06-100

        Petitioners appeal from the decision of an impartial hearing officer which dismissed their due process complaint notice, which was seeking reimbursement for their daughter's tuition costs at the Yeshiva of North Jersey (YNJ) for the 2005-06 school year, based upon the doctrine of res judicata.  The appeal must be dismissed. 

            Petitioners' daughter is 13 years old (Pet. ¶ 1).  She attended YNJ for her 2004-05 (sixth grade) and 2005-06 school years.  YNJ has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).  The student was the subject of a prior appeal, Application of a Child with a Disability, Appeal No. 06-013.  The student's educational background is described in the decision in that appeal, and will not be repeated in detail in this decision.  It appears that the student was classified as a preschool student with a disability in 1997, later declassified, and then in 2004 classified as a student with a learning disability (Application of a Child with a Disability, Appeal No. 06-013).  Respondent disputes the student's present eligibility for special education, however the present appeal involves only the 2005-06 school year and the student's present eligibility for special education is not at issue.

            At issue in the present appeal is the impartial hearing officer's decision to grant respondent's motion to dismiss petitioners' June 22, 2006 due process complaint notice seeking reimbursement for the 2005-06 school year, prior to an impartial hearing.  As detailed herein, I concur with the impartial hearing officer, and find that petitioners' due process complaint notice was appropriately dismissed on the basis of res judicata because reimbursement for the 2005-06 school year had already been decided against petitioners in a prior impartial hearing and in a subsequent appeal to a State Review Officer.

            On June 22, 2006, petitioners submitted a due process complaint notice seeking reimbursement for the 2005-06 school year (IHO Decision, p. 3).  On June 29, 2006, the impartial hearing officer conducted a pre-hearing conference by telephone conference call in this matter (id. at p. 2).  During the call, respondent indicated its intent to move to dismiss petitioners' claim, prior to an impartial hearing (id.).  The impartial hearing officer requested submissions on this issue and both parties forwarded submissions to the impartial hearing officer (id. at pp. 2-3).

            The impartial hearing officer noted that the motion raised the issue as to whether petitioners were precluded from bringing their June 22, 2006 due process complaint notice seeking reimbursement for the 2005-06 school year based upon the doctrine of res judicata.  The impartial hearing officer noted that if the matter had already been decided as a result of a prior impartial hearing and subsequent appeal to a State Review Officer, then another impartial hearing was precluded.

            The impartial hearing officer found that a claim for reimbursement for the 2005-06 school year was in fact requested by petitioners at a prior impartial hearing and in a prior appeal to a State Review Officer (IHO Decision, p. 4).  He found that petitioners' prior due process complaint notice, dated February 7, 2005, did not mention the 2005-06 school year, and it appeared to reference only the 2004-05 school year (id. at p. 3).  However, the impartial hearing that was subsequently held on five dates between July 6, 2005 and October 31, 2005 (Hearing 1) resulted in a decision dated December 30, 2005 which reflected that petitioners were seeking tuition reimbursement for the 2005-06 school year at the impartial hearing (id.).  The impartial hearing officer (Hearing 1) denied petitioners' request for tuition reimbursement for the 2005-06 school year (id.).  Petitioners' subsequent appeal to a State Review Officer (Appeal 1) also requested tuition reimbursement for the 2005-06 school year, which was denied (id. at p. 4).  The impartial hearing officer in the present appeal reviewed petitioners' prior petition for review to a State Review Officer (Appeal 1) and he found that it failed to set forth petitioners' present argument that the prior impartial hearing officer should not have considered a claim for reimbursement for the 2005-06 school year because the claim was not specifically raised in petitioners' hearing request (id.).  The impartial hearing officer concluded that both the prior impartial hearing (Hearing 1) and prior appeal (Appeal 1) addressed petitioners' claim for tuition reimbursement for the 2005-06 school year (id.).  In his decision, he held that he lacked jurisdiction over an appeal of an impartial hearing officer decision or a decision of a State Review Officer, and he granted respondent's motion to dismiss (id. at p. 5).

            Petitioners appeal and assert that the 2005-06 school year was beyond the scope of the prior impartial hearing because their February 7, 2005 due process complaint notice did not specifically include a request for relief regarding that school year.  Petitioners also assert that the parties did not consent to expand the scope of the prior impartial hearing to include the 2005-06 school year.  They claim that respondent refused consent to expand the scope of relief to the 2005-06 school year.  Respondent answers petitioners' assertions and denies that petitioners were ever deprived of an opportunity to present evidence regarding the 2005-06 school year to the prior hearing officer.

            I concur with the impartial hearing officer that petitioners are precluded from requesting a due process hearing with regard to the 2005-06 school year on the basis of res judicata, as set forth herein.

           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, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 04-099).

The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation.  The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again.

In re Hunter, 4 N.Y.3d 260, 269 [2005]).

"[P]rinciples of res judicata require 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'" (Chen v. Fischer, 6 N.Y.3d 94, 100 [2005] [quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 [1981]]; In re Hunter, 4 N.Y.3d at 269).

            I have considered petitioners' assertions on appeal, and I find that petitioners previously had the opportunity to present their case with regard to tuition reimbursement for the 2005-06 school year at Hearing 1 and on Appeal 1.  To the extent that they requested relief regarding the 2005-06 school year during Hearing 1 and then failed to present evidence at Hearing 1, they are precluded from now doing so.  Beyond a bare allegation that respondent refused its consent at Hearing 1 when petitioners sought to expand the scope of relief to the 2005-06 school year, there is no explanation or proof set forth by petitioners in support of this allegation.  Respondent denies petitioners' assertion that they were deprived of an opportunity to submit any evidence at Hearing 1 pertaining to a claim for tuition reimbursement for the 2005-06 school year.   Petitioners also never raised this issue in Appeal 1.  Both federal and state regulations provide that an impartial hearing officer's decision is final unless appealed to a State Review Officer (20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[j][5][v]).  Petitioners are precluded by res judicata from requesting a due process hearing regarding tuition reimbursement for the 2005-06 school year on two grounds.  First, they had the opportunity to present evidence regarding the 2005-06 school year at Hearing 1, and second, they had the opportunity to appeal any alleged inability to present evidence at Hearing 1 during Appeal 1 and failed to do so.  Petitioners were denied tuition reimbursement for the 2005-06 school year by the decisions in Hearing 1 and Appeal 1 and may not now raise this claim (see Perez, 347 F.3d at 426; Murphy, 761 F.2d at 879; 20 U.S.C. § 1415[i][1][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[j][5][v]).

            Additionally, petitioners are also precluded from raising the claim that the impartial hearing officer in Hearing 1 lacked jurisdiction over a claim for tuition reimbursement for the 2005-06 school year because they failed to raise this issue in Appeal 1.  Petitioners were required to have raised this issue in Appeal 1 because it is an issue that could have been raised at that time (seePerez, 347 F.3d at 426; Murphy, 761 F.2d at 879).

            Lastly, to the extent that petitioners assert they were aggrieved by the decision issued by the State Review Officer in Appeal 1, such assertions are properly raised in a court proceeding, and not in an additional appeal to a State Review Officer (see 20 U.S.C. § 1415[i][2]).  I note that petitioners reference in their petition that they have appealed the decision in Application of a Child with a Disability, Appeal No. 06-013 to a federal district court.

THE APPEAL IS DISMISSED.