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Before The
The Parties to this proceeding are: Winkel Law Offices 36 Jewelers Park Drive, Ste. 202 Neenah, WI 54956 [City] School District, by Axley Brynelson LLP P.O. Box 1767 Madison, WI 53701-1767 Introduction
On February 4, 2004, the Student's parents filed a due process hearing request with the Department of Public Instruction. A prehearing telephone conference was held on February 12, 2004. On February 13, 2004, Attorney Lubinsky, on behalf of the District, filed a motion to dismiss the due process hearing request. The District's exhibits in support of the motion to dismiss were received on February 17, 2004. On February 19, 2004, Attorney Winkel, on behalf of the Student and Parents, filed a brief in opposition to the District's motion to dismiss.
Background
The Student is a child with a disability who has not attended school in the District since April 2003 and has been enrolled by his Parents in private school since May 5, 2003.
The Parents filed two requests for due process hearings in 2003. The first request, filed on May 16, 2003, raised several issues, including an allegation that the District had failed to properly evaluate and identify the child as autistic. A due process hearing in case LEA-03-019 was held on August 25, 26, 27, and 28, 2004. Attorney Ronald Stadler represented the Parents and Student at that hearing.
On November 3, 2003, Administrative Law Judge (ALJ) William Coleman issued a decision in case LEA-03-019 that granted the Parents' request for reimbursement for an independent education evaluation but denied the Parent's request for reimbursement for private school expenses. The decision contained several findings of fact, including: (1) the Student's individualized education programs and placements for the 2002-03 and 2003-04 school years were reasonably calculated to provide the Student with meaningful educational benefit, and (2) the District provided special education and related services to the Student in accordance with his IEP during the portion of the 2002-03 school year that he was enrolled in the District. ALJ Coleman concluded, as a matter of law, that the District had made a free appropriate public education (FAPE) available to the Student prior to his enrollment in public school.
On November 13, 2003, the District sent the Parents a letter offering to reevaluate the Student, as part of its "child find" obligation to private school students, and asking the Parents to contact the District about the reevaluation by December 1, 2003.
On December 11, 2003, the Parents filed another due process hearing request, case LEA-03-052. The request included several allegations, including that the District failed to properly evaluate and identify the Student as autistic.
On December 17, 2003, Attorney Winkel, on behalf of the Parents, filed a Summons and Complaint in the United States District Court for the Eastern District of Wisconsin to appeal the decision in case in LEA-03-019.
On December 23, 2003, the District sent the Parents a written Notice of Reevaluation, stating its intent to reevaluate the Student to determine whether he continues to have a disability and to identify his current educational needs. The IEP team participants listed in the Notice include an autism consultant. The Student's reevaluation is currently ongoing.
On December 24, 2003, the District filed a motion to dismiss case LEA-03-052, and the Parents filed written opposition to the motion to dismiss on December 31, 2003. On January 16, 2004, ALJ Coleman dismissed the due process hearing request on the grounds that the Parents had requested relief that was barred by claim preclusion, as well as relief to which they were not entitled.
Discussion
Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct. App. 1995). Summary judgment is appropriate if the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406,410, 570 N.W.2d 739 (Ct. App. 1997).
Under the doctrine of claim preclusion, a ruling in a prior 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, if all of the following factors are 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. Northern States Power Co. v. Bugher, 189 Wis.2d 541, 550-551, 525 N.W.2d 723 (1995).
The first issue contained in the current due process hearing request - namely, that the District failed to identify the Student as autistic - was raised by the Parents in both of their due process hearing requests in 2003. This issue is barred by the doctrine of claim preclusion, based upon the proceedings and decision in case LEA-03-019. The Parents' attorney argues that, because that decision did not include a specific determination regarding autism, the issue is not barred by claim preclusion. I disagree. The Parents raised the issue and testimony was presented regarding the issue. The ALJ concluded, as a matter of law, that the District had made a free appropriate public education available to the Student prior to his enrollment in public school. The breadth of this conclusion of law covers the issue and precludes the Parents from raising the claim again.
The Parent's attorney also argues that the District has failed to identify the Student as autistic after the due process hearing in case LEA-03-019 and that, as such, it is a "new" issue not subject to claim preclusion. However, the District offered to reevaluate the Student as of November 13, 2003, and sent the Parents a Notice of Reevaluation on December 23, 2003. The reevaluation is currently in process, and an autism consultant is part of the IEP team. Therefore, this "new" issue of failure to identify the Student as autistic since the last due process hearing is not ripe for adjudication.
The second issue raised by the Parents in the current request is that the District removed the "disability label" of obsessive compulsive disorder from the Student's IEP without evaluation and/or prior written notice to the Parents. In his brief, the Parents' attorney clarified that this claim relates to the Student's 2003-2004 IEP.
In the LEA-03-019 decision, ALJ Coleman found that the Student's IEP for the 2003-04 school year was reasonably calculated to provide the Student with meaningful educational benefit. Moreover, in his Ruling and Order on Motion to Dismiss in case LEA-03-052, ALJ Coleman stated that "[a]ll 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." In light of the proceedings and decision in case LEA-03-019, claim preclusion bars the Parents from raising this issue.
ORDER
For the foregoing reasons, the due process hearing request in this matter is dismissed with prejudice.
Dated at Madison, Wisconsin on February 23, 2004.
DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705-5400 Telephone: (608) 266-7709 FAX: (608) 264-9885 By:_________________________________ Sally Pederson Administrative Law Judge NOTICE OF APPEAL RIGHTS
APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under Wis. Stat. §115.80(7), or to federal district court pursuant to 20 U.S.C. §1415 and 34 C.F.R. §300.512. A copy of the appeal should also be sent to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400. The Division of Hearings and Appeals will prepare and file the record with the court only upon receipt of a copy of the appeal.
Before The
ORDER
For the foregoing reasons, the Order dated February 23, 2004 is clarified to dismiss the due process hearing request in this matter with prejudice, except that the issue of whether the District completed a timely reevaluation of the Student is dismissed without prejudice.
Dated at Madison, Wisconsin on April 2, 2004.
DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705-5400 Telephone: (608) 266-7709 By:_________________________________ Sally Pederson Administrative Law Judge |