary and testimonial evidence.

            Petitioner claimed at the impartial hearing that during the 2005-06 school year, respondent failed to supervise the student adequately as evidenced by the occasions where respondent left the student unattended.  She testified that the student was left unsupervised after volleyball practice on September 6, 2005, at the end of the school day on September 14, 2005, and during bowling on December 2, 2005 (Tr. pp. 237-40, 242-43).  Petitioner testified that there was no adult aide supervising the student at his internship on January 24, 2006 (Tr. p. 244).  Petitioner further claimed that an aide failed to meet the student upon his arrival to school every morning from September 2005 to December 2005 (Tr. pp. 269-72).  Petitioner submitted into evidence a document purportedly drafted by the student that listed alleged lapses in aide coverage (Parent Ex. IIIII).

            Petitioner also claimed that on September 10, 2004, respondent intentionally placed the student in the lunchroom at the same time as one of the boys involved in the March 2004 incident to retaliate against petitioner for raising concerns about the student's special education program (see Tr. pp. 36-38).

            Petitioner argued at the impartial hearing that respondent did not implement the student's IEP for the 2005-06 school year by virtue of its failure to provide continuous supervision of the student (see Tr. pp. 40-41; Parent Ex. TTTTTT).  Petitioner claimed that respondent breached the March 4, 2005 settlement agreement by not providing assistance in the lavatory and by refusing to provide a male aide (Tr. pp. 227-28).  Petitioner further alleged that respondent violated her procedural rights under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)¹ by failing to provide her with prior written notice and denying her the opportunity to review the student's educational records (Tr. pp. 65-68, 211-17, 226, 231).

            At the impartial hearing, respondent presented testimony from school district personnel who described respondent's plan for providing supervision during the school day, including aide coverage at the student's internship and participation in a BOCES program.  Respondent also submitted a document entitled "Aide Schedule" which outlined respondent's plan for supervision and identified the aide responsible for supervising the student during various periods of the school day (Dist. Ex. 24).

            Specifically, respondent's coordinator of student services testified about respondent's plan for providing aide coverage to the student (Tr. pp. 53-54).  She testified that an aide met the student when he arrived at school, accompanied the student to his locker, and then escorted the student to gym or speech depending on his schedule (id.).  If the student had gym, the aide took the student to a private room where he could change (see Tr. pp. 80-81).  After gym or speech, the aide escorted the student to reading, then to life studies class, and then assisted the student with boarding a bus that transported him to his internship along with a classmate who was confined to a wheelchair (Tr. p. 54).  An aide monitored the student at his internship and helped him onto the bus that brought him to his BOCES program (id.).  At the BOCES program, an aide supervised the student and then rode the bus with the student back to the high school where the student boarded another bus to return home or went into activities where he had an aide as well (id.).  The coordinator of student services further testified that respondent provided supervision for the student during extracurricular activities (Tr. p. 55).

            The coordinator of student services testified that it was respondent's practice to escort the student to a locked, faculty lavatory when the student needed to use the bathroom (Tr. p. 52).  No other students were allowed in the faculty lavatory and only the faculty had access via a key (see Tr. pp. 52, 83-84).  The student's case manager, a special education teacher for respondent, testified that the student used the employer's private lavatory when he was at his internship and his aide waited outside the men's restroom when the student needed to use the lavatory during his participation in the BOCES program (Tr. p. 84).  The student's IEP dated November 7, 2005 did not expressly provide for supervision in the lavatory (see Dist. Ex. 8 at p. 5; Parent Ex. FFFF at p. 5; Tr. p. 52). 

            With reference to the September 2004 incident where the student was in the cafeteria at the same time as one of the boys involved in the March 2004 incident, the coordinator of student services testified that it was an "unfortunate", "freak" incident that occurred on the third day of school before the student began his internship (Tr. pp. 59-62).  She testified that respondent had checked the other boys' schedules and they were not scheduled to be in the lunchroom at that time (Tr. pp. 59-60).  She further testified that respondent did not remove the student from the cafeteria because he was enjoying himself and was under adult supervision as the student's aide sat next to him and the assistant principal was also present in the cafeteria (see Tr. p. 69).

            At the impartial hearing, respondent conceded that there were occasional lapses in aide coverage, but argued that such lapses were minimal and did not affect the student's safety or access to a FAPE (see Tr. pp. 56, 58, 97-98).  Respondent's witnesses testified that these occasional lapses in aide coverage occurred because an aide was ill or because of miscommunication (Tr. pp. 58, 83).  They testified that respondent had developed procedures to alleviate similar situations in the future (id.).  All six witnesses for respondent testified that they did not believe that the student was in any danger for his safety (Tr. pp. 56, 75, 84-85, 95-97, 105-106, 112).

            By decision dated February 21, 2006, the impartial hearing officer determined that respondent offered and provided the student a FAPE for the 2005-06 school year (IHO Decision, p. 11).²  He found that the lapses in aide coverage were occasional and unintentional, and that there was no support for petitioner's claim that respondent failed to provide aide coverage on any morning from September 2005 to December 2005 (id.).  He also found no support for petitioner's claim that respondent intentionally placed the student in the same lunchroom as one of the boys involved in the March 2004 incident (id.).  The impartial hearing officer determined that there was no proof that the student was not progressing academically or not receiving educational benefit from his program during the 2005-06 school year (id.).  The impartial hearing officer found no evidence that the student's safety was in jeopardy (id.).  Based on these findings, the impartial hearing officer dismissed petitioner's due process complaints dated December 5, 2005 and December 14, 2005 (id.).  The impartial hearing officer also denied petitioner's request for reimbursement of expenses, request for money damages, and request for an order "freezing state and federal aide to the school district" (IHO Decision, pp. 11-12).

            On appeal, petitioner contends that the impartial hearing officer erred in determining that respondent offered and provided an appropriate educational program to the student for the 2005-06 school year.  Petitioner challenges the impartial hearing officer's findings, arguing that the record clearly supports her claims that respondent did not provide adequate supervision, failed to adhere to the parties' settlement agreement, and failed to implement the student's IEP for the 2005-06 school year. 

            Respondent contends that the impartial hearing officer's decision should be upheld in its entirety.  Respondent asserts, among other arguments, that petitioner has not met her burden of proving that the "aide plan" is inappropriate or that there has been a denial of FAPE for the 2005-06 school year.³

            Before I address petitioner's appeal, I must determine which IEP is the subject of this appeal, as petitioner does not specifically refer to the IEP that she is challenging and the impartial hearing officer's decision does not clarify which IEP is in dispute. 

            I have reviewed the record and I note that petitioner introduced into evidence an IEP dated August 25, 2005 for the 2005-06 school year (see Parent Ex. MMM), an IEP dated October 17, 2005 for the 2005-06 school year (see Parent Ex. OOO), and an IEP dated November 7, 2005 for the 2005-06 school year (see Parent Ex. FFFF).⁴  All three of these IEPs discuss supervision in section III (D)(4)(comments), and are substantially similar with regard to their requirements for adult supervision, with the exception that the IEP dated November 7, 2005 added the provision "[c]lose monitoring with adult supervision is required." (see Parent Ex. FFFF, at p. 5).  Since it is well settled that an amended IEP supercedes a previous IEP (see Application of the Bd. of Educ., Appeal No. 05-063; Application of a Child with a Disability, Appeal No. 05-021), I find that the November 7, 2005 IEP superceded all previous IEPs and was the IEP in effect at the time the hearing requests were made and is, therefore, the IEP which is the subject of this appeal.

            I will now turn to petitioner's contention that the impartial hearing officer erred in finding that respondent offered a FAPE to the student, notwithstanding the alleged lapses in aide coverage.  A purpose behind IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).⁵  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

           A FAPE is offered to a student, when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 2000][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132 ).

         The record does not demonstrate that the student requires adult supervision in the lavatory in order to benefit from his special education.  I note that supervision in the lavatory was part of a settlement agreement that by its terms amended the student's October 21, 2004 IEP  (Tr. p. 63; Parent Ex. DDDDD).  A child's IEP must, at a minimum, be reviewed annually (34 C.F.R. § 300.343[c][1]; 8 NYCRR 200.4[f]).  The record indicates that when the CSE convened to develop the student's IEP for the 2005-06 school year, supervision in the lavatory was not recommended (Tr. p. 64).  The November 7, 2005 IEP does not expressly require respondent to provide assistance in the lavatory and does not expressly require a full-time aid (Tr. p. 52; see Dist. Ex. 8 at p. 5; Parent Ex. FFFF at p. 5).

         The IEP dated November 7, 2005 included a provision for "[c]lose monitoring with adult supervision" (see Dist. Ex. 8 at p. 5; Parent Ex. FFFF at p. 5).  The record demonstrates that respondent provided adult monitoring throughout the school day, including aide coverage at the student's internship and participation in a BOCES program (Tr. pp. 21-23, 53-54, 80-83).  Respondent's witnesses testified that they believed it appropriate to reduce the level of adult monitoring provided to the student to assist the student's transition out of high school (Tr. pp. 53, 76, 85-86, 97).  Although the impartial hearing officer found that there were some occasional lapses in aide coverage, the record does not demonstrate that these lapses denied the student access to a FAPE.  I concur with the impartial hearing officer in this determination and I find that the IEP was reasonably calculated to enable the child to receive educational benefit and that the student received appropriate monitoring and supervision consistent with his IEP.

         I also find it relevant in this case that the impartial hearing officer found that the student's safety was not in jeopardy (IHO Decision, p. 11). It is appropriate for safety concerns to be considered in the development and review of an IEP (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 94 [2d Cir. 2005]).  The record reveals that petitioner had concerns about her son's safety stemming from an incident that occurred in March 2004, however respondent's witnesses all testified that they were not concerned for the student's safety (Tr. pp. 56, 75, 84-85, 95-97, 105-06, 112, 222-23; see also Parent Ex. JJJJ at p. 1).  Respondent's witnesses described the student as a socially appropriate student, capable of expressing emotions and any perceived concerns about his safety to school district personnel (Tr. pp. 47-48, 72, 126). Based on this evidence, I find that petitioner did not meet her burden of proving that the program recommended by respondent was inappropriate or that the student's disability required continuous supervision in order for the student to benefit educationally.

         I also find that the record does not support petitioner's claim that alleged procedural inadequacies denied the student a FAPE for the 2005-06 school year (see Tr. pp. 65-68, 211-17, 226, 231).  The record indicates that petitioner was an active participant in the CSE process and that respondent complied with regulatory prior notice requirements (Tr. pp. 16, 65-68).  Even if procedural inadequacies were present, the record does not establish that there was a loss of educational opportunity for the student, that the parent's opportunity to participate in the IEP formulation process was seriously infringed upon, or that the development of the IEP was compromised in a way that deprived the student of educational benefits under the IEP.

Based on the above considerations, I concur with the impartial hearing officer's finding that respondent offered and provided a FAPE to the student during the 2005-06 school year.

            On appeal, petitioner also asserts that the impartial hearing officer committed various procedural errors that denied her due process of law.  Petitioner asserts that the impartial hearing officer erred by not allowing her to admit certain exhibits into evidence. A hearing officer has the power and discretion to restrict the record to evidence that is relevant to the issues that must be decided and may exclude irrelevant or unduly repetitious evidence (see Application of the Bd. of Educ., Appeal 02-076; Application of a Child with a Disability, Appeal 01-002).  Here, the record reveals that the impartial hearing officer allowed petitioner to admit more than 125 exhibits into evidence despite respondent's objection to many of these exhibits as irrelevant (see Tr. pp. 150-206).  On appeal, petitioner challenges the impartial hearing officer's decision to not admit five exhibits into evidence.  Three of the challenged exhibits are the student's IEPs from middle school that the impartial hearing officer determined were irrelevant (Tr. pp. 132-33).  Petitioner contends on appeal that the student's middle school IEPs are relevant because they demonstrate that the student did not require supervision in middle school, however, I note that petitioner testified that adult supervision was not recommended until the student entered high school and it was at that time that the student's IEP was amended to include adult monitoring (Tr. pp. 218-19).  Petitioner presents no argument on appeal as to why the other two exhibits should have been admitted. The record establishes that the impartial hearing officer found that these two exhibits were irrelevant after considering petitioner's arguments (Tr. pp. 171, 186-87).  An impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).  Under these circumstances, I find that the hearing officer did not err in refusing to admit the five exhibits.

            Petitioner further contends that the impartial hearing officer erred in prohibiting petitioner from testifying with regard to an August 11, 2004 telephone conversation.  The record reveals that the impartial hearing officer determined that such communication was an inadmissible settlement discussion (Tr. pp. 224-25).  Under the circumstances of the instant case, I find that the hearing officer did not abuse his discretion in refusing to allow petitioner to testify about settlement discussions that occurred in August 2004 (see 8 NYCRR 200.5[j][3][xii][c]).

            Petitioner claims that the impartial hearing officer erred by overruling her objection to the timing of respondent's  disclosure of its witness list, and stating that petitioner should have made a demand for respondent's witness list (see Tr. pp. 13-14).  The Regulations of the Commissioner of Education provide that a purpose of the prehearing conference is for the parties to identify witnesses expected to provide testimony at the hearing (8 NYCRR 200.5[j][3][xi][d]).  In addition, federal and state regulations provide that each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed at least five business days before the hearing (34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[j][3][xii]; Application of a Child with a Disability, Appeal No. 03-087).  Here, the record reveals that the parties had a prehearing conference to discuss respondent's motion to dismiss petitioner's complaints (IHO Ex. 1). After denying respondent's motion to dismiss, the impartial hearing officer attempted to schedule a subsequent prehearing conference with the parties to discuss hearing related matters, however, the record indicates that petitioner was unwilling to participate in a second prehearing conference (see IHO Ex. 4; Parent Ex. LLLLLL; Parent Ex. QQQQQQ).  

           At the impartial hearing, petitioner acknowledged that a purpose of the prehearing conference was for the parties to discuss proposed witnesses (Tr. p. 14).  Petitioner objected to her notification by respondent of its intention to call witnesses only one day prior to the hearing, however, petitioner did not request that the impartial hearing officer exclude their testimony, even when the impartial hearing officer expressly asked her if she wanted to exclude respondent's witnesses (Tr. pp. 13-14, 125).  Moreover, the record indicates that petitioner appeared familiar with the witnesses; she referred to respondent's coordinator of student services by her first name (Tr. p. 68).  Petitioner appeared to understand the substance of respondent's witnesses' testimony, which consisted predominantly of testimony about respondent's plan for providing supervision and the alleged lapses in aide coverage.  Petitioner cross-examined three of respondent's six witnesses (Tr. pp. 63-71, 98-100, 114-18) and elected to recross the sixth witnesses (Tr. pp 118-19).  Petitioner did not recall any of respondent's witnesses.  The record indicates that the impartial hearing officer afforded petitioner an opportunity to question each of respondent's witnesses, and did not limit petitioner's ability to recall any witnesses.  Although I do not condone respondent's failure to disclose its witness list in a timely manner, I find that the record established that petitioner did not suffer prejudice by the late disclosure. 

            Finally, I concur with the impartial hearing officer's findings and decisions with respect to damages and reimbursement for expenses allegedly paid by petitioner. It is well settled that monetary damages are not available under the IDEA (Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 786 n.14 [2d Cir. 2002]; Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002]; Application of a Child with a Disability, Appeal No. 05-039). Although reimbursement is distinguished from monetary damages, (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71 [1985]) here the record indicates that petitioner requests reimbursement for expenses related to the 2004-05 school year that were subject to a prior impartial hearing where the parties reached a settlement (see Tr. p. 9). A party is precluded by principles of collateral estoppel [issue preclusion] and/or res judicata [claim preclusion] from relitigating the same issue or claim that already was, or could have been, raised in a prior impartial hearing (see Application of a Child with a Disability, Appeal No. 04-061; see also Perry v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003] [explaining that the doctrine of res judicata "precludes parties from litigating issues that were or could have been raised in a prior proceeding"]).  For these reasons, there is no need to modify the determinations of the impartial hearing officer that denied petitioner's request for reimbursement of expenses, request for money damages, and request for an order "freezing state and federal aide to the school district."

            I have considered the parties' remaining contentions and find them to be without merit.⁶

THE APPEAL IS DISMISSED.