04-099

            Petitioners appeal from the decision of an impartial hearing officer which dismissed their claims with respect to educational programs and services for their son for the 2003-04 and 2004-05 school years.  The impartial hearing officer specifically excluded from the dismissal petitioners' amended request for assistive technology training and for a functional behavioral assessment of their son, and granted those portions of the hearing request.  The impartial hearing officer’s decision also determined that the pendency placement was that which was agreed to pursuant to an on the record settlement agreement.  The appeal must be dismissed. 

            At the outset, a procedural matter must be addressed.  Respondent asks that I dismiss the petition because it is not verified as required by the Regulations of the Commissioner of Education (see 8 NYCRR 279.7) (Answer ¶¶ 37-38). Notwithstanding respondent’s contention, the petition received by the Office of State Review was in fact verified by the child’s mother, who is one of the petitioners herein, and the verification is stamped as having been received by the respondent’s attorney.  As such, I will not dismiss the petition on this ground. 

            I also note that sworn testimony from witnesses was not presented and documents were not formally introduced into evidence at the hearing (see Application of a Child with a Disability, Appeal No. 03-044).  Rather, information was obtained via on the record discussions between the representatives for the parties, the parties and the impartial hearing officer, along with submissions attendant to those discussions.  Therefore, I have relied upon the exhibits attached to the impartial hearing officer’s decision and on exhibits submitted, without objection, with this appeal.

             Petitioners' son was 5 years old at the time that the hearing (Hearing II), which is the subject of this appeal, was scheduled to take place (Dist. Exs. 4, 5).  He was previously classified as a preschool student with a disability (IHO Decision, p. 3).  During the 2003-04 school year, he attended the Fred Keller School, a special education preschool program (id.).  On May 24, 2004, the Committee on Preschool Special Education (CPSE) and Committee on Special Education (CSE) met to formulate recommendations for the summer of 2004 and for the 2004-05 school year (id.;see also Dist. Ex. 5).  Prior to the May 24, 2004 CPSE/CSE meeting, the student was being increasingly educated at home, presumably pursuant to a January 7, 2004 individualized education program (IEP), due to petitioners’ concerns that her son was not progressing in his preschool environment (Dist. Ex. 5). 

             The May 24, 2004 CSE had before it a neuropsychological evaluation and a speech and language evaluation, both of which evaluations were procured by petitioners on their own accord and at their own expense, as well as progress reports from the child’s preschool providers (Dist. Exs. 4, 5).  The neuropsychological evaluation, which is not contained in the record, apparently indicated that the child met the criteria for a diagnosis of autism (id.).  He was reportedly functioning in the extremely low range, having scored below the first percentile in almost all areas of testing (Dist. Ex. 5).  The neuropsychological evaluator recommended that the child receive a 30 hour at home applied behavioral assessment (ABA) program as well as 3-6 hours of weekly integration with peers and increased speech and occupational services (id.).  

              An IEP was devised pursuant to the May 24, 2004 CSE meeting which is also not contained in the record (see Dist. Exs. 4, 5).  The CSE at that time recommended that the student be classified as a child with autism, and that he be placed in an 8:1:2 program at the Waverly School, a public school located within the district (IHO Decision, p. 3; see also Dist. Ex. 5).  The IEP also provided for the student to receive the following services: a 1:1 teaching assistant; speech and language therapy five times per week for 30 minutes; occupational therapy three times per week for 30 minutes; and three hours of ABA therapy at home per week (Dist. Ex. 5). 

              On July 1, 2004, petitioners, through their then attorney, filed a request for a hearing (Hearing I) (Dist. Ex. 5).  The Hearing I request indicated that petitioners wished to challenge the IEP for the 2004-05 school year that was developed at the May 24, 2004 CSE meeting.  The request raised numerous procedural and substantive violations with respect to that IEP.  Among them, it was alleged that the goals and objectives were inappropriate, that the district failed to implement the recommendations of the neuropsychological evaluation and that the district failed to formulate a functional behavioral assessment.  It was also asserted that the parents should be entitled to attorneys fees in the event that the parent “substantially prevails,” and that the pendency placement should be whatever was set forth in the January 7, 2004 IEP.  It was alleged, moreover, that the parents had never received a copy of the IEP and that they retained the right to assert further allegations upon receipt of the IEP. 

               With regard to the July 1, 2004, hearing request, a prehearing teleconference took place on July 27, 2004 before an impartial hearing officer (Hearing I) (Dist. Ex. 6; IHO Ex. I). At that time, then counsel for the petitioners withdrew any claims with respect to programming for the summer of 2004  (id.; see also IHO Decision, p. 4).  The hearing was scheduled to commence on August 11, 2004.  In attendance on that day were the parents, the district’s assistant superintendent of pupil personnel services and counsel for both sides (IHO Decision, p. 4; IHO Ex. II, pp. 3-4).  Prior to the commencement of the hearing, however, the impartial hearing officer announced on the record that “the parties have been negotiating diligently since this morning” and that they had reached a settlement (IHO Decision, p. 4; IHO Ex. II, p. 4).  The terms of the settlement agreement were set forth on the record and need not be discussed herein.  The parents at that time agreed to waive attorneys fees (IHO Ex. II, p. 11).  It was agreed to by all parties that the settlement agreement would constitute the pendency placement (IHO Ex. II, p. 15).

              The parents were in attendance as the terms of the settlement agreement were read into the record, after which time they were each individually asked a series of questions by the impartial hearing officer as to whether they understood and agreed with the terms (IHO Decision, p. 6; IHO Ex. II, pp. 20-22).  Petitioners were also each asked by the impartial hearing officer whether they had a “full opportunity to confer with counsel” regarding the terms of the settlement agreement and whether they entered into the agreement “knowingly, voluntarily and without coercion by any party or individual” (id.).  Both petitioners answered each of these questions in the affirmative.  Finally, petitioners were each asked whether they were taking any medication or other substance which would impair their ability to enter into an agreement, to which they each responded in the negative (id.).  The impartial hearing officer therefore “so ordered” the settlement agreement (IHO Ex. II, p. 24). 

              Shortly after the August 11, 2004 settlement, the parents apparently contacted the impartial hearing officer by telephone and facsimile, expressing discontent with the agreement (seeLetter to Impartial Hearing Officer dated August 13, 2004, attached to Petition).  The impartial hearing officer wrote the parents a letter indicating that she no longer had jurisdiction over the matter and was prohibited from rendering legal advice, but that the parents were encouraged to obtain new counsel to advise them of their legal rights (id.). 

              By letter dated September 1, 2004, petitioners by their lay advocate requested another hearing (Hearing II) (Dist. Ex. 4).  The hearing request raised a variety of issues, including the following:  impropriety of classification as a student with autism; impropriety of program, placement and services with respect to the 2003-04 school year; impropriety of the services provided during the summer of 2004; failure to reimburse petitioners for independent neuropsychological and speech and language evaluations; impropriety of program, placement and services with respect to 2004-05 school year; failure to apprise petitioners of their procedural rights; impropriety of goals and objectives with respect to the 2004-05 school year; and the impropriety of the settlement agreement entered into by the parties on August 11, 2004 (Dist. Ex. 4).  Among the remedies requested, petitioners asked that the pendency placement be considered the child’s home; that the student be fully evaluated; and that the CSE reconvene in order to formulate appropriate goals and objectives (id.).  Petitioners also requested that they be reimbursed for the evaluations they procured and for attorneys fees spent in connection with the prior hearing request (id.).

              On September 16, 2004, a prehearing conference convened before a second impartial hearing officer (Hearing II) (Dist. Ex. 2).  On that date, the district moved to dismiss the hearing on the grounds of res judicata, arguing that the issues with respect to the 2004-05 school year had been addressed in the prior hearing and that whatever had not been addressed was barred (Dist. Ex. 2, pp. 7-9).  Petitioners, through their lay advocate, argued that they did not knowingly enter into the settlement agreement, that their attorney did not apprise them of their rights, that the initial hearing request was general and did not raise the issues raised in the subsequent hearing, and that the decision of the prior impartial hearing officer was not final (Dist. Ex. 2, pp. 9, 12, 15).  The impartial hearing officer (Hearing II) requested copies of the transcripts of the prior July 27, 2004 preconference hearing and August 11, 2004 settlement agreement in order to ascertain whether she could hear the matter (Dist. Ex. 2, pp. 13, 14, 21, 22). 

              On October 5, 2004, the conference reconvened (Dist. Ex. 3).  At that time, petitioners submitted an amended hearing request, setting forth additional issues with respect to the 2004-05 school year, including a request for extended day services, for parent training with respect to an assistive technology device (PECS), that a functional behavioral assessment be completed for their son, and that further evaluations be completed in order to formulate goals and objectives (IHO Decision, pp. 7-8; Dist. Ex. 3 at pp. 7, 8).  At that time, the impartial hearing officer (Hearing II) advised the parties that based upon her review of the transcripts of the prior proceedings, she did not believe that she could not entertain the September 1, 2004 hearing request due to the stipulation entered into by the parties on August 11, 2004 (Dist. Ex. 3, pp. 5, 6).  She stated her intention to write a decision stating as such, and was going to set the matter down for a hearing with respect to those items in the amended hearing request pertaining to assistive technology training and a functional behavioral assessment (Dist. Ex. 3, p. 11).  It appears, however, that the district did not oppose those requests (IHO Decision, p. 13). 

               In a well reasoned decision with which I agree, the impartial hearing officer (Hearing II) dismissed the claims raised by petitioners in Hearing II in all respects except for the aspects pertaining to assistive technology training and a functional behavioral assessment, which the district did not oppose (IHO Decision, p. 13).  Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside (Application of a Child with a Disability, Appeal No. 03-044, Application of a Child with a Disability, Appeal No. 03-071). That is equally true with respect to a stipulation in an administrative proceeding such as this (Application of a Child with a Disability, Appeal No. 03-044, Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Disability, Appeal No. 97-46; see also Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984]).  It has been noted that an appeal to a State Review Officer may not be used as a way to re-litigate a matter that the parties have previously resolved or to consider in the first instance additional claims that may arise as a settlement agreement is implemented (Application of a Child with a Disability, Appeal No. 03-044; Application of a Child with a Disability, Appeal No. 03-071).  Similarly, a subsequent hearing may not be used as a way to re-litigate matters previously resolved at a prior hearing (Application of a Child with a Disability, Appeal No. 04-061). 

              A stipulation may be vacated for cause including fraud, collusion, mistake, and accident (Application of a Child with a Disability, Appeal No. 97-46; see also Matter of Frutiger, 29 N.Y.2d 143, 150 [1971]).   Assuming, arguendo, that the proper mechanism in which to assert those claims with respect to a so ordered stipulation was a second hearing request rather than via other remedies, the impartial hearing officer (Hearing II) considered those allegations and found them to be unwarranted in this case.  I agree.  To the contrary, the stipulation was so ordered after extensive questioning of both petitioners by the impartial hearing officer (Hearing I) as to whether they had an opportunity to consult with counsel about the stipulation, whether they understood and agreed with the terms of the stipulation and whether they entered into it voluntarily (see IHO Ex. II, pp. 20-22). 

              In light of the stipulation, the impartial hearing officer correctly dismissed petitioners’ claims with respect to alleged procedural and substantive violations with respect to the May 2004 IEP developed for the 2004-05 school year.  Additionally, the impartial hearing officer correctly held that the pendency placement was that which was agreed to in the course of the August 11, 2004 stipulation.  Federal and New York State law specifies that students are to remain in their “then current educational placement” during the course of proceedings to challenge placement (20 U.S.C. §1415(j); N.Y. Educ. Law §4404(4).  The U.S. Department of Education has stated that a child's then current placement is "…generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, 211 IDELR 481; see Application of a Child with a Disability, Appeal No. 04-064, citing Mackey v. Bd. of Educ., 386 F. 3d 158, 160 [2d Cir.  2004]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Drinker, 78 F.3d at 867 [last functioning IEP]; Gregory K. v. Longview Sch. Dist., 811 F.2d 1307 [9th Cir. 1987]). Where there is a subsequent agreement between the parties during the proceedings to change the placement, it need not be reduced to a new IEP, and it can supercede the prior unchallenged IEP as the then current placement (see Application of a Child with a Disability, Appeal No. 04-064, citing Bd. of Educ. v. Schutz, 137 F. Supp.2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1189 n 3 [S.D.N.Y. 1996]).  In this case, it was expressly agreed that the stipulation would constitute the pendency placement (see IHO Ex. II, p. 15). 

             With respect to petitioners’ claims for reimbursement of the independent evaluations, I find that these too were properly dismissed. The doctrine of res judicata “precludes parties from litigating issues that were or could have been raised in a prior proceeding” (Application of a Child with a Disability, Appeal No. 04-061, quoting Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]).  The claims for reimbursement for independent evaluations should have been raised with respect to Hearing I. A main contention in that hearing was that the May 2004 CSE failed to heed the recommendations of the neuropsychologist’s evaluation.  Indeed, the request for a hearing in Hearing I specifically stated that the parents were requesting “recovery of all related fees and disbursements, including but not limited to expert witness fees and any evaluations” (emphasis added) (Dist. Ex. 4).  I decline to look behind the terms of the settlement to issues that are not contained therein.  Petitioners cannot now, in a subsequent hearing, be heard to raise the issue of reimbursement for these evaluations. 

             Similarly, with respect to alternate programming for the summer of 2004 and attorneys fees, these claims were withdrawn in Hearing I.  As principles of res judicata and collateralestoppel 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 (Application of a Child with a Disability, Appeal No. 04-061, citing Chappelle v. Beacon Communications Corp., 84 F.3d 652, 654-55 [2d Cir. 1996].  The impartial hearing officer (Hearing II) correctly found that since petitioners withdrew these claims in Hearing I, they were not able to re-assert them in Hearing II.   

            It is noted that the impartial hearing officer (Hearing II) ordered the district to conduct a functional behavioral assessment and to convene a CSE in order to review the results of that evaluation and formulate, if appropriate, a behavioral modification plan for the child.  The district was also ordered to provide training to the parents to enable them to use the PECS system.  The district apparently did not dispute this at the hearing and has not appealed the impartial hearing officer’s decision.  

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

THE APPEAL IS DISMISSED.