The State Education Department
State Review Officer

No. 04-061





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 Springville-Griffith Institute Central School District


Leslie C. Savage, Esq., attorney for respondent



        Petitioner appeals from a decision of an impartial hearing officer which determined that the educational services and program respondent's Committee on Special Education (CSE) recommended for her son for the latter part of the 2003-04 school year were appropriate. The appeal must be dismissed.

        At the time of the hearing request, on February 20, 2004, petitioner's son was 16 years old and mid-way through his tenth grade year at respondent's Springville High School (Tr. Apr. 27, 2004 pp. 125, 122; Dist. Ex. 33). Both petitioner and respondent agree that the student, who is college-bound, is very intelligent with superior abilities in math (Tr. June 3, 2004 p. 64; Tr. Apr. 27, 2004 pp. 45, 51, 114, 104; Tr. May 20, 2004 p. 221; Dist. Ex. 33 at 3). Recent testing revealed that the student had a verbal IQ score of 119, a performance IQ score of 119, and a full scale IQ score of 121, which is in the superior range (see Dist. Ex. 33 at 2). The student also reportedly tested in the above average range for achievement in broad reading, broad math, and broad written language (id.). The student can read and understand adult reading material and newspapers, can discuss political situations, scientific discoveries, and current events, and can comment on social mores in a mature manner (Dist. Ex. 33 at 2). In the classroom, it was noted he often needs a faster pace for material to be presented, struggles with waiting for the rest of the class and can lose interest (id.). He is described as often more comfortable with adults intellectually as they more often have similar interests (id.).

        In the early part of 2003, while the student was in ninth grade, he was evaluated by a clinical social worker and diagnosed with signs of mild to moderate depression (Dist. Ex. 55), after which he was referred by his parents to respondent's CSE (Tr. May 20, 2004 p. 210). The CSE performed a psychological evaluation on the student (Dist. Ex. 51), and in April 2003 (as part of a settlement agreement from a previous impartial hearing) the CSE classified the student as other health impaired (OHI) (Tr. May 20, 2004 p. 211).

        On June 19, 2003 the CSE met to develop a program for the student for the 2003-04 school year (Dist. Ex. 34). The student's mother was present at the meeting and actively participated, drafting the individualized education program’s (IEP’s) detailed three-page account of the student's present levels of performance IEP (Dist. Ex. 34 at 2-4; see Tr. Apr. 27, 2004 pp. 42-44, 111, 142; Parent Ex. B). The CSE noted that the student's main areas of need were in organizational skills and counseling (Dist. Ex. 34; see Tr. Apr. 27, 2004 pp. 65, 129). The student was described as extremely disorganized with his school work, personal belongings, and materials needed to complete assignments, often losing materials, papers, notes, and forgetting assignments and deadlines (Dist. Ex. 34 at 2). Although it was noted in his present levels of performance that his depression had improved since January 2003 (Dist Ex. 34 at 4), he was described as still needing some help with anger, stress, and depression (id.). The CSE continued to classify the student as OHI, and provided individual counseling services for 30 minutes once per week, resource room services for 40 minutes five times per week, and indirect consultant teacher services for 25 minutes five times per week (Dist. Ex. 34 at 1). Goals and objectives included daily individual assistance from a special education teacher in organizing his school work and keeping an assignment binder, daily faxes with homework assignments, checklists for college planning, and goals and objectives for counseling (Dist. Ex. 34 at 5-6). Program modifications included training staff to recognize signs of depression (Dist. Ex. 34 at 7).

        By letters dated August 25 and September 16, 2003 the student's mother objected to the June 2003 IEP (Parent Exs. A, B), and requested a CSE meeting to discuss her son's IEP goals (Parent Ex. B). After attempts to meet on a mutually agreeable date in October failed (see Parent Ex. C; Tr. Apr. 27, 2004 pp. 74-75), a meeting was scheduled for November 18, 2003 (Dist. Ex. 39). Both the student's mother and father, and their advocate, attended this meeting. (Dist. Ex. 39 at 3). The student's mother was an active participant at the November meeting, suggesting that some goals and objectives be reworded or eliminated as duplicative (Tr. Apr. 27, 2004 pp. 85-92; Tr. Apr. 29, 2004 p. 64; see Dist. Ex. 39 at 17-18, 20). The time of the meeting elapsed and the parties agreed to continue the meeting at a later date (Tr. Apr. 27, 2004 pp. 74, 83-84; Dist. Ex. 39). The CSE chair followed up with a letter to the student's mother on December 2, 2003 inquiring as to when she would be available to finish the CSE meeting (Tr. Apr. 27, 2004 pp. 92, 126, 210).

        By letter dated December 12, 2003, the parents' advocate, on behalf of the student's father, objected to the 2003-04 IEP and requested an impartial hearing (IHO Ex.1, Tab A). The student's mother was aware of the request for a due process hearing (Tr. Apr. 8, 2004 p. 29). The record reveals that the student's parents reside at the same address (see Parents' Exs. A, B, C; IHO Decision, p. 13). The record also reveals that the parents' advocate and the student's mother are co-executive directors of a parents' advocacy group located within the district which routinely represents parents of children with disabilities in impartial due process hearings (Tr. Apr. 8, 2004 pp. 28, 64; see IHO Ex. 3); and that that parents' advocacy group represented the student's father in his due process hearing request (IHO Ex.1, Tab A). A hearing officer was appointed (Hearing 1), and by letter dated December 16, 2003 the hearing officer informed the parties that he intended to hold a prehearing telephone conference to identify the issues (see IHO Ex. 1, Tab B). After three weeks of silence from the parents and their advocate, the advocate informed the impartial hearing officer that they would not participate in any telephone conference unless there was a verbatim record, refused to discuss the issues in specificity or stipulate to any facts or evidence, and also notified the hearing officer that they had lodged a complaint against him with the State Education Department and, because of that complaint, requested that the hearing officer recuse himself since he would allegedly be unable to remain impartial (IHO Ex. 1, Tab H; see also IHO Ex. 1, Tab B). After numerous attempts to get the student's father and his advocate to participate in the prehearing conference on January 27, 2004 to no avail, on February 6, 2004, the hearing officer ultimately rendered a decision dismissing the father's petition (IHO Ex. 1, Tab B). The student's father and the parents' advocate appealed that decision to the State Review Officer (IHO Ex. 1, Tab C; see Application of a Child with a Disability, Appeal No. 04-010).

        At about the same time that the student's father and the parents' advocate were refusing to cooperate with the hearing officer in scheduling a prehearing conference in Hearing 1, on December 15, 2003 the CSE chair scheduled a CSE meeting for January 20, 2004 as per the student's mother's request (Dist. Ex. 37 at 6; Tr. Apr. 27, 2004 pp. 98, 100-101, 126; Dist. Ex. 38 at 1; Tr. June 03, 2004 pp. 49-50). By letter dated December 30, 2003 both parents were notified and invited to attend the meeting (Dist. Ex. 37 at 4). Although the district had set aside three hours for the meeting, allegedly at the mother's request (Tr. Apr. 27, 2004 pp. 98, 100; Tr. Apr. 29, 2004 pp. 89, 91; see Dist. Ex. 37 at 4; cf. Tr. June 03 2004 p. 88), when the student's mother arrived she informed the other members of the CSE that she could only stay for one hour due to a prior commitment (Tr. Apr. 27, 2004 pp. 100-101; Dist. Ex. 38 at 14). At the meeting, the student's psychologist (Dist. Ex. 38 at 2, 3), his special education teacher (Dist. Ex. 38 at 11), and the student's mother (Dist. Ex. 38 at 3, 12), all agreed that the student had shown improvement during the first half of the school year as a result of counseling. The school psychologist noted that the student's attitude toward school had improved and the student did not describe himself as depressed (Dist. Ex. 38 at 2, 9). Both the school psychologist and the student's mother acknowledged that the student was no longer clinically depressed (Dist. Ex. 38 at 9, 13; Tr. Apr. 29, 2004 p. 129). The school psychologist opined that the student no longer needed counseling, but that she was willing to go "above and beyond" and continue to provide it (Dist. Ex. 38 at 27). The student's mother raised her concern that the counseling goals and objectives were not measurable, but the school psychologist informed her that they were measurable by the Behavior Assessment System for Children (BASC), a tool she was currently using with the student (Dist. Ex. 38 at 6, 10-11, 24, 26). The student's mother also wanted to add goals on social skills and independence (Dist. Ex. 38 at 14), even though neither the student's psychologist nor his special education teacher saw the student as lacking in those skills (Dist. Ex. 38 at 16). She questioned whether using the college planning booklet and checklist was enough of a transition plan (Dist. Ex. 38 at 29). She raised the issue of receiving an accommodation for her son to exempt him from swim class in gym due to the student's alleged aversion to using the school pool (Dist. Ex. 38 at 20-22). Lastly, she inquired as to the possibility of her son graduating early and/or obtaining college credits while still in high school (Dist. Ex. 38 at 31-44).

        In response to the parents' concerns as expressed at both the November 2003 and January 2004 meetings, the CSE amended the student's June 2003 IEP in the following three ways: (1) some of the IEP's goals and objectives were reworded and some duplicate objectives were eliminated, as per the student's mother suggestions (Dist. Ex. 33 at 5-6; see Dist. Ex. 38 at 18-19, 28-30; Tr. Apr. 27, 2004 pp. 129-30; Tr. Apr. 29, 2004 pp. 64, 189-90, 194; Tr. May 20, 2004 p. 51), (2) the progress report requirement was changed from quarterly to every five weeks at the mother's suggestion (Dist. Ex. 33 at 9; see Tr. June 03, 2004 p. 67; Tr. Apr. 29, 2004 p. 67), and (3) in response to the student's mother's concerns about social issues, the student's counseling sessions, which were originally scheduled for 30 minutes of individual counseling once per week, were changed so as to allow for his counseling sessions to alternate each week between group and individual counseling (Dist. Ex. 33 at 1; see Dist. Ex. 38 at 15; Tr. Apr. 29, 2004 pp. 127-28, 186-87). In all other aspects the IEP remained the same (compare Dist. Exs. 33, 34).

        On February 20, 2004, two weeks after the original hearing brought by the student's father was dismissed, the same parents' advocate requested another impartial hearing on the student's educational program for the 2003-04 school year, this time on behalf of the student's mother (IHO Ex. 1, Tab D). The student's mother's request asserted the exact same inadequacies in the student's 2003-04 program as the student's father’s request had in the first hearing. In fact, the two letter requests for hearings were virtually identical (compare IHO Ex. 1, Tabs A, D), except the mother's hearing request specified it was referring to the program as "recommended by the CSE dated January 20, 2004" (IHO Ex. 1, Tab D).

        A new hearing officer was appointed to preside over the mother's hearing request (Hearing 2). Hearing 2 commenced on April 8, 2004; both the student's mother and the parents' advocate attended (Tr. Apr. 8, 2004 pp. 2-3). On the first day of the hearing, the district made a motion to dismiss the case, claiming that the student's father had made a challenge to the same year's program for the same student on the same allegations which had been dismissed and was currently pending before the State Review Officer, and that dismissal of an action was the appropriate remedy where another action was pending between the same parties on the same issues (Tr. Apr. 8, 2004 pp. 5-11, 16; IHO Ex. 1). The IHO denied the motion to dismiss, but limited the scope of Hearing 2 solely to any procedural and substantive issues arising out of any new elements produced in the January 20, 2004 IEP and/or their implementation (Tr. Apr. 8, 2004 pp. 48-49, 67). The district then made a motion for the parents to identify the issues, i.e., the specific procedural and substantive violations that they were alleging (IHO Ex. 2; Tr. Apr. 8, 2004 p. 49), and the hearing officer directed petitioner to do so (Tr. Apr. 8, 2004 pp. 72-74). The parents' advocate, as in Hearing 1, initially refused to specify the exact issues in controversy, other than to assert that respondent had procedurally and substantively denied the student a free appropriate public education (FAPE), claiming that she was not required by regulation to do so (Tr. Apr. 8, 2004 pp. 53-54, 57, 63-65, 75-77; see also IHO Ex. 1, Tab D); however, by the end of the day, the parents' advocate did eventually specify some alleged procedural violations and substantive inadequacies with the student's 2003-04 program (Tr. Apr. 8, 2004 pp. 79-85).

        On April 16, 2004 the State Review Officer rendered a decision dismissing the father's appeal from Hearing 1, finding that the hearing officer was correct in dismissing the request for a hearing based on the refusal of the parent and the advocate to participate in the proceedings (see Application of a Child with a Disability, Appeal No. 04-010). On April 23, 2004 the district renewed their motion to dismiss Hearing 2, citing the State Review Officer's decision, and adding that the parties were now precluded (presumably by principles of collateral estoppel [issue preclusion] and/or res judicata [claim preclusion])1 from relitigating the same case or controversy in Hearing 2 (IHO Ex. 4; Tr. Apr. 27, 2004 pp. 16-20). The hearing officer again denied the district's motion to dismiss, but held that his prior ruling limiting the scope of Hearing 2 would remain in effect (Tr. Apr. 27, 2004 p. 33).

        Hearing 2 was held on five separate days, ending on June 6, 2004. On July 15, 2004 the hearing officer rendered a decision, finding that, despite the existence of some procedural infractions, petitioner's son was not denied a FAPE. He did however order the district to begin logging all indirect consultant teacher services provided to the student, to modify its standard letter announcing CSE meetings to specifically inform parents of their right to participate as a member of the CSE, to complete an evaluation on the student to determine whether or not he has "pool phobia," and to make sure that the progress reports that are provided to the parents every five weeks directly correspond to the student's goals and objectives. He also ordered the CSE to reconvene within 45 days to calculate missed counseling sessions from the spring 2004 term and to reschedule them, to reevaluate the BASC method of measuring progress in counseling goals, to determine if the student still has any daily living/hygiene needs, and to consider the student's absenteeism and monitor its effect on his program. He also ordered the CSE, in developing the student's 2004-05 program, to review the student's present levels of performance as well as his counseling goals and objectives and modify them if needed.

        Petitioner appeals the impartial hearing officer's decision in Hearing 2, requests that it be annulled, and seeks the following relief: (1) a determination that her son was denied a FAPE, (2) a determination that the district infringed upon the parents' right to participate in the creation and formulation of the IEP, (3) an order directing the district to provide proper notice of all CSE meetings, (4) an order for compensatory or additional indirect consultant teacher services, resource room services, counseling and transition services for any such services on the student's IEP that the district failed to implement, (5) an order providing an accommodation for the student's "pool phobia" in physical education class, (6) an order directing the district to provide progress reports on the student's goals and objectives every five weeks, (7) an order directing the district to provide staff training on depression, as required in the IEP (Pet. pp.18-19).

        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 FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE consists of 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[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

        To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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]). 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 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL31521158 [S.D.N.Y. Nov. 14, 2002]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

        As a preliminary matter, I note that petitioner did not appeal that part of the hearing officer's decision that limited the scope of the hearing to only procedural and substantive issues arising out of any new elements in the January 2004 IEP and their implementation (IHO Decision, pp. 12-16; see Tr. Apr. 8, 2004 pp. 48-49, 67), as such, that part of the decision is final and binding (see 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]; Application of a Child with a Disability, Appeal No. 04-018; Application of the Bd. of Educ., Appeal No. 03-001) and similarly limits the scope of this appeal. I note for future clarification that the hearing officer was correct in this ruling. Generally, petitioners may not re-litigate issues which have been decided in a prior proceeding (Application of a Child with a Disability, Appeal No. 97-83; Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 95-44; Application of a Child with a Disability, Appeal No. 95-54). Although the merits of petitioner and her husband's claims were not reached in the first hearing, all of petitioner’s and her husband's claims regarding the district's provision of a FAPE in the June 2003 IEP were dismissed in Application of a Child with a Disability, Appeal No. 04-010, with no allowance given for petitioners to refile without prejudice.2 In the present case, while it is true that, at the mother's request, an amended IEP was developed for the 2003-04 school year in January 2004 (during the same time her husband and the parents' advocate were refusing to participate in a prehearing conference in Hearing 1); the IEP that resulted from the January 2004 CSE meeting was identical to the IEP developed at the June 2003 CSE meeting, with the exception of some minor changes made in an effort to address the mother's concerns, i.e., the addition of a group counseling session, rewording of certain goals and objectives, and a change from quarterly reports to five-week progress reports (compare Dist. Exs. 33, 34). It is these three issues which were the proper scope of Hearing 2 and this appeal, and the hearing officer was correct in limiting the new hearing to those new issues. Having so stated, I note that the hearing officer, during the course of the hearing did err in expanding his ruling to improperly allow evidence and testimony into the hearing that at times reverted back to issues contained in the initial June 2003 IEP which was the subject of the earlier dismissed hearing request (Tr. Apr. 8, 2004 pp. 87-88, 90-91; see, e.g. Tr. Apr. 27, 2004 pp. 188, 193-94; Tr. Apr. 29, 2004 p. 92; Tr. May 20, 2004 p. 138). To the extent that those issues are discussed in this appeal, it is only to underscore their lack of merit, since those claims were previously dismissed by operation of Application of a Child with a Disability, Appeal No. 04-010 and are not properly before me. To hold otherwise would be to allow petitioner and her husband to do an end-run around the decision in Application of a Child with a Disability, Appeal No. 04-010 simply by requesting a new CSE meeting and reiterating every part of the June 2003 IEP at that meeting in an attempt to revive their previous claims surrounding the 2003-04 program which had already been dismissed in a prior proceeding.

        Turning now to petitioner's requested relief in the instant appeal, I note that the majority of the relief petitioner is seeking was already ordered by the impartial hearing officer. In response to petitioner's request for an order directing the district to provide proper notice of all CSE meetings, I note that the hearing officer ordered respondent to modify notices to inform parents of the right to participate as a member in the CSE meeting (IHO Decision, Order #6). In response to petitioner's request for an order for compensatory or additional services for any counseling sessions not provided, I note that the hearing officer specifically ordered the CSE to reconvene to calculate any missed counseling sessions and to devise a new program that would make up for any such missed sessions (IHO Decision, Orders #5, 13). In response to petitioner's request for an order providing an accommodation for the student's alleged "pool phobia," I note that the hearing officer ordered the CSE to, after obtaining the parents' consent, complete an evaluation on whether or not the student has "pool phobia" in order to determine whether he requires any accommodation (IHO Decision, Order # 7). In response to petitioner's request for an order directing respondent to provide progress reports relating to goals and objectives to the parents every five weeks in accordance with the student's IEP, I note that the hearing officer already specifically ordered this as well (IHO Decision, Orders # 1, 8, 14, 15).

        As to petitioner's request for compensatory education or additional services for alleged inadequate provision of resource room services, indirect consultant teacher services, or transition services, the record fully supports and I therefore adopt the hearing officer's findings of fact numbered 6, 7, 8, and 9 (IHO Decision, p. 30-31) that such services were provided in accordance with the student's IEP, as testified to by the student's special education/resource room teacher (Tr. May 20, 2004 pp. 100, 104, 159-162; Dist. Ex. 56; Tr. May 20, 2004 pp. 109-110, 126-27; Tr. May 20, 2004 pp. 140-41) and the CSE chair (Tr. Apr. 27, 2004 pp. 121, 141; Tr. Apr. 27, 2004 pp. 132-33; Tr. Apr. 29, 2004 p. 84). In addition, petitioner's claim on appeal that respondent failed to provide staff training in depression as stated in the student's IEP is disingenuous, if not frivolousFN3, in light of the fact that the school psychologist (Tr. Apr. 29, 2004 pp. 140-44), the special education teacher (Tr. May 20, 2004 pp. 111-12), and the CSE chair (Tr. Apr. 27, 2004 pp. 60, 137-38; Tr. Apr. 29, 2004 pp. 68-71) all testified at the hearing that such training was provided by the school psychologist, and the parent's only response was that she had no personal knowledge that the training occurred (Tr. June 3, 2004 pp. 39-40). Petitioner's claim that she was not allowed to participate in the formulation of her son's IEP is likewise disingenuous, given the fact that the record supplies ample evidence of her involvement at every step in the process, and she herself admits that she wrote the vast majority of the IEP herself, including three pages of present levels of performance, as well as wording and rewording several goals and objectives (Parent Ex. B; Tr. June 3, 2004 pp. 48-49, 56-57; see Tr. Apr. 27, 2004 pp. 111, 127-28, 130, 142; Tr. Apr. 29, 2004 pp. 64, 189-90, 194; Tr. May 20, 2004 p. 51). I note also that I have reviewed the transcript from the January 2004 CSE meeting, and I find that the members of the CSE were cooperative and open to the parent's suggestions, consistently asking petitioner how the goals could be reworded to please her, and made every effort to accommodate her wishes and involve her in the process (Dist. Ex. 38 at 7-8, 9, 10-11, 13, 14, 18-20, 21, 26, 28-29, 30-31,44, 47).

        I also agree with the hearing officer that petitioner's son was provided a FAPE by respondent. A careful review of the record reveals that the student's IEP met the student's needs and was reasonably calculated to provide educational benefits, and I concur with the hearing officer that any procedural errors that occurred did not amount to a denial of FAPE. It is undisputed that his two areas of need were counseling for his depression and help with organizational and study skills (Dist. Ex. 34; see Tr. Apr. 27, 2004 pp. 65, 129; see also Parent Ex. B). The January 2004 IEP provides for counseling sessions in either group or individual counseling for 30 minutes every week (Dist. Ex. 33). As noted, the people in closest contact with the student, the school psychologist administering his counseling, his special education teacher, and the student's mother, all agreed that the student had made good progress in counseling during the 2003-04 school year to the point where they all agreed he no longer showed signs of clinical depression (Dist. Ex. 38 at 9, 13, 16; Tr. Apr. 27, 2004 p. 149; Tr. Apr. 29, 2004 pp. 127-28, 164; May 20, 2004 p. 112; Tr. June 3, 2004 pp. 11-12). As far as organizational needs, the IEP goals and objectives included one-to-one assistance in setting up and maintaining a three ring binder to keep track of homework assignments and notes, with daily faxes home to the parent to make sure the student was keeping up with his school work on a daily basis (Dist. Ex. 33 at 6; see Dist. Exs. 88, 88B; Tr. May 20, 2004 p. 101), which the student's mother acknowledged she received every day (Tr. June 3, 2004 p. 66), and weekly reports from the student's special education teacher (Tr. May 20, 2004 p. 103). Using these methods, the student's resource room teacher reported that the student had shown improvement and independence in organizing and keeping track of his assignments (Tr. May 20, 2004 pp. 106-08). Given this student's abilities and his desire to attend college, I also find that the checklist provided in the college planning booklet (Parent. Ex. L) used by the student's resource room teacher (Tr. May 20, 2004 pp. 140-42) and as identified on the student's IEP, to be an adequate transition planning tool for this student. In short, I find that respondent has met its burden of establishing that it provided petitioner's son with a FAPE for the 2003-04 school year.

        Having found that the student was not denied a FAPE, and that the majority of petitioner’s requests for relief were either already specifically ordered by the hearing officer or were clearly contradicted by the record, normally the inquiry would be at an end; however, I find that the circumstances surrounding this case compel me to address two additional issues that are likely to recur in the future. First, in both Hearing 1 and Hearing 2 petitioners and their advocate initially refused to give a more specific statement on what the parent's objection was concerning the development of the student’s program when each hearing officer directed them to do so prior to the start of the hearing (Tr. Apr. 8, 2004 pp.63-65, 72-73; IHO Ex. 1, Tab B at 7, 11). The advocate claimed that the parent did not have to do so because it was the district’s burden to prove that they provided an appropriate program, which she claimed meant respondent must go forward to prove that it complied with "all of the procedures, every one of them" (Tr. Apr. 8, 2004 p.54; see also Tr. Apr. 8, 2004 p. 65). She stated that she and the student’s mother had worked on "over a hundred impartial hearings, and all of our hearing requests were written the same" and that "not once has the Office of State Review indicated that our hearing requests did not comply with the regulations" (Tr. Apr. 8, 2004 p. 64).

        The IDEA, as well as both state and federal regulations, specify the required content of parent notice in a due process hearing request (20 U.S.C. § 1415[b][7][B]; 34 C.F.R. § 300.507[c][2]; 8 NYCRR 200.5[i][1][i]). In addition to the name and address of the child and the name of the child’s school, such notice must also include "a description of the nature of the problem of the child relating to such proposed initiation or change [in the child's program], including facts relating to such problem" (20 U.S.C. § 1415[b][7][B][ii]; see 34 C.F. R. § 300.507[c][2][iv]; 8 NYCRR 200.5[i][1][i][d]), and "a proposed resolution of the problem to the extent known and available to the parents at the time" (20 U.S.C. § 1415[b][7][B][iii]; 34 C.F.R. § 300.507[c][2][v]; 8 NYCRR 200.5[i][1][i][e]). The U.S. Department of Education has promulgated an additional implementing regulation, not found in the IDEA, which provides that a parent’s failure to give proper notice as required by 20 U.S.C. § 1415(b)(7)(B) will not delay or deny a parent’s right to a due process hearing (34 C.F.R. § 300.507[c][4]; see also 8 NYCRR 200.5[i][1][i][f]). The 1997 Amendments to the IDEA added a provision that attorneys' fees could be reduced if the parent's attorney failed to provide the school district with proper notice of the complaint in accordance with 20 U.S.C. § 1415(b)(7)(B) (see 20 U.S.C. § 1415[i][3][F][iv]). In emphasizing the importance of the sufficiency of notice provision, both the Senate and House Committee Reports on the 1997 Amendments noted that "The committee believes that the addition of this provision will facilitate an early opportunity for schools and parents to develop a common frame of reference about problems and potential problems that may remove the need to proceed to due process and instead foster a partnership to resolve problems" (Senate Rpt.105-017, Individuals with Disabilities Education Act Amendments of 1997, Part V: Explanation of Bill and Committee Views, Title I-Amendments, Procedural Safeguards [May 9, 1997]; see House Rpt.105-095, Individuals with Disabilities Education Act Amendments of 1997, Explanation of the Bill and Committee Views, Title I-Amendments, Procedural Safeguards Section 615 [May 13, 1997]).

        The purpose of the IDEA's sufficiency of notice requirement is grounded in principles of due process and fairness. It ensures that both parties have an understanding of the disputed issues resulting in a more meaningful due process hearing; bringing about a fair resolution to the matter, while preventing unnecessary loss of time, money and other resources spent defending uncontested issues. Proper due process notice allows respondents to have an awareness and understanding of the issues in sufficient time for them to prepare a response. Also, ensuring that both parties have a clear understanding of the subject matter of the complaint focuses the issues of the hearing and allows the parties to more effectively comply with the five day disclosure rule (see 34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[i][3][xii][a]), and to more effectively prepare to present their respective positions to the hearing officer. It in no way limits a hearing officer from using principles of common sense and fairness in determining when to expand the hearing to include new relevant issues, under the proper circumstances, should they arise.

        Under the new state regulations effective May 1, 2004 the hearing officer's duties are clearly defined (see 8 NYCRR 200.5[i]). According to the regulations, one of the express purposes of the prehearing conference is to simplify and/or clarify the issues, and identify evidence to be entered on the record, and the witnesses expected to testify (8 NYCRR 200.5[i][3][xi][a], [c], [d]). In addition, it is the hearing officer's responsibility to limit the scope of the hearing to relevant and nonrepetitious evidence and testimony (8 NYCRR 200.5[i][3][xii][c], [d], [e]), and to, whenever practical, enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties (8 NYCRR 200.5[3][xii][b]). Although a hearing officer may not, under 34 C.F.R. § 300.507(c)(4) unduly delay a parent’s request for a due process hearing because they have failed to fully specify the details of their complaint in their request for a hearing, I see nothing which prevents a hearing officer, either in a pre-hearing conference or on the first day of the hearing, from asking the parent and/or their representative to further identify or specify on the record what parts of the child's program they are dissatisfied with and/or generally the violations they believe the district has committed in order to properly focus the hearing. Indeed, it would appear to be advantageous to both parties in reaching a fair and expeditious resolution of the matter to do so. Focusing the issues that are in dispute and identifying those that are not serves to expedite the hearing process, not delay it.

        In the instant case, petitioner and her advocate acknowledge that their request for a due process hearing came from a standard form used in all their hearing requests, which, for a "description of the problem" simply stated "the district's failure to implement the student's IEP, and disagreement with the program recommended by the CSE dated January 20, 2004, and procedural and substantive non compliance with applicable law" (IHO Ex. 1, Tab D; see Tr. Apr. 8, 2004 pp. 64, 77; see also IHO Ex. 1 Tab A). I find that the general statements in petitioner's letters requesting hearings, as described and as contained in the request herein, insufficient to frame the issues for a respondent to present relevant evidence, or for a hearing officer to determine the relevance of petitioner's and respondent’s evidence (Application of a Child with a Disability, Appeal No. 95-44). Under these circumstances, it is within the hearing officer’s authority to ask petitioner, either at a prehearing conference or at the hearing, to specify what procedural and/or substantive violations he or she is alleging or what specific parts of the child's program they are disputing (Application of a Child with a Disability, Appeal No. 95-44; see Application of a Child with a Disability, Appeal No. 04-018 [pro se parent cured any deficiency in notice by providing detailed factual opening statement]). The parties are obligated to comply with the reasonable directives of the hearing officer (see generally, Application of a Child with a Disability, Appeal No. 04-010; compare Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 04-018). While petitioner is correct in that the ultimate burden of proof lies with the school district to demonstrate that they offered the student an appropriate program under the IDEA (see M.S. v. Bd. of Educ., 231 F.3d at 102), that does not absolve petitioner of his or her duty to first identify what he or she is objecting to as inappropriate and placing it at issue in the first instance. There is no value in keeping a party in the dark and forcing it to prepare for every possible complaint that could be made. Therefore I find that, while a parent need not plead with the same specificity required in a court of law, he or she must plead with sufficient detail so as to fairly put the district on notice of what issues he or she is contesting so that the scope of the hearing is clearly defined for both parties, as well as the hearing officer, so as to enable the hearing to proceed in a fair and expeditious manner.4 In addition, I find that where the pleadings are insufficiently general, as here, it was within the hearing officer's authority, as a reasonable directive, to require petitioner either in a prehearing conference or at the outset of the hearing to further identify her specific allegations concerning the inappropriateness of her child's educational program, and petitioner was obligated to comply with such directives.

        The second issue I must address concerns the circumstances surrounding the procedural history of this appeal. It does not escape my attention that petitioner filed her request for a due process hearing just one month after her husband's request for a due process hearing (on the same child, on essentially the same IEP, with the same advocate) was dismissed for lack of participation in a prehearing process in which the parents and their advocate had been engaged in what can fairly be described as a contentious relationship with the first appointed hearing officer (see IHO Ex. 1, Tab B; Application of a Child with a Disability, Appeal No. 04-010). As noted, on the first day of Hearing 2, respondent raised the issue of the parents' apparent duplicative hearing requests in a motion to dismiss, alleging, inter alia, that petitioner's actions constituted improper "judge shopping" (Tr. Apr. 8, 2004 pp. 5-11; IHO Ex. 1).

       In New York State, hearing officers in IDEA proceedings must be appointed by the board of education in accordance with a very specific rotation selection process prescribed by the Regulations of the Commissioner of Education (see N.Y. Educ. Law § 4404[1]). The regulations require that a list be maintained of eligible hearing officers' names in alphabetical order, and that selection shall be made beginning with the first name appearing after the last impartial hearing officer who served (8 NYCRR 200.2[e][1][ii]). In the event that hearing officer declines or is unreachable after reasonable efforts documented by the district, the district must offer the appointment to the next name on the list, in the same manner, until such appointment is accepted (id.). This process is designed to ensure that selection of hearing officers for any proceeding will be random and unbiased, and prevents one party from unfairly seeking out a specific hearing officer whom he or she feels will be more favorably disposed to their position, a practice widely denounced and commonly referred to as "judge shopping" (see, e.g., Dictograph Prods. v. Sonotone Corp., 230 F.2d 131, 135 [2d Cir. 1956] ["shop(ping) about in the hope of finding a judge more favorably disposed….(is) a sufficient reason for treating the first ruling as conclusive"]).

        Both the Commissioner of Education and the State Review Officer have consistently taken a strong position against improper acts of judge shopping by either school districts or parents ( Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 138, 143, Decision No. 12,246 ["it is important to underscore that my ruling does not imply that petitioners can abuse their right to withdraw their request for an impartial hearing as a means of forum shopping until the school district appoints a hearing officer acceptable to the petitioners"]; Application of a Child with a Disability, Appeal No. 01-037 [petitioner's withdrawal and then refiling of a due process request on the same issues with a different hearing officer results in dismissal of claims]; Application of a Child with a Disability, Appeal No. 00-049 [petitioner's attempt to reargue claims that were withdrawn in a prior hearing results in dismissal of claims]). The State Review Officer has recently stated, "I find that allowing petitioners to pursue their claims…in a new proceeding before a different hearing officer would be to sanction judge shopping and that it is inconsistent with the purpose of providing an inexpensive and expeditious means of reviewing a student's educational program" (Application of a Child with a Disability, Appeal No. 01-037). While the subject of judge shopping more often arises where a petitioner voluntarily withdraws a hearing request and then later refiles (see, e.g. Application of a Child with a Disability, Appeal No. 01-037; Application of a Child with a Disability, Appeal No. 00-049), I see no practical difference when the issue is raised where a party deliberately refuses to participate in a hearing to the point where it cannot proceed, causing it to be dismissed, and then refiles to obtain a different hearing officer; in fact I find the latter behavior, if true, to be even more egregious.

        There are numerous reasons why judge shopping is widely condemned, especially in the context of an IDEA proceeding. First, principles of res judicata and collateral estoppel support the concept that once an issue or claim is dismissed in one proceeding, principles of finality dictate that it may not then be the subject of another proceeding (see generally Chappelle v. Beacon Communications Corp., 84 F.3d 652, 654-55 [2d Cir. 1996]). From a practical standpoint, resolving the same claims in one hearing rather than two promotes the interests of judicial economy in that it avoids the unnecessary duplication of time, expense, witnesses, exhibits, and other resources that may be in short supply. This is especially true in the IDEA context. The due process procedures set forth in the IDEA were created for the purpose of providing an inexpensive and expeditious means of reviewing a student's educational program (Application of a Child with a Disability, Appeal No. 01-037; see M.D. v. Southington Bd. of Educ., 334 F.3d 217, 224 [2d Cir. 2003]). To allow parties to file multiple due process requests on the same school year in an effort to obtain a hearing officer of their choice would not only defeat and undermine the carefully crafted rotation selection process set up by state regulations, but would also unnecessarily bog down school districts in numerous duplicative requests for hearings as parents attempt to get the hearing officer of their choosing appointed. This would increase the cost to school districts and families and would unnecessarily delay the resolution of what constitutes an appropriate program for the student for the school year in question. Moreover, to allow a party to refile a new due process request after a dismissal or withdrawal of their original request would render both the initial hearing officer's decision dismissing the request, and the State Review Officer's decision on appeal affirming the dismissal, without force and effect. On the other hand, if a petitioner's due process request was dismissed and, on appeal, was reversed by the State Review Officer and remanded for a new hearing after petitioner had already refiled, it could create the untenable situation of having two hearings concurrently on the exact same issues, with the possible result of two decisions on the same case with contradictory conclusions. In a situation where a party deliberately refuses to cooperate with a hearing officer in an attempt to have the hearing dismissed so that they could refile and receive a new hearing officer, to condone such actions would be to eliminate incentive for parties to comply with hearing officer's orders and to participate in the process, in fact creating a disincentive to cooperate. As noted, parties must cooperate with the reasonable directives of a hearing officer (Application of a Child with a Disability, Appeal No. 04-010). For all of these reasons, attempts at judge shopping are a misuse and manipulation of the administrative process, as well as a improper use of time, money, and resources more appropriately spent on providing proper services to students with disabilities.

        In the instant case I am troubled by the extremely close proximity of the two hearing requests involving the same parties in privity, same child, same advocate, same school year, and very similar issues. I am also troubled by a comment made by the parent advocate halfway through Hearing 2. When the parent advocate was reminded of the hearing officer's ruling that she must confine her questions to the January 2004 IEP and not ask questions surrounding the June 2003 IEP, since he had ruled those claims were dismissed in Hearing 1, she withdrew her question but replied, "[the student's mother] certainly can issue another hearing, where we can go into the very specifics about the [June] IEP" (Tr. Apr. 29, 2004 p. 92). This statement evinces contemplation of filing yet a third due process request, ostensibly in an attempt to get a third hearing officer to allow petitioner to litigate issues arising from the June 2003 IEP. I note in this case the student's mother and her advocate, as co-directors of an agency that represents numerous parents in similar due process hearings, are, by their own admission, no novices to the impartial hearing process. As petitioner's co-director stated at Hearing 2, either with or without an attorney, "we" [petitioner and her advocate] have worked on "over a hundred impartial hearings" (Tr. Apr. 8, 2004 p. 64); she also states that she has been initiating impartial hearings for at least the last eight years (id.). Indeed, the student's mother conducted some of the cross-examination in the instant hearing herself (see Tr. Apr. 29, 2004 pp. 174-215; Tr. May 20, 2004 pp. 7-21), and I note that the pleadings and papers submitted by petitioner and her advocate show a familiarity with both state and federal regulations in this area of law. While still bearing this in mind, in the instant case I am satisfied that any attempt to improperly manipulate the system by filing a second hearing request solely to receive a different hearing officer, if that was indeed the intent, was cured by the new hearing officer's ruling in Hearing 2 limiting the scope of the hearing to only new issues arising from the subsequent amendments to the IEP. However, I caution petitioner and her advocate that this ruling in no way implies that petitioners can refuse to cooperate with a hearing officer as a means of judge shopping until the district appoints a hearing officer acceptable to them, and I remind them that the proper remedy for such judge shopping is an immediate dismissal of the claim(s) that were the subject of the prior proceeding (see, e.g., Application of a Child with a Disability, Appeal No. 01-037; Application of a Child with a Disability, Appeal No. 00-049; Application of a Child with a Disability, Appeal No. 95-54).

        One final comment. I am concerned by a statement found in both the student's IEPs under the social present levels of performance section written by the student's mother. The IEP states that "He [the student] is angry about the District's view of his mother's work as an advocate and feels like a traitor when he is cooperative at school and finds value in his education there" (Dist. Exs. 33, 34 at 3; Tr. Apr. 27, 2004 p. 111). This same observation was also contained in the school psychologist's psychological evaluation of the student from the prior school year (Dist. Ex. 51 at 1). While encouraging parents to be zealous advocates for their children, I urge all parties to first and foremost to work cooperatively as a team to develop an appropriate program for the child.





Dated: Albany, New York   __________________________
  September 30, 2004   PAUL F. KELLY


1 (see Moccio v. N.Y.S. Office of Ct. Admin., 95 F.3d 195, 199-200 [2d Cir. 1996] [distinguishing res judicata and collateral estoppel]; see also Perry v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003] [The doctrine of res judicata "precludes parties from litigating issues that were or could have been raised in a prior proceeding"]).

2 Unless the decision otherwise specifies, an involuntary dismissal based on the failure of a party to prosecute or to comply with any order during a proceeding operates as an adjudication upon the merits (see Fed. R. Civ. P. 41[b]; but cf. N.Y. C.P.L.R. 3216[a]).

3 Both the Commissioner of Education and the State Review Officer have taken a strong stand in the past against the filing of frivolous IDEA claims (see, e.g., Application of a Child with a Disability, Appeal No. 96-02; Appeal of a Student with a Disability, 35 Ed. Dept. Rep. 42). This is true in other jurisdictions as well (see, e.g., Ingram Indp. Sch. Dist., 104 LRP 39593 [SEA TX 2004]; Oceanview Elem. Sch., 103 LRP 48680 [SEA CA 2004]).

4 I note that currently both the House and the Senate versions of the reauthorization of the IDEA contain a new provision that states that a due process hearing may not occur unless and until the requesting party has filed a complaint that meets the notice requirements of the IDEA (H.R. 1350, Improving Education Results for Children with Disabilities Act of 2003, § 205[b][7][B] [Passed by the House, Referred to Senate] [May. 1, 2003]; H.R. 1350, Individuals with Disabilities Education Improvement Act of 2004, § 615[b][7][B] [Passed by Senate] [May 21, 2004]). The Senate Committee Report reasoned that the current 34 C.F.R. 300.507(c)(4) as it exists [stating that a hearing may not be denied or delayed if a due process request fails to meet the requirements of the statute] has a potentially nullifying effect on the statute's fair notice provisions (see S. Rep. No. 108-185, Individuals with Disabilities Education Act, Part V: Explanation of Bill and Committee Views, Title I- Amendments, Notice of Complaint [Nov. 3, 2003]). The Senate Bill goes further and proposes adding an additional provision to the IDEA that the House Bill did not that would allow either party, within 20 days of receiving a due process request, to ask the hearing officer for a more definite statement of the complaint (H.R. 1350, Individuals with Disabilities Education Improvement Act of 2004, § 615[c][2] [Passed by Senate] [May 21, 2004]). If the hearing officer rules that the notice of the complaint does not meet the sufficiency requirements, then the party submitting the complaint may ask to amend it; and the applicable time frames for conducting and completing the hearing begin to run 15 days after receipt of the amended complaint (id.). The Senate Committee Report notes "[w]hile the committee agrees that a party’s right to a due process hearing should not be delayed for no reason, a party’s failure to provide notice of their complaint to the other party is reasonable grounds for delaying a hearing until the other party is reasonably apprised of the issues underlying the complaint" (S. Rep. No. 108-185, Individuals with Disabilities Education Act, Part V: Explanation of Bill and Committee Views, Title I- Amendments, Notice of Complaint [Nov. 3, 2003]).