The State Education Department
State Review Officer

No. 05-059

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 Board of Education of the Springville-Griffith Institute Central School District

 

Appearances:
Hodgson Russ LLP, attorney for respondent, Jerome D. Schad, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which dismissed his request for a due process hearing based upon the doctrine of res judicata.The appeal must be dismissed.

At the time of the hearing, the student was 11 years old and classified as a student with autism (Dec. 9, 2004 Tr. pp. 2, 108).The studentís eligibility for special education programs and classification as a student with autism are not in dispute in this appeal (see 8 NYCRR 200.1[zz][8]; see Dist. Ex. 27[n]).The student has been the subject of five previous appeals (Application of a Child with a Disability, Appeal No. 04-105; Application of the Bd. of Educ., Appeal No. 04-085; Application of a Child with a Disability, Appeal No. 04-011; Application of a Child with a Disability, Appeal No. 03-050; Application of the Bd. of Educ., Appeal No. 02-070).Familiarity with the facts in those decisions will be assumed.

The present appeal revolves around the studentís annual review on August 17, 2004 and the individualized education program (IEP) developed on that date by the Committee on Special Education (CSE) for the studentís 2004-05 school year.Respondentís CSE attempted to hold the annual review on numerous occasions throughout 2004:March 12, 2004 (cancelled by mother Mar. 10, 2004); May 27, 2004 (cancelled by mother May 26, 2004); June 17, 2004 (cancelled by mother June 17, 2004); June 25, 2004 (cancelled by mother); July 22, 2004 (cancelled due to hearing); and August 23, 2004 (cancelled by parent) (Dist. Ex. 9).Respondentís CSE provided notice of each attempt to schedule the annual review via letters to both the studentís mother and father, who live at separate residences (Dist. Exs. 11, 12, 13, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26).Respondent audiotaped the CSEís attempt to go forward with the annual review on June 25, 2004; the audiocassette documented the continued efforts during that telephone conversation to convince the studentís mother to go forward with the meeting (Dist. Ex. 73).The studentís mother was hostile and refused to proceed with the meeting because she demanded that the school physician attend the annual review.This was the first request by the studentís mother to have the school physician present (id.; Dist. Exs. 16[a], [b]).

Thereafter, respondentís CSE attempted to reschedule the annual review with the school physician present.The school physician was available to participate in the annual review on August 23, 2004 (Dist. Ex. 16[c]).The studentís mother, however, notified the CSE that neither she nor her husband could attend on that date (Dist. Ex. 16[d]).The CSE then notified the studentís mother and father that the school physician, as well as a full CSE team, could meet for the annual review on August 17, 2004 (Dist. Exs. 11, 12, 43).By letter dated August 16, 2004, the studentís mother prepared a letter to the school physician stating, in part, the following:

[T]his letter is to serve as written notice to you, that if you attend my sons (sic) CSE meeting on August 17, 2004 and participate as a mandated member of the CSE, in a meeting that excludes our parental participation in the creation and formulation of his IEP, that constitutes a denial of free appropriate public education, you will be held liable by us for knowingly and willingly violating our rights as [the studentís] parents and his rights as a student with a disability. . . . Once determined that our rights were violated and the IEP is annulled, you will be held fully accountable. . . . If you knowingly and willingly attend and participate in [the studentís] CSE meeting, we will have no other option, then to proceed with administrative, criminal, and civil procedures against you and or your practice.I strongly encourage you to not participate in tomorrows (sic) CSE meeting that we are unable to attend and have asked to be rescheduled.

(Dist. Ex. 41).The studentís mother also advised the CSE, by letter dated August 16, 2004, that neither she nor her husband were available on August 17, 2004 and informed the CSE Chairperson that ďif you proceed with [the studentís] annual review without our attendance, in direct violation of our parental rights, we will hold you personally liable as well as the district.This is not a threat [Chairperson], it is a promise that your blatant defiance of state and federal law will no longer be toleratedĒ (Dist. Ex. 42 at p. 4).Unable to schedule another date to convene with the school physician present and with a full CSE team prior to the start of the 2004-05 school year, the CSE went forward on August 17, 2004 and developed the studentís IEP (Dist. Exs. 3, 9, 10, 43).1The August 17, 2004 IEP recommended special education programs and services for the studentís 2004-05 school year (Dist. Ex. 3).

By letter dated August 31, 2004, the studentís mother, represented by an advocacy group,2 served a request for a due process hearing upon respondent (Dist. Ex. 27[l]).Respondent submitted the August 31, 2004 request into evidence in the present case.The request set forth the following issues for hearing:ďthe parentís disagreement with the CSEís recommendations made on August 17, 2004 regarding program, placement, evaluations, and procedural and substantive non-compliance with applicable law.The district denied the parents their rights in the creation and formulation of their childís IEPĒ (id.).The August 31, 2004 letter suggested nullification of the IEP as one possible remedy, due toďprocedural and substantive non compliance (sic) with applicable lawĒ (Dist. Ex. 27[l] at p. 2).

In a decision dated October 23, 2004, an impartial hearing officer dismissed the motherís August 31, 2004 request for a due process hearing due to ďnon-cooperation of the parentís advocate in failing to advise as to her availability for a prehearing conferenceĒ.The studentís mother appealed the decision of the impartial hearing officer to a State Review Officer, resulting in a decision being rendered on January 12, 2005 (Application of a Child with a Disability, Appeal No. 04-105).

The decision in Application of a Child with a Disability, Appeal No. 04-105, dismissed ďpetitionerís request for a hearing relating to her objections to the August 17, 2004 recommendations by respondentís Committee on Special Education (CSE) for her son for the 2004-05 school year . . . with prejudiceĒ (Dist. Ex. 78 at p. 3)(emphasis added).In Appeal No. 04-105, the studentís mother was the petitioner and was represented by the same advocacy group providing representation in the instant appeal (Dist. Ex. 27[l]).The decision noted that the studentís mother ďobjected to the recommendations made at an August 17, 2004 CSE meeting and requested an impartial hearingĒ and further, that the studentís mother ďasserted disagreement with the CSEís recommendations regarding program, placement and evaluations for her son for the 2004-05 school yearĒ (see Dist. Ex. 78 at p. 1).

In the present appeal, the studentís father is the petitioner and is represented by the same advocacy group.Petitioner served a request for a due process hearing, dated October 27, 2004, upon respondent on November 5, 2004 (Dist. Ex. 27[n]; IHO Decision, p. 3).It is important to point out that petitionerís request for a due process hearing followed soon after the impartial hearing officerís October 23, 2004 decision which dismissed the motherís August 31, 2004 request for a due process hearing (compare Dist. Ex. 27[m] with Dist. Ex. 27[n]).3As alleged in the motherís August 31, 2004 request, petitionerís October 27, 2004 request for a due process hearing indicated that the advocacy group represented petitioner in the matter and requested a hearing ďregarding but not limited toĒ the following issues:

the districtís failure to implement the studentís 2003-2004 IEP as pendency, and regarding the parentís disagreement with the CSEís recommended program, placement, evaluations, and procedural and substantive non-compliance with applicable law including but not limited to the districtís failure to provide notice of the CSE meeting to the parent and the student . . . , the districtís failure to provide prior notice to the parent . . . , the districtís failure to schedule a CSE meeting at a mutually agreed time, and place, and in a location in accordance [with applicable state regulations], the districtís failure to conduct a CSE meeting with a properly composed CSE membership . . . , the Board of Educations (sic) failure to review the studentís IEP . . . , the districts (sic) failure to provide appropriate transitional services . . . , the districtís failure to develop an appropriate IEP . . . , the district (sic) failure to included (sic) parent training and counseling . . . , and the district (sic) failure to provide a special education teacher with a background in teaching students with Autism . . . .

(Dist. Ex. 27[n] at pp. 1-2)(internal citations omitted).

Petitionerís request, similar to the motherís August 31, 2004 request, suggested nullification of the studentís IEP, dated August 17, 2004, as one possible remedy, due toďprocedural and substantive non compliance (sic) with applicable lawĒ (Dist. Ex. 27[n] at p. 2).The notice also requested ďpendency placement while these proceeding (sic) are ongoing which is full implementation of [the studentís] 2003-2004 IEPĒ (id.).

The impartial hearing occurred over several months:December 9 and 16, 2004;4 February 17 and 18, 2005; and March 17, 18, and 29, 2005.In addition to 15 witnesses, the impartial hearing officer received more than 100 documents into evidence (IHO Decision, pp. 5-7, 34-46).Two advocates from the advocacy group representing petitioner, one being the studentís mother/petitionerís wife, presented petitionerís case (Dec. 9, 2004 Tr. p. 2).Petitioner did not testify, nor did petitioner attend the impartial hearings, with the exception of a portion of the impartial hearing conducted on December 9, 2004 (Dec. 9, 2004 Tr. pp. 127-129; IHO Decision, pp. 18-19).The studentís mother testified on behalf of petitioner, cross-examined witnesses, presented evidence, and conducted direct examination of witnesses.

Following the conclusion of testimony on March 29, 2005, petitioner and respondent submitted post-hearing briefs to the impartial hearing officer (IHO Decision, pp. 7-8).The impartial hearing officer rendered his decision on May 12, 2005, which is the subject of the present appeal.The impartial hearing officer concluded that the State Review Officerís decision in Application of a Child with a Disability, Appeal No. 04-105, barred petitionerís October 27, 2004 request for a due process hearing based upon the doctrine of res judicata (IHO Decision, pp. 13-19).The impartial hearing officer determined that petitionerís October 27, 2004 request for a due process hearing raised the same issues and requested the same relief as set forth in the motherís August 31, 2004 request for a due process hearing.The impartial hearing officer explained in his decision that if he proceeded ďto review the request of the father now before me, I would, in clear effect, be simply providing a hearing relating to the motherís objections to the August 17, 2004 recommendations made by Districtís Committee on Special Educationóthe very thing that the Office of State Review has ruled is to be denied herĒ (id.).

According to the impartial hearing officer, ď[p]etitionerís (motherís) request was identical to fatherís requestĒ and he considered the second filing by the father as simply a refiling of the original request(IHO Decision, p. 18).In addition, the impartial hearing officer noted that ďthe hearing before me was, as the District has pointed out, in every way a rehearing of the motherís request, with the Studentís father either present but uninvolved in the proceedings or not present at allĒ(IHO Decision, pp. 18-19).5

On appeal, petitioner contends that the impartial hearing officer erred in dismissing his request for a due process hearing, dated October 27, 2004, based upon the doctrine of res judicata.6

Respondent argues that due to the existence of ďprivityĒ between the studentís mother and father, the studentís parents do not have ďthe right to commence separate due process hearing[s] alleging the same claims,Ē and, therefore, the fatherís request for a due process hearing should be barred by res judicata.Respondent submits that the impartial hearing officer correctly dismissed petitionerís October 27, 2004 request for a due process hearing. ††I agree, and for the reasons set forth below, petitionerís appeal is dismissed.

The doctrine of res judicata Ďprecludes parties from litigating issues ďthat were or could have been raisedĒ in a prior proceedingí (Perez v. Danbury Hosp., 347 F.3d 419 [2d Cir. 2003]; Application of a Child with a Disability, Appeal No. 04-061, fn. 1).ĎĒ[T]he principle of res judicata [is] that Ďonce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedyí. . . . A dismissal Ďwith prejudiceí generally signifies that the court intended to dismiss the action Ďon the merits,í that is, to bring the action to a final conclusion against the plaintiffĒí (Aard-Vark Agency, Ltd. v. Prager, 8 A.D.3d 508, 509 [3rd Depít, 2004][citing Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375, 380 [1999]])(internal citations omitted).

A thorough review of the record supports the impartial hearing officerís determination that petitionerís request for a due process hearing was an attempt to relitigate the motherís request.In addition to the striking similarities between petitionerís request for a due process hearing, dated October 27, 2004, and the motherís request, dated August 31, 2004, the studentís mother testified that ď[t]his is now the third attempt to have the substance of the 2004-2005 IEP reviewed by an impartial hearing officer.You are now the third hearing officerófourth for the same yearĒ (Dec. 9, 2004 Tr. p. 24).While it is true that petitionerís request for a due process hearing included the allegation that respondent failed to implement the studentís pendency placement (the studentís 2003-04 IEP), the impartial hearing officer decided that issue in his January 6, 2005 decision, and that determination has not been appealed.Therefore, the remaining issues in petitionerís request for a due process hearing relate to procedural and substantive challenges to the August 17, 2004 IEP, which were the identical issues raised by the studentís mother in her request for a due process hearing by letter dated August 31, 2004 (compare Dist. Ex. 27[l] with Dist. Ex. 27[n]).

Although in his petition petitioner attempts to create distinctions between his request for a due process hearing and the motherís previous request for a due process hearing, these amount to distinctions without a difference and are unpersuasive.Based upon the particular facts of this appeal, petitionerís argument that each of the parents may pursue separate due process hearings regarding essentially identical claims pertaining to their son is equally unpersuasive.The principle of res judicata precludes petitionerís attempt here to relitigate identical claims or issues that have already been brought to a final conclusion. 

I have considered petitionerís remaining contentions and I find them to be without merit.

 ††††††††††† THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York
July 29, 2005

 

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

 

 

 

 1A school district may, under certain circumstances, conduct a CSE meeting in the absence of a studentís parent[s].A CSE is required to include parent members (8 NYCRR 200.3[c][2]). However, a CSE may proceed without a parent or guardian in attendance and the CSE may make decisions in the parent's or guardianís absence if a school district is unable to convince parents or a guardian that they should attend so long as the school maintains a detailed record of its attempts to secure participation (8 NYCRR 200.5[d][3]&[4]; Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052). A school districtís obligation to offer a FAPE is an affirmative duty (Applications of a Child with a Disability and the Bd. of Educ., Appeal Nos. 04-050 and 04-052).

2 The studentís mother is co-executive director of the advocacy group representing petitioner, the studentís father, in the present appeal (see Dist. Ex. 27[n]).

3 It is equally important to point out that in Application of a Child with a Disability, Appeal No. 04-061, I strongly cautioned and admonished the studentís mother and advocate regarding the ďextremely close proximity of the two hearing requests involving the same parties in privity, same child, same advocate, same school year, and very similar issuesĒ (Application of a Child with a Disability, Appeal No. 04-061).While Appeal No. 04-061 involved a different child than in the present appeal, the procedural history leading up to Appeal No. 04-061 is virtually identical to the procedural history leading up to the present appeal (compare Application of a Child with a Disability, Appeal No. 04-061, with Application of a Child with a Disability, Appeal No. 05-059).

4 At the request of the impartial hearing officer, the December hearing dates addressed whether respondent was providing the ď[s]tudent with his mandated pendency program,Ē which was the special education programs and services set forth in the studentís 2003-04 IEP, dated June 24, 2003 (IHO Decision, p. 4; Dist. Ex. 39;Dec. 9, 2004 Tr. pp. 35, 38).The impartial hearing officer rendered his determination solely on this issue by decision dated January 6, 2005 (IHO Decision, pp. 4-5).The impartial hearing officer noted in his decision that no further evidence or testimony after the December hearing dates required him to revisit his January 6, 2005 determination, and, therefore, such decision constituted his final decision on that matter (IHO Decision, p. 5).It should be noted that neither party has appealed the January 6, 2005 decision, and, therefore, the issue of whether respondent implemented the studentís 2003-04 IEP as his pendency placement is not currently before me and such determination is final and not subject to review (34 C.F.R. ß300.510[a]; 8 NYCRR 200.5[i][4][v]; Application of a Child with a Disability, Appeal No. 04-015; Application of a Child with a Disability, Appeal No. 02-073; Application of a Child with a Disability, Appeal No. 01-053).

5The impartial hearing officer further noted in his May 12, 2005 decision that the studentís mother and father utilized the same tactics to challenge the studentís 2003-04 IEP, that is, the studentís father requested a due process hearing on December 12, 2003 regarding the appropriateness of the IEP (IHO Decision, pp. 13-14).The fatherís request was subsequently dismissed because the ďparentís conduct impeded the Due Process proceeding,Ē and that dismissal was upheld by a State Review Officer (IHO Decision, p. 13).The studentís mother then requested a due process hearing on June 16, 2004ďalleging the same deficits in the 2003-04 IEP as had been alleged in the fatherís Request for HearingĒ (id.; Application of the Bd. of Educ., Appeal No. 04-085).

6By letter dated December 30, 2004, respondent initiated a due process proceeding against the studentís parents to override the parentsí refusal to consent for re-evaluations of their child (Dist. Ex. 75).Respondentís due process proceeding was consolidated with petitionerís due process proceeding in early 2005 (IHO Ex. III, pp. 1-8).The impartial hearing officerís May 12, 2005 decision addressed respondentís December 30, 2004 request for a due process hearing (IHO Decision, pp. 19-33).Neither party has appealed the impartial hearing officerís determination that directed respondent to conduct a functional behavioral assessment (FBA) and develop a behavioral intervention plan (BIP), if necessary, based upon the outcome of the FBA (IHO Decision, p. 32).Therefore, those portions of the decision are final and not subject to review (34 C.F.R. ß300.510[a]; 8 NYCRR 200.5[i][4][v]; Application of a Child with a Disability, Appeal No. 04-015; Application of a Child with a Disability, Appeal No. 02-073; Application of a Child with a Disability, Appeal No. 01-053).