On January 21, 2000, the Wisconsin Department of Public Instruction received a due process hearing request from [Father] and [Mother] (parents) on behalf of their daughter with severe cerebral palsy, [Student] (child). The child is a student with a disability in the Montello School District (District) and receives special education and related services. The related services include nursing services for the child. The parents claimed that the District had denied their daughter a free and appropriate public education (FAPE) by denying her nursing services at school, when the primary nurse is not available. They maintain that this forces the child to stay at home on some school days and be educated at home for two hours a day.

The District moved to dismiss this request with the argument that the claim was precluded by a previous decision by Administrative Law Judge (ALJ) Sandra Sobocinski, dated October 8, 1999, xxxxx v. Montello Sch. Dist, LEA 99-009. That request was originally filed on March 1, 1999 and a due process hearing was held and extensive testimony was received. The District also sought the reimbursement of costs for what it described as a frivolous claim filed by the parents, one of whom is an attorney. It filed its brief in support of dismissal on February 10, 2000. A pre-hearing teleconference was held on February 11, 2000 to hear the matter. Another telephone call was received from both parties on Monday, February 14, 2000 to delay the pending due process hearing and seek an extension of the statutory 45-day limit on resolution. See Wis. Stats. § 115.80(6) (1997-98) and 34 CFR § 300.511(a)(1).

The parents, for their part, claim that dismissal is not appropriate and that public policy considerations require the parents to be allowed a due process hearing. I agree that dismissal is not appropriate, at least now.

A recent 7^th Circuit case sanctioned the use of claim preclusion where appropriate when it affirmed a lower court summary judgement of a tuition reimbursement claim that was re-filed with another hearing officer. See Patricia P. ex rel. Jacob P. v. Board of Educ. of Oak Park and River Forest High Sch. Dist. No. 200, 31 IDELR 211, January 31, 2000, affirming Patricia P. ex rel. Jacob P. v. Board of Educ. of Oak Park and River Forest High Sch. Dist. No. 200, 28 IDELR 298, June 9, 1998. What is clear from these opinions is that claim preclusion is a valid argument that can be made in IDEA cases. As the District Court stated: "[N]othing in Section 1415 suggests that Congress intended to give parents two bites of the same apple . . . Quite to the contrary, Section 1415(b)(2) confers the opportunity to an impartial due process hearing . . . and Section 1451(b)(1)(E) cannot reasonably be read as providing an opportunity to make the same complaint on a repeated basis". Patricia P. ex rel. Jacob P. v. Board of Educ. of Oak Park and River Forest High Sch. Dist. No. 200, 28 IDELR 298, June 9, 1998.

Unlike the field of medicine, in the field of law second opinions are not favored. A final judgement on the merits of an action precludes the parties from relitigating issues. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428 (1981). The proper avenue is to appeal these judgements, not to engage in a collateral attack.

To be successful, a claim preclusion argument requires "the satisfaction of three elements: a final judgement on the merits in a prior suit, involving the same parties or their privies, and a subsequent suit based on the same claims." D.R. v. New Brunswick Bd. of Educ., 838 F.Supp.184, 20 IDELR 957, (1993). It is clear in the instant case that the parties are the same as those heard by ALJ Sobocinski and that the October 8, 1999 decision was intended to be final.

This leaves one remaining question: 1) whether the [Parents]’s have made an identical claim. To instruct, a reading of the original October 8, 1999 order of ALJ Sobocinski, is necessary:

In addition, one of ALJ Sobocinski’s findings includes:

Several things can be determined from this order and the finding and by the limited facts known at this point. First, ALJ Sobocinski, an administrative law judge interpreting the IDEA, determined that a prospective change in behavior was necessary to effect the provision of a FAPE. On the substance of the contingency plan for the provision of backup nursing services, the District was found to be lacking. An order was directed to change behavior by continuing the IEP process. Directing an IEP team to come up with a contingency nursing plan, as ALJ Sobocinski did, does not exclude the IEP work product from administrative review. Whether the order was carried out sufficiently is a factual issue to be determined by reviewing facts since the order was invoked. These are new facts effecting a new claim. They need a hearing to weigh appropriately.

Second, the order included a more specific mandate that the IEP team reconvene to provide a contingency plan for backup nursing services. Whatever was agreed to between the parents and the District is apparently not working to the satisfaction of the parents. This agreement came subsequent to the October 8, 1999 decision. The modified IEP health plan component and its process has not been reviewed by an ALJ. This administrative law judge needs to find out whether the parent’s request for proposed services comports with the IDEA expectations. This kind of inquiry also needs a hearing.

Next, the order directs the broader adherence to Dr. Judd’s evaluation findings in addition to the narrower directive to find backup nursing services. In this context, there may be implications to other areas of the child’s educational program. These are unknowns to the hearing officer at this point. This is another argument for conducting a hearing – to determine whether the District properly followed the medical recommendations in the order of October 8, 1999.

Finally, the new hearing request was filed on January 21, 2000. This is about two and a half months after the deadline for a contingency plan for backup nursing services was ordered. This may be enough time to determine if the backup nursing plan is working. Additional facts may be relevant. This is another argument that a new claim has been stated and supports the request for a hearing.

The order created an expectation of a change in behavior -- both through the meeting of the IEP team to secure provision of nursing services, and the broader implementation of Dr. Judd’s recommendations. What is clear is that these subsequent events and the passage of time have created a new environment that justifies review. At least at this nascent stage, dismissal is premature. By all indications, this is a new case.

The issue of claim preclusion and the IDEA structure set up by Congress are not easily compatible. Congress set up a statutory construction that seeks consensus building between the District, its employees and the parents. Both are charged to plan the child’s educational program in some detail. 34 U.S.C. 300.343 et seq. 300.347. In addition, this IEP process is renewed "periodically, but not less than annually to determine whether the annual goals for the child are being achieved". 20 U.S.C. §1414(d)(4)(A)(i).

Congress has created a constantly renewing process to effect an appropriate educational program for a child. Much like the rebirth of the baseball season every spring, every year is new consensus with new personalities and perspectives seeking to provide a better educational program. The doctrine of claim preclusion seeks to hold this process static. While this may be appropriate to effect the legitimacy of an ALJ decision and promote good public policy, there is a very real question as to how long the majority of decisions can remain in effect with the process being reborn every year at an IEP meeting and every three years with additional evaluations.

IT IS HEREBY ORDERED, that the motion to dismiss and for costs is DENIED. Furthermore, the only facts that will be admitted at a hearing are those occurring since October 8, 1999 and the testimony and evaluation of Dr. Robert Judd from the previous hearing. Upon request from both parties, the request to extend the process to pursue mediation is granted for 30 days. A new decision deadline is ordered for April 4, 2000.

Dated at Madison, Wisconsin, this 17^th day of February 2000.