06-133

Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer insofar as it denied "without prejudice" respondent's request for funding of her son's tuition costs at Winston Preparatory School (Winston) for the 2006-07 school year.  Respondent cross-appeals from the impartial hearing officer's determination that respondent failed to demonstrate that Winston is an appropriate placement for the student.  The appeal must be sustained.  The cross-appeal must be dismissed.

When the impartial hearing was held on October 4, 2006, the student was 11 years old and in the sixth grade at Winston (Tr. pp. 1, 7, 13-14), where he was unilaterally placed by respondent in September 2006 (Tr. p. 14; Parent Ex. 5).  Winston is described in the record as a special education school for children with learning disabilities (Tr. pp. 35, 36).  The Commissioner of Education has not approved Winston as a school with which school districts may contract to instruct students with disabilities (Tr. p. 39; see 8 NYCRR 200.7, 200.1[d]).

The student exhibits difficulties with oral language and auditory comprehension (Parent Ex. 3 at p. 4).  A September 2005 psychoeducational evaluation report described the student as a friendly, shy youngster with problematic work habits whose lack of confidence and feelings of inadequacy affect his academic functioning (id.).  Administration of the Wechsler Abbreviated Scale of Intelligence in September 2005 when the student was 10 years old yielded a verbal IQ score of 82 (12th percentile), a performance IQ score of 86 (18th percentile), and a full scale IQ score of 83, which placed the student's overall intellectual functioning in the low average range (id. at pp. 1, 2).  The student's classification and eligibility for special education programs and services as a student with a speech-language impairment are not in dispute in this appeal (Parent Ex. 1 at p. 1; see 8 NYCRR 200.1[zz][11]). 

For the 2005-06 school year, the student completed fifth grade at petitioner's public schools pursuant to his individualized education program (IEP) dated October 7, 2005 (Tr. pp. 10-11; Parent Ex. 1).  He attended a special class with a 12:1+1 staffing ratio and received speech-language therapy, counseling and adaptive physical education (Parent Ex. 1 at pp. 1, 5, 13).

In June 2006, the student interviewed at Winston (Tr. p. 24).  By letter dated August 17, 2006, respondent notified petitioner through her attorney that she would be unilaterally placing her son at Winston for the 2006-07 school year and requested that petitioner fund the student's tuition costs and provide transportation to and from Winston (Parent Ex. 5).  Respondent filed a due process complaint notice on or about August 18, 2006 (see Pet. ¶ 3; Answer ¶ 1).¹  In September 2006, respondent enrolled the student at Winston for the 2006-07 school year (Tr. pp. 14, 34; Parent Ex. 4).  

At the impartial hearing on October 4, 2006, petitioner conceded that it did not offer respondent's son a free appropriate public education (FAPE) for the 2006-07 school year (Tr. p. 4).²  Petitioner also asserted that Winston is not an appropriate placement for the student (Tr. p. 54).  Respondent argued that Winston is an appropriate placement and requested that petitioner fund her son's tuition costs at Winston for the 2006-07 school year.  Respondent testified that her son is doing "great" at Winston, that he no longer cries before going to school, and that he no longer has trouble with homework (Tr. pp. 14-15).  The Director of Operations and Educational Research for Winston testified that the student attends class with twelve other students and receives one-to-one instruction in reading for forty minutes each day as part of the school's Focus program (Tr. pp. 37-39).  She also testified that one of the student's teachers told her that the student recently had begun participating in class but still requires a lot of repetition to understand the information presented to him (Tr. pp. 35-36, 38).

By decision dated October 23, 2006, the impartial hearing officer found that petitioner conceded that it did not offer respondent's son a FAPE for the 2006-07 school year, that respondent did not sustain her burden of proving that Winston is appropriate for the student, and that respondent cooperated with petitioner (IHO Decision at pp. 6, 8).  The impartial hearing officer noted that respondent did not present evidence showing the student's progress at Winston and found it significant that the student did not receive speech-language therapy at Winston when other evidence presented at the impartial hearing indicated that the student needs speech-language therapy (id. at pp. 7-8).  The impartial hearing officer denied respondent's request for tuition payments to Winston "without prejudice" (id. at pp. 8-9).  

On appeal, petitioner asserts that the impartial hearing officer adjudicated respondent's claim for tuition funding "on the merits" and thereby erred by ordering the dismissal "without prejudice."  Petitioner asserts that the dismissal without prejudice contravenes the finality provisions set forth in the Individuals with Disabilities Education Act (IDEA) and impermissibly permits respondent to refile her claim and relitigate issues that have already been decided on the merits.³  Petitioner requests that the impartial hearing officer's decision be vacated insofar as it ordered the dismissal without prejudice and requests that a State Review Officer issue a decision ordering the dismissal with prejudice. 

Answering petitioner's assertions, respondent contends that the impartial hearing officer's decision by its own terms is a non-final order that cannot be appealed to the State Review Officer and the impartial hearing officer's decision should not be given res judicata effect.  Respondent also cross-appeals from that portion of the impartial hearing officer's decision that denied respondent's claim for tuition payments to Winston for the 2006-07 school year and argues on appeal that she presented sufficient evidence at the impartial hearing to demonstrate that Winston is an appropriate placement for the student.  Respondent requests an order directing petitioner to pay the student's tuition at Winston for the 2006-07 school year, or an order remanding the issue of the appropriateness of Winston to either the same impartial hearing officer who rendered the decision below or the impartial hearing officer to whom respondent's second due process complaint notice dated October 27, 2006 has been assigned. 

In its answer to respondent's cross-appeal, petitioner argues that the impartial hearing officer properly denied respondent's request for tuition funding because she did not meet her burden of showing that Winston is an appropriate placement for the student.  Petitioner also objects to respondent's request that the case be remanded, arguing, among other things, that remanding the matter to the same impartial hearing officer would impermissibly allow respondent to relitigate issues.  According to petitioner, remanding the matter to a different impartial hearing officer would amount to forum shopping and would create the possibility of having two decisions on the same case with contradictory conclusions.

Turning first to petitioner's appeal, an impartial hearing officer must base her decision "solely upon the record of the proceeding before the impartial hearing officer" (8 NYCRR 200.5[j][5][v]).  There is no authority for an impartial hearing officer to reopen a hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties (see Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-056; Application of the Bd. of Educ., Appeal No. 02-043; Application of the Bd. of Educ., Appeal No. 98-16).  There is no authority for the filing of multiple due process complaint notices on the same issue.  To allow parties to file multiple due process complaint notices on the same issues would undermine the interests of judicial economy, create unnecessary duplication of time, expense, witnesses, exhibits and other resources, and place an unwarranted burden on families and school districts (see Application of a Child with a Disability, Appeal No. 04-061; see also Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450 at *6 [N.D.N.Y. Dec. 19, 2006] [quoting Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]] [internal quotations omitted] ["The doctrine of res judicata precludes parties from litigating issues that were or could have been decided in a prior proceeding."]).  Permitting multiple due process complaint notices on the same issue would also frustrate the extensive due process provisions of IDEA that are intended to provide the parties with an inexpensive and expeditious method for resolving disputes (see Does v. Mills, 2005 WL 900620, at *8 [S.D.N.Y. April 18, 2005]; Application of a Child with a Disability, Appeal No. 03-018; Application of a Child with a Disability, Appeal No. 97-11).  

Moreover, allowing a party to file a duplicative due process complaint notice after the issues have been decided in an impartial hearing would run afoul of the finality provisions set forth in IDEA and its implementing regulations.  Both federal and state regulations provide that an impartial hearing officer's decision is final unless appealed to a State Review Officer (20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.514[a];⁴ 8 NYCRR 200.5[j][5][v]).  If there is an appeal to a State Review Officer, the independent decision on review is final; however, either party may seek judicial review of a State Review Officer's decision (34 C.F.R. § 300.514[d]; 8 NYCRR 200.5[k][3]).  

I find that the impartial hearing officer rendered a decision adjudicating respondent's claim on the merits.  At the impartial hearing, respondent was represented by counsel.  Respondent presented testimonial and documentary evidence (see Tr. pp. 7-49; Parent Exs. 1-7).  There is no indication in the record, and respondent does not argue on appeal, that respondent was prevented from offering any evidence at the impartial hearing.  The impartial hearing officer issued a decision that evaluated the evidence presented at the impartial hearing and made factual determinations and conclusions of law.  Principles of finality dictate that the decision received after going through an impartial hearing is a final decision, subject only to an appeal (20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.514[a]; 8 NYCRR 200.5[j][5][v]).  Under the circumstances presented in this case, where the impartial hearing officer adjudicated respondent's claim on the merits based on the record before her, I find that the impartial hearing officer erred by qualifying the dismissal of respondent's claim as "without prejudice." 

Regarding respondent's cross-appeal, I concur with the impartial hearing officer that respondent has not met her burden of demonstrating that the services provided by Winston were appropriate to meet the student's special education needs.  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., that "the private education services obtained by the parents were appropriate to the child's needs" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]; see Frank G. v. Bd. of Educ., 459 F.3d 356, 363-64 [2d Cir. 2006]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "The parents satisfy their Burlington burden by showing that their unilateral placement offered an educational program that met their child's special needs"(Matrejek v. Brewster Cent. School Dist., 2007 WL 210093, at *3 [S.D.N.Y. Jan. 9, 2007]).  I concur with the impartial hearing officer that the conclusory statement by Winston's Director of Operations and Educational Research that Winston is appropriate for the student (Tr. p. 35) and respondent's testimony that classes are "easy" for the student and that he is "happy" (Tr. p. 14) does not provide sufficient proof that Winston is appropriate for the student.  Accordingly, respondent's request that petitioner pay the student's tuition costs at Winston for the 2006-07 school year is denied.

In view of the foregoing, I will annul the impartial hearing officer's decision dated October 23, 2006 insofar as it ordered dismissal "without prejudice."  As a final note, the record indicates that respondent's son can be appropriately educated in a public school setting and there is no evidence suggesting that petitioner cannot meet the student's special education needs.  Accordingly, a CSE should reconvene as soon as possible and offer the student an appropriate program and placement for the 2006-07 school year consistent with the requirements of the IDEA.

Based upon my above determinations, it is not necessary to address the parties' remaining assertions contained in the appeal and cross-appeal.

            THE APPEAL IS SUSTAINED.

            THE CROSS-APPEAL IS DISMISSED.

            IT IS ORDERED that the impartial hearing officer's decision dated October 23, 2006 is hereby annulled to the extent that dismissal was ordered "without prejudice."