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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 student’s 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 student’s 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 student’s 2004-05 school year.  Respondent’s 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).  Respondent’s CSE provided notice of each attempt to schedule the annual review via letters to both the student’s 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 CSE’s 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 student’s mother to go forward with the meeting (Dist. Ex. 73).  The student’s 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 student’s mother to have the school physician present (id.; Dist. Exs. 16[a], [b]).

            Thereafter, respondent’s 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 student’s 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 student’s 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 student’s 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 student’s] 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 student’s] 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 student’s 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 “if you proceed with [the student’s] 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 tolerated” (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 student’s IEP (Dist. Exs. 3, 9, 10, 43).1  The August 17, 2004 IEP recommended special education programs and services for the student’s 2004-05 school year (Dist. Ex. 3).

             By letter dated August 31, 2004, the student’s 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:  “the parent’s disagreement with the CSE’s 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 child’s IEP” (id.).  The August 31, 2004 letter suggested nullification of the IEP as one possible remedy, due to  “procedural and substantive non compliance (sic) with applicable law” (Dist. Ex. 27[l] at p. 2).

             In a decision dated October 23, 2004, an impartial hearing officer dismissed the mother’s August 31, 2004 request for a due process hearing due to “non-cooperation of the parent’s advocate in failing to advise as to her availability for a prehearing conference”.  The student’s 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 “petitioner’s request for a hearing relating to her objections to the August 17, 2004 recommendations by respondent’s Committee on Special Education (CSE) for her son for the 2004-05 school year . . . with prejudice” (Dist. Ex. 78 at p. 3)(emphasis added).  In Appeal No. 04-105, the student’s 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 student’s mother “objected to the recommendations made at an August 17, 2004 CSE meeting and requested an impartial hearing” and further, that the student’s mother “asserted disagreement with the CSE’s recommendations regarding program, placement and evaluations for her son for the 2004-05 school year” (see Dist. Ex. 78 at p. 1).

              In the present appeal, the student’s 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 petitioner’s request for a due process hearing followed soon after the impartial hearing officer’s October 23, 2004 decision which dismissed the mother’s August 31, 2004 request for a due process hearing (compare Dist. Ex. 27[m] with Dist. Ex. 27[n]).3  As alleged in the mother’s August 31, 2004 request, petitioner’s October 27, 2004 request for a due process hearing indicated that the advocacy group represented petitioner in the matter and requested a hearing “regarding but not limited to” the following issues:

the district’s failure to implement the student’s 2003-2004 IEP as pendency, and regarding the parent’s disagreement with the CSE’s recommended program, placement, evaluations, and procedural and substantive non-compliance with applicable law including but not limited to the district’s failure to provide notice of the CSE meeting to the parent and the student . . . , the district’s failure to provide prior notice to the parent . . . , the district’s failure to schedule a CSE meeting at a mutually agreed time, and place, and in a location in accordance [with applicable state regulations], the district’s failure to conduct a CSE meeting with a properly composed CSE membership . . . , the Board of Educations (sic) failure to review the student’s IEP . . . , the districts (sic) failure to provide appropriate transitional services . . . , the district’s 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).

        Petitioner’s request, similar to the mother’s August 31, 2004 request, suggested nullification of the student’s IEP, dated August 17, 2004, as one possible remedy, due to  “procedural and substantive non compliance (sic) with applicable law” (Dist. Ex. 27[n] at p. 2).  The notice also requested “pendency placement while these proceeding (sic) are ongoing which is full implementation of [the student’s] 2003-2004 IEP” (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 student’s mother/petitioner’s wife, presented petitioner’s 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 student’s 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 Officer’s decision in Application of a Child with a Disability, Appeal No. 04-105, barred petitioner’s 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 petitioner’s October 27, 2004 request for a due process hearing raised the same issues and requested the same relief as set forth in the mother’s August 31, 2004 request for a due process hearing.  The impartial hearing officer explained in his decision that if he proceeded “to review the request of the father now before me, I would, in clear effect, be simply providing a hearing relating to the mother’s objections to the August 17, 2004 recommendations made by District’s Committee on Special Education—the very thing that the Office of State Review has ruled is to be denied her” (id.).

         According to the impartial hearing officer, “[p]etitioner’s (mother’s) request was identical to father’s request” 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 “the hearing before me was, as the District has pointed out, in every way a rehearing of the mother’s request, with the Student’s father either present but uninvolved in the proceedings or not present at all”  (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 “privity” between the student’s mother and father, the student’s parents do not have “the right to commence separate due process hearing[s] alleging the same claims,” and, therefore, the father’s request for a due process hearing should be barred by res judicata.  Respondent submits that the impartial hearing officer correctly dismissed petitioner’s October 27, 2004 request for a due process hearing.   I agree, and for the reasons set forth below, petitioner’s appeal is dismissed.

        The doctrine of res judicata ‘precludes parties from litigating issues “that were or could have been raised” in a prior proceeding’ (Perez v. Danbury Hosp., 347 F.3d 419 [2d Cir. 2003]; Application of a Child with a Disability, Appeal No. 04-061, fn. 1).  ‘”[T]he principle of res judicata [is] that ‘once 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 remedy’. . . . A dismissal ‘with prejudice’ generally signifies that the court intended to dismiss the action ‘on the merits,’ that is, to bring the action to a final conclusion against the plaintiff”’ (Aard-Vark Agency, Ltd. v. Prager, 8 A.D.3d 508, 509 [3rd Dep’t, 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 officer’s determination that petitioner’s request for a due process hearing was an attempt to relitigate the mother’s request.  In addition to the striking similarities between petitioner’s request for a due process hearing, dated October 27, 2004, and the mother’s request, dated August 31, 2004, the student’s mother testified that “[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 officer—fourth for the same year” (Dec. 9, 2004 Tr. p. 24).  While it is true that petitioner’s request for a due process hearing included the allegation that respondent failed to implement the student’s pendency placement (the student’s 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 petitioner’s 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 student’s 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 mother’s 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, petitioner’s 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 petitioner’s attempt here to relitigate identical claims or issues that have already been brought to a final conclusion. 

         I have considered petitioner’s remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

1  A school district may, under certain circumstances, conduct a CSE meeting in the absence of a student’s 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 guardian’s 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 district’s 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 student’s mother is co-executive director of the advocacy group representing petitioner, the student’s 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 student’s mother and advocate regarding 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” (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 “[s]tudent with his mandated pendency program,” which was the special education programs and services set forth in the student’s 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 student’s 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. §300.510[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).

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

6  By letter dated December 30, 2004, respondent initiated a due process proceeding against the student’s parents to override the parents’ refusal to consent for re-evaluations of their child (Dist. Ex. 75).  Respondent’s due process proceeding was consolidated with petitioner’s due process proceeding in early 2005 (IHO Ex. III, pp. 1-8).  The impartial hearing officer’s May 12, 2005 decision addressed respondent’s December 30, 2004 request for a due process hearing (IHO Decision, pp. 19-33).  Neither party has appealed the impartial hearing officer’s 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. §300.510[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).

1  A school district may, under certain circumstances, conduct a CSE meeting in the absence of a student’s 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 guardian’s 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 district’s 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 student’s mother is co-executive director of the advocacy group representing petitioner, the student’s 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 student’s mother and advocate regarding 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” (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 “[s]tudent with his mandated pendency program,” which was the special education programs and services set forth in the student’s 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 student’s 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. §300.510[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).

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

6  By letter dated December 30, 2004, respondent initiated a due process proceeding against the student’s parents to override the parents’ refusal to consent for re-evaluations of their child (Dist. Ex. 75).  Respondent’s due process proceeding was consolidated with petitioner’s due process proceeding in early 2005 (IHO Ex. III, pp. 1-8).  The impartial hearing officer’s May 12, 2005 decision addressed respondent’s December 30, 2004 request for a due process hearing (IHO Decision, pp. 19-33).  Neither party has appealed the impartial hearing officer’s 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. §300.510[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).