Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

By letter dated December 24, 2003, the [Unnamed] School District (District) has formally requested that the due process hearing request be dismissed. The District later filed a second letter dated December 31, 2003, advising of subsequent communication with the Parents. By letter dated December 31, 2003, the Parents set forth their written argument opposing the District's motion.

On January 6, 2004, the undersigned informed the Parties during a prehearing telephone conference that the motion to dismiss would be granted and that a formal order of dismissal would follow. The due process hearing request is dismissed for the following reasons.

The Parents filed an earlier request for a due process hearing on May 16, 2003, seeking reimbursement for the expenses of a private school where they had enrolled the Student in May 2003, and for reimbursement for an independent educational evaluation (IEE). The hearing request was assigned case number LEA-03-019 and the undersigned was appointed to serve as the impartial hearing officer. The due process hearing in case LEA-03-019 was conducted over four days and resulted in the issuance of a Decision on November 3, 2003, that denied the request for reimbursement for private school expenses but granted the request for reimbursement for an IEE. Among the findings of fact made in the Decision were that (1) the IEP's and placements formulated for the academic years 2002-2003 and 2003-2004 were reasonably calculated to provide a meaningful educational benefit, and (2) that the District had provided special education and related services to the Student in accordance with the operative IEP during the Student's enrollment in the District in the 2002-2003 academic year. Among the conclusions of law set forth in the Decision were that the District had made a free appropriate public education (FAPE) available to the Student.

On or about December 17, 2003, the Parents caused to be filed in United States District Court for the Eastern District of Wisconsin a Summons and Complaint in which they appeal the Decision issued in LEA-03-019. The request for relief in that appeal includes the same request for private school expense reimbursement that had been denied in LEA-03-019.

To date, the Parents have maintained the Student's enrollment in a private school. Thus, the District has not provided special education and related services to the Student since the Student's withdrawal from the District's schools in April 2003.

On December 11, 2003, the Parents filed the current due process hearing request. It provides substantially the following:

…. By this letter, we are requesting a due process hearing in regard to the District's failure to provide [Student] with an appropriate education for the 2003-04 school year.

Specifically, the District has: failed to properly evaluate [the Student] and find that he meets the eligibility criteria as a child with autism: failed to provide [the Student] with adequate placement to address his needs; failed to provide an individual to his IEP team that had significant training and knowledge in his disability; failed to provide related services, such as occupational therapy; failed to conduct a proper functional behavioral assessment. to assess [the Student's] behavioral needs; failed to develop an IEP that appropriately addresses [the Student's] social, academic and behavioral needs; and repeatedly disciplined [the Student] for conduct related to his disability without determining relationship to his disability, and without regard to his disability. The District has also retaliated against and discriminated against [the Parents] for asserting that [the Student] has a right to a free appropriate public education, failed to remove an inappropriate classification of EBD. The district is guilty of educational malpractice with respect to [the Student's] education since it's inception. Because of the District's continued failure to provide [the Student] with FAPE, his parents gave notice to the school district and have [the Student] enrolled in a private school that can provide him with an appropriate education.

Despite a due process hearing that found the district had failed to properly evaluate [the Student], and the subsequent evaluations and testimony regarding [the Student's] autism, the school continues to refuse to modify his IEP and his educational plan. This continued disregard for federal law demonstrates that the district is guilty of educational malpractice with respect to [the Student], since the inception of his education.

The school district has also failed to follow federal law with regard to FERPA, which requires the school district to release [the Student's] educational records - specifically, internal communications for the time period of January 1, 2002 through September 1, 2002, which they have had repeated request, both from [the Parents] and FERPA, with no response to such requests.

In order to resolve these issues, [the Parents] propose that the District pay for the costs of hiring independent trained personnel with significant training and knowledge in his disability (as per state law) to develop an appropriate IEP, determine placement; and pay for the costs of such placement, in accordance with federal law, for the remainder of [Student]'s education. They also propose that the school reimburse them for continued evaluations necessary to determine [the Student's] needs, which they have been pursuing due to the school failing to pursue same.

In the current due process hearing request, the Parents seek essentially to have the District ordered to do three things: (1) pay for the costs of personnel to develop an appropriate IEP, (2) determine placement and pay for the costs of the placement, and (3) reimburse them for "continued evaluations." The first two items are barred by the doctrine of claim preclusion. The third seeks relief to which the Parents are not entitled. For these reasons, the motion to dismiss is granted.

Under the doctrine of claim preclusion, a final determination in a matter "is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings." Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723 (1995)(adopting the term "claim preclusion" to replace the term "res judicata"). For the proceedings in LEA-03-019 to act as a claim-preclusive bar, the following factors must be present: (1) an identity between the parties in both due process proceedings, (2) an identity between the "causes of action" in both due process proceedings, and (3) a final determination on the merits in the original due process proceedings. Id., 189 Wis.2d at 551.

As to requested relief that the District "pay for the costs of personnel to develop an appropriate IEP," the Decision in LEA-03-019 determined that the IEP and placement for the 2003-2004 academic year was reasonably calculated to provide FAPE. All issues affecting the procedural and substantive appropriateness of the 2003-2004 IEP either were litigated or could have been litigated in case LEA-03-019. Claim preclusion bars the Parents from seeking this requested relief.

Similarly, the request that the District "determine placement and pay the costs of placement" is simply a restatement of their claim in the original proceeding that placement should be in a private school and that the District should pay for it. All matters that are justiciable in a due process hearing on the private school expense reimbursement claim either were actually litigated or could have been litigated in case LEA-03-019. Claim preclusion bars the Parents' identical requested relief in the current due process hearing request.

As to the request for reimbursement for "continued" evaluations of the Student, the Parents sought and obtained relief for an IEE in the original due process hearing. There is no indication that the Parents have thereafter requested that the District provide a second IEE, but even if they had, the law limits parents to only one publicly funded IEE for each evaluation performed by a school district. Letter to Fields, EHLR 213:259 (OSEP 1989); Letter to Thorne, 16 EHLR 606 (OSEP 1990). The request for reimbursement for the expenses of "continued evaluations" seeks relief to which the Parents are not entitled and thus must be dismissed.

For the foregoing reasons, the due process hearing request in this matter is dismissed.

Dated at Milwaukee, Wisconsin on January 16, 2004.