05-056

            Petitioner appeals from the decision of an impartial hearing officer which granted respondent's motion to dismiss petitioner’s request for an impartial hearing.  The appeal must be dismissed.

            The instant appeal involves an April 29, 2005 impartial hearing officer’s decision pertaining to tuition reimbursement for the 2004-05 school year. A discussion of the procedural history is necessary. 

             By letter dated September 7, 2004 petitioner, represented by her current counsel, requested an impartial hearing (Hearing 1) to obtain reimbursement for tuition and related expenses for the 2004-05 school year for her son, who was attending the Kildonan School (Pet. Ex. 1). In the course of presiding at Hearing 1, the impartial hearing officer issued a ruling on October 6, 2004 denying petitioner’s application to withdraw her impartial hearing request, and gave petitioner approximately two months’ time to again retain counsel after her current counsel apparently withdrew from representing her after initially appearing at a pre-hearing conference (Dist. Ex. A).  Despite petitioner’s assertion that she was unable to secure counsel, Hearing 1 went forward in December 2004, with petitioner in absentia, resulting in a decision dated January 24, 2005 which denied petitioner’s request for tuition reimbursement for the 2004-05 school year (id.).  Hearing 1 also resulted in a ruling on December 6, 2004, granting respondent’s application that the impartial hearing officer retain jurisdiction over any subsequent hearing request by petitioner raising issues pertaining to the 2004-05 school year (Answer Ex. E).

             Petitioner asserts that on January 18, 2005 she was able to obtain representation again by her current counsel (Pet. ¶ 18).  Less than a month after the January 24, 2005 Hearing 1 decision, petitioner, by letter dated February 18, 2005, requested another impartial hearing (Hearing 2) to address the same issues raised in her September 7, 2004 impartial hearing (Hearing 1) request (Answer Ex. B).¹

             Although the record is not clear as to exactly when, subsequent to the February 18, 2005 request for Hearing 2, respondent referred the second impartial hearing request to the same impartial hearing officer who presided over Hearing 1 (Pet. ¶ 21). On or about February 24, 2005 respondent made a motion to dismiss petitioner’s request for Hearing 2 (Dist. Memo. of Law Ex. 1). By letter to the impartial hearing officer dated March 8, 2005, petitioner’s counsel asserted that the impartial hearing officer had not been properly appointed and did not have jurisdiction to consider respondent’s motion (Dist. Memo. of Law Ex. 3).

            On April 29, 2005 the impartial hearing officer issued his decision, granting respondent’s motion to dismiss petitioner’s request for Hearing 2. In his decision he concluded that 1) petitioner was requesting a second hearing “for the exact same subject that [he] had held a hearing and rendered a decision on,” and that 2) bringing the hearing twice was “an abuse of the administrative hearing process.”

           On May 4, 2005 in Application of a Child with a Disability, Appeal No. 05-034, petitioner’s appeal of the January 24, 2005 Hearing 1 decision was dismissed because the petition for review was not commenced in accordance with the timelines required by the Regulations of the Commissioner (8 NYCRR 279.2[b], 8 NYCRR 279.13).

           The two issues for determination upon review are 1) whether, under the circumstances of this case, the impartial hearing officer had jurisdiction to issue his April 29, 2005 decision, and 2) whether he was correct in dismissing petitioner’s February 18, 2005 hearing request. I find in the affirmative.

            Education Law § 4404(1) provides in relevant part that an impartial hearing officer is appointed to hear an appeal if the recommendation of a Committee on Special Education (CSE) is not acceptable to the parent. The Regulations of the Commissioner provide in pertinent part, that a parent or school district may initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or provision of a free appropriate public education (FAPE) to a child (8 NYCRR 200.5[i]).

            In New York State, impartial hearing officers in Individuals with Disabilities Education Act (IDEA)² 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 impartial 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 an impartial 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.; see Application of a Child with a Disability, Appeal No. 04-061).

            There is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the impartial hearing officer's decision, or with respect to any future dispute between the parties (Application of the Bd. of Educ., Appeal No. 05-007; Application of a Child with a Disability, Appeal No. 04-024; Application of the Bd. of Educ., Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 02-081; Application of the Bd. of Educ., Appeal No. 02-008). This is particularly so where one party objects (see Application of a Child with a Disability, Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 01-057; Application of the Bd. of Educ., Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45; but cf., Application of a Child with a Disability, Appeal No. 98-9 [consent of both parties was not necessary to retain limited jurisdiction over only the enforcement of a triennial order]).  Moreover, contrary to respondent’s assertion, once an impartial hearing officer is appointed he or she should not generally assume jurisdiction for subsequent complaints arising during the same school year in which the dispute arose for which the original appointment was made.

            Generally, petitioners may not re-litigate issues which have been decided in a prior proceeding (see  Application of a Child with a Disability, Appeal No. 04-099; Application of a Child with a Disability, Appeal No. 04-061; 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’s claims were not reviewed in Application of a Child with a Disability, Appeal No. 05-034, petitioner’s claims regarding respondent’s offer of a FAPE for the 2004-05 school year were dismissed by that decision with no allowance given for petitioner to refile. Because petitioner did not timely appeal the January 24, 2005 decision, the impartial hearing officer’s decision in Hearing 1 became final and binding (see 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][v]).

             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 Application of a Child with a Disability, Appeal No. 04-061; see generally Chappelle v. Beacon Communications Corp., 84 F.3d 652, 654-55 [2d Cir. 1996]).

             As required, respondent appointed the Hearing 1 impartial hearing officer to hear petitioner’s claims contained in her September 7, 2004 hearing request by which she did not accept the proposed individualized education program (IEP) for the 2004-05 school year (Answer Ex. F).  On February 18, 2005 petitioner filed a second request for an impartial hearing (Hearing 2) asserting the same complaints raised in Hearing 1. Under these circumstances, respondent did not err in not appointing a different impartial hearing officer where jurisdiction had been retained by the impartial hearing officer in Hearing 1 for the narrow purpose of addressing any subsequent hearing request which raised no new issues or complaints (IHO Decision, p. 12).  The retention of jurisdiction, given the facts of this case, is permissible as a very limited exception to the rule that an impartial hearing officer may not generally assume jurisdiction with respect to all matters arising from the implementation of the impartial hearing officer's decision, or with respect to any future dispute between the parties.   Further, petitioner is barred by the doctrines of res judicata and collateral estoppel from re-litigating the issues raised before the impartial hearing officer in Hearing 1 by virtue of the decision in Application of a Child with a Disability, Appeal No 05-034. 

             I have considered petitioner’s remaining contentions, including the allegation of impartial hearing officer bias, and I find them to be unsupported by the record and without merit.

THE APPEAL IS DISMISSED.