On January 27, 1997, the parties were ordered to submit briefs regarding what, if any, "stay put" options were appropriate and whether the items in [Student]'s due process request had been addressed in the previous Due Process Order and were therefore resolved by the doctrine of res judicata. In the meantime, the District was ordered to continue to provide [Student] with the daily instruction she had been receiving until the undersigned administrative law judge (ALJ) issued a ruling on the issues addressed in the briefs.

[Student] is aged eighteen. She is not currently enrolled as a student with the [Unnamed] School District, but had been receiving two hours of academic instruction on an interim basis pursuant to a Due Process Order issued on October 16, 1996. The Order was issued as a result of prior litigation between the parties. District Brief 1, Ex. 7. [Student] now maintains that she is entitled to continue to receive such instruction and that it constitutes her "stay-put" placement under IDEA. [Student] Brief, p. 1. She further maintains that she should also have an appropriate tutor in order to realize a benefit from that instruction.

The District argues that it is not required to maintain the interim instruction [Student] is receiving because it does not constitute a placement within the meaning of the IDEA and is therefore not subject to the "stay-put" provision under the IDEA. The District further maintains that the interim instruction it has provided is consistent with the previous Due Process Orders.

In December of 1996, a new IEP was developed to address [Student]'s educational needs. District Brief 1, Ex. 10. The IEP specifically identifies a "phase-in" approach to [Student]'s education beginning first with individual and family counseling, once a week for thirty (30) minutes. According to the IEP, the first phase is expected to last approximately four to six weeks. It is followed by Phase II which includes both individual and school counseling sessions, once a week for thirty minutes. Phase III includes only school counseling, once a week for thirty minutes. The IEP further indicates that [Student] will begin participating in a regular education environment upon the joint recommendation of both the "school and the non-school" counselor. It also indicates that following individual and joint counseling sessions with both the school and independent counselor that [Student] will make a transition back to the school setting.

The placement offer identifies Mr. Thomas Merriam as the person who will provide individual counseling to [Student]. However, [Student] has objected to Mr. Merriam in that role. She maintains that because he is employed by CESA 6, and because CESA 6 is inextricably linked to the District and to the prior due process hearing between the parties, that he is not sufficiently "independent" to warrant being used as [Student]'s individual counselor. [Student]'s IEP specifically notes that the "individual counselor" will be a professional with exceptional education experience outside the school setting. It does not, however, provide that the individual counselor be someone who has no ties or affiliations with the District, nor does it preclude someone who is an employee of CESA 6 from acting in that capacity. Nevertheless, [Student] argues that the placement offer does not carry out the IEP because of Mr. Merriam's "lack of independence" and also because her academic programming does not begin until after the first counseling phase has been completed.

In response, the District maintains that Mr. Merriam is suitable to provide [Student] with the required independent counseling because he possesses both counseling experience and experience working with students who have exceptional education needs. Although he has been an employee of CESA 6 since 1990, he does not have any established relationships with the District's regular counseling staff, and, in fact, provided no services within the [Unnamed] School District until the 1996-97 academic year. Even at that point, he was not assigned to the [Unnamed] High School, but, rather, to an alternative school within the District. The District further contends that the interim instruction that [Student] had been receiving was only intended to last until the District was ready to implement [Student]'s new IEP and that, consequently, [Student]'s right to it expired on that date.

I. Is the District required to continue providing [Student] with interim instruction until she is able to return to [Unnamed] High School?

II. Is the placement offer in which Thomas Merriam is identified as the person to provide individual counseling to [Student] appropriate?

Reviewing Officer Sobocinski issued a Due Process Order on August 1, 1996. In it, she ordered that if [Student]'s placement was not resolved and could not be implemented prior to the receipt and implementation of certain recommended services, that the parties must then develop an interim plan which, at the very least, provided some homebound instruction to [Student] until additional plans for services could be implemented. On October 16, 1996, Ms. Sobocinski issued a letter of clarification in which she indicated that the interim instruction would be delivered to [Student] by a DPI licensed teacher or a teacher's aide under the supervision of a licensed teacher until a formal educational plan based on the evaluations could be implemented.

Following the development of [Student]'s most recent IEP, which she does not contest, a placement offer was made to her on December 20, 1996. As previously indicated, the IEP identifies a multi-step approach to [Student]'s reintegration into the school setting. It specifically provides that [Student] will begin participating in a regular education environment upon the joint recommendation of both the "school and the non-school" counselor, and that after [Student] has undergone individual and joint counseling sessions with both the school and independent counselor that she will make a transition back to the high school. No where in the IEP does it indicate that [Student] will receive individual instruction during the pendency of the transition period. [Student] had sought individualized tutoring in her first due process hearing. However, the Hearing Officer did not require the District to provide it in the IEP she ordered the District to create. Accordingly, because the issue of individualized tutoring has already been fully litigated and resolved against her, she is not now entitled to relitigate this issue under the principle of res judicata. See Hawes v. Bates 24 IDELR 1018 (N.D. Ill 1996) and Drinker v. Colonial School Dist., 888 F.Supp. 674 (E.D.Pa. 1995), aff'd. 78 F.3d 859 (3d Cir. 1996) (The rules of res judicata do apply to administrative decisions concerning IEP placement issues and to a final administrative decision in an IDEA case.)

[Student] also argues that she is entitled to continue receiving daily tutoring sessions under the "stay-put" provision of the IDEA. The "stay-put" provision provides that:

[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child.

20 U.S.C. § 1415 (e)(3)(A). A similar argument was made in Monticello School Dist. No. 25 v. George L., 102 F.3d 895 (7th Cir. 1996). In Monticello, the parents rejected a school district's proposed IEP and enrolled their son in a private school. They then brought a due process request, which alleged the IEP failed to provide a FAPE, and sought tuition reimbursement. The hearing officer directed specific IEP revisions and during the time it was necessary to make and implement them, interim services were ordered. The IEP dispute was resolved by the development of a new IEP. Nonetheless, the parents later filed a second due process request in an attempt to invoke stay-put rights to continue the interim services. However, the court ruled that:

The Parents' challenge, which related only to the IEP-1, has been resolved, and the Parents were reimbursed for their unilateral placement...for the period covering the pendency of the administrative hearing process. This result is precisely what the case law interpreting the "stay-put" provision of the IDEA mandates, and no more.

Id. at 905. It further ruled that the interim placement was appropriate only until the new IEP could be implemented. Id. at 906. (emphasis added) Once the IEP was ready for implementation, the interim services were no longer warranted and therefore not subject to the "stay-put" provisions of the IDEA. In the case at hand, the District was ready to implement [Student]'s new IEP on January 15, 1997. Therefore, it is on that date that [Student]'s right to interim instruction expired. Consequently, [Student]'s interim instruction is no longer subject to the "stay-put" provisions.

Because [Student] is not entitled to further interim services under Monticello and the doctrine of res judicata, I decline to address whether the instruction she had been receiving has been provided by an appropriate tutor.

It is also [Student]'s contention that because Thomas Merriam is a CESA 6 employee, he is not sufficiently "independent" from the District to appropriately provide her with individual counseling as a related service. [Student] maintains that counselor qualifications have not been subject to the prior due process proceedings and therefore are not barred under the principles asserted in Monticello. On August 1, 1996, Reviewing Officer Sobocinski ordered an independent educational evaluation of [Student]'s mental and emotional health in order to have adequate information for purposes of educational planning. Dr. William Merrick conducted the evaluation and provided a report to the parties regarding his findings. He also participated in the December IEP meeting and recommended that the therapy could be delivered by a public or private provider not "in cahoots" with the District. Following the IEP conference, the IEP goals and objectives for the related service of counseling were drafted. The IEP provides that the individual counseling will be provided by "a professional with exceptional education experience outside the school setting." It further provides that following individual joint counseling sessions with the school counselor and the independent counselor, [Student] will transition back to the school setting.

There is no mention whatsoever that the "individual counselor" be someone who has no ties or affiliations with the school district, or that the person not be employed by CESA 6. Indeed, the IEP could easily have incorporated those requirements, but did not. To suggest, therefore, that the "individual counselor" was not an issue in the prior due process proceedings seems decidedly disingenuous. Even more curious, is the fact that Thomas Merriam was, at one point, an acceptable counselor to [Student]. Dean Brief 1, Ex. 17. He was ultimately not utilized, but not, apparently, on the basis of his qualifications. Id.

The current IEP, which is not in dispute by the parties, repeatedly describes the counselor as "individual" rather than "independent." Moreover, there is no language in the IEP which remotely suggests that the "individual" or "independent" counselor cannot be someone who is employed by CESA 6. Mr. Merriam's ties to the District are tenuous, at best. But more importantly, he has the requisite exceptional education experience to address [Student]'s Phase I counseling needs.

It is clear that counselor qualifications were part of the parties' prior due proceedings. Additionally, because Mr. Merriam's appointment is consistent with the undisputed IEP and represents a resolution to the previous litigation, Monticello bars further litigation of that matter as does the doctrine of res judicata.

NOW THEREFORE IT IS HEREBY ORDERED that the due process hearing request of [Student] by her attorney, Patricia N. Engel, is dismissed with prejudice. It is further ordered that the District is no longer obliged to provide interim services to [Student] and that Thomas Merriam is an appropriate provider for [Student]'s individual counseling sessions.