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 her due process complaint notice on the basis of res judicata.  Respondent (the district) cross-appeals, raising alternative grounds to deny the parent's request for the district to fund the costs of her daughter's private services delivered by EDopt, LLC (EDopt) for the 2023-24 school year.  The appeal must be sustained.  The cross-appeal must be dismissed.  The matter is remanded to the IHO for further proceedings.

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

A CSE convened on December 16, 2020, determined that the student was eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation of the same date that recommended that the student receive four periods per week of group special education teacher support services (SETSS), and two 40-minute sessions per week of speech-language therapy (Parent Ex. B at pp. 1, 9).[1]^, [2]  The hearing record does not include any other IESPs developed for the student.

The hearing record includes a document dated April 25, 2023, reflecting that it was "To" the CSE chairperson and "From" the parent, identified the student's name and address, and recited that the document was "Re" Notice of Residence to School District of Location and Request for Services" (Parent Ex. E at p. 1).  The document in evidence is accompanied by a transmittal email (id. at p. 2).

On September 7, 2023, the parent electronically signed an "Enrollment Agreement for the 2023-24 School Year" with EDopt (Parent Ex. C).  According to the contract, EDopt was to provide the student with services for the 2023-24 school year "[as] per the last agreed upon IEP/IESP/FOFD" at rates set forth in Schedule A attached thereto (id. at p. 2).

In a letter dated September 26, 2023, the parent, through her advocate, notified the district that it had failed to assign a provider to deliver services to the student during the 2023-24 school and that the parent intended to "unilaterally obtain the mandated services through a private agency at an enhanced market rate" (Parent Ex. D).

The evidence in the hearing record indicates that EDopt provided the student with SETSS during the 2023-24 school year (see Parent Exs. G; H).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent, through her advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (Parent Ex. A).  The parent claimed the district failed to develop an educational program for the student and failed to assign any providers to deliver services to the student for the 2023-24 school year (id. at p. 2).  In addition, the parent alleged that she had been unable to locate a provider willing to accept the district rates and consequently had no choice but to retain the services of an agency to provide the mandated services at an enhanced rate set by the provider (id.).  Specific to the 2024-25 school year, the parent alleged that the district had not yet developed an updated educational plan for the student (id.).  As relief, the parent requested, in pertinent part, that the district be required to fund the unilaterally obtained services at the provider's enhanced rates together with a bank of compensatory education to make-up for any mandated services not provided by the district to the student during the 2023-24 school year (id. at p. 3).  In addition, the parent sought an order requiring the district to provide the student with the services and supports set forth in the December 2020 IESP for the 2024-25 school year to be ordered at enhanced rates to ensure the parent would have the capacity to implement the ordered services in a timely and continuous manner (id.).

The district submitted a response to the due process complaint notice dated August 29, 2024, generally denying the allegations set forth in the due process complaint notice and asserting multiple affirmative defenses (Due Process Response).

B. Impartial Hearing Officer Decision

An impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) took place on February 10, 2025 (Tr. pp. 1-29).  At the hearing, the parent, through a parent advocate, withdrew her claims for the 2024-25 school year, along with her requests for direct funding of speech-language therapy for the 2023-24 school year and for a bank of compensatory periods of services not provided to the student during the 2023-24 school year (Tr. pp. 6-7).  The parent's sole remaining claim was for direct funding of SETSS provided to the student by EDopt during the 2023-24 school year (Tr. p. 6).

Near the conclusion of the hearing, the IHO became aware and noted on the record that the present matter had been pending consolidation with IHO Case No. 281837 (the prior proceeding) in which the parent had requested relief for the 2022-23 school year based on a November 30, 2021 IESP and also sought a bank of compensatory SETSS and speech-language therapy not provided by the district to the student during the 2023-24 school year (Tr. pp. 24-28; see IHO Ex. I).  Further, the IHO ascertained that a decision had been issued in the prior proceeding by another IHO a few weeks earlier on January 29, 2025, denying the parent's request for a bank of compensatory education services hours for the 2023-24 school year because the parent failed to present any testimony or evidence to support that request (Tr. p. 26; see IHO Ex. II).  Based on the foregoing, the district moved to dismiss the present matter based on issue and claim preclusion (Tr. pp. 26, 28).[3] The parent advocate opposed the motion arguing that the issues in the two proceedings were different and that the present matter should not be dismissed (Tr. p. 28).  The IHO withheld a decision pending her further review of the issue (id.).

In a decision in the present matter, dated February 12, 2025, the IHO found that, in the prior proceeding, the parent had an opportunity to present all her claims for the 2023-24 school year, and ultimately pursued a request for compensatory education, which had been denied (IHO Decision at p. 5).  The IHO determined that the parent's request for direct funding of SETSS for the 2023-24 school year arose from "similar claims that concern[ed] whether [the s]tudent received services in the 2023-2024 school year" that underlay the request for compensatory education services pursued in the prior proceeding, which was fully adjudicated on the merits (id.).  The IHO concluded that the parent should not get a "second bite at the apple" by pursuing her claims in a different proceeding (id.).  Accordingly, the IHO dismissed the parent's claim for direct funding of SETSS for the 2023-24 school year based on the doctrine of res judicata (id.).

IV. Appeal for State-Level Review

The parent appeals asserting that the IHO erred in dismissing her claim for direct funding of unilaterally obtained SETSS for the 2023-24 based on res judicata.  The parent argues that there was a "clear typo" in the due process complaint notice filed in the prior proceeding.  According to the parent, that due process complaint notice was supposed to request, "Compensatory Education services to be provided to the [s]tudent as a bank, to make-up for any mandated services not provided by the [district] during the 22-23 school year" .  As such, the parent argues that the reference to the 2023-24 school year in that due process complaint notice was "an inadvertent error."  In support, the parent maintains that she made no reference to the 2023-24 school year during the hearing in the prior proceeding and provided no evidence relating to that school year (id.).  Accordingly, the parent contends that her claims in the present matter pertaining to the 2023-24 school year, had not been previously litigated and consequently res judicata was not applicable.  The parent requests that the present matter be remanded to the IHO so that she can make the appropriate determinations on the parent's claims pertaining to the 2023-24 school year.

In an answer and cross-appeal, the district argues, in pertinent part, that the IHO's dismissal of the parent's due process complaint notice, which sought as relief direct funding of SETSS provided in the 2023-24 school year, based on res judicata should be affirmed.  In the alternative, the district argues that the parent's claim should be dismissed because she failed to sustain her burden of proof regarding the appropriateness of the unilaterally obtained SETSS and equitable considerations do not support the relief.

V. Discussion - Res Judicata/Collateral Estoppel

The primary issue on appeal is whether the IHO correctly dismissed the parent's due process complaint notice based on 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]).[4]

The related doctrine of collateral estoppel "precludes parties from litigating a legal or factual issue already decided in an earlier proceeding" (Grenon, 2006 WL 3751450, at *6 [internal quotations omitted]).  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]; see Perez, 347 F.3d at 426; Boguslavsky v. Kaplan, 159 F.3d 715, 720 [2d Cir. 1998]).

Here, the IHO relied on the decision rendered in the prior proceeding to determine that the parent's claim that the district failed to develop an educational plan or arrange for delivery of services to the student for the 2023-24 school year was barred by res judicata (IHO Decision at pp. 4-5; IHO Ex. II).  Understandably, the IHO in the present matter was concerned with the parent's requested relief for compensatory education services for the 2023-24 school year that was asserted in the due process complaint notice filed in the prior proceeding (IHO Ex. I at p. 3).  However, the claims asserted in that complaint related to the district's failure to engage in educational planning or deliver services to the student for the 2022-23 school year (id. at pp. 1-2), and, while the IHO in the prior proceeding denied compensatory education relief for the 2023-24 school year based on the lack of evidentiary support, it does not appear that she made any substantive findings about alleged violations on the part of the district pertaining to the 2023-24 school year (see IHO Ex. II).  Ultimately, the hearing record contains no transcript or exhibits from the prior proceeding (IHO Exs. I; II).  As such, among other things, the validity of the parent's advocate's representations in the present proceeding that the reference to the 2023-24 school year in the due process complaint notice filed in the prior proceeding was an "inadvertent error" and that the parent "did not intend or actually litigate any claim relating to the 23-24 school year in [the prior proceeding]" cannot presently be ascertained (Req. for Rev. at p. 4).  For these reasons, the record is insufficient to make a determination as to the applicability of res judicata or collateral estoppel.[5]   Accordingly, the IHO's February 12, 2025 decision must be vacated and the matter remanded to that IHO for further proceedings as discussed above.[6]

VI. Conclusion

Having determined that the record is insufficient to determine the applicability of res judicata or collateral estoppel, the IHO's decision is vacated and the matter remanded to the IHO for further development of the record and determinations based on that record.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated February 12, 2025, is vacated; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO to further develop the record to determine the applicability of res judicata and collateral estoppel based thereon, and, if necessary, to render determinations on the parent's claims and requests for relief pertaining to the 2023-24 school year.