00 (Pa.Cmwlth. 1995), cited by D.Z. for the proposition that this Court reversed and remanded in cases where an administrative agency's exclusion of evidence denied a party the right to a full and fair hearing, are factually distinguishable and, therefore, do not compel a different here.
First, in Duquesne Light, this Court remanded a case where a workmen's compensation referee barred an employer from conducting reasonable cross-examination of witnesses on the issue of whether a claimant provided the employer timely notice of an alleged work-related condition, an issue which was critical to the employer's defense.
Next, in Franklin Plastics, we remanded a case to the Environmental Hearing Board where it improperly barred an entity, which the Department of Environmental Resources (DER) charged with various emissions violations, from eliciting, on cross-examination, crucial exculpatory evidence, which restricted its ability to challenge the testimony and evidence DER presented.
Here, unlike in Duquesne Light and Franklin Plastics, the Hearing Officer did not improperly limit cross-examination on a critical issue. To the contrary, testimony concerning D.Z.'s IEE request was irrelevant to the proceedings on the School District's PTRE request. As explained above, D.Z. could not obtain a publicly funded IEE where the School District had not yet obtained authorization to reevaluate Student. Thus, unlike in Duquesne Light and Franklin Plastics, we discern no reversible error.
B. Appropriateness/Implementation of IEP/GIEP
D.Z. next asserts the Hearing Officer erred in refusing to consider the issues properly raised in her complaint during the proceedings here. Specifically, she argues her complaint challenged both the appropriateness and the implementation of Student's IEP and GIEP, and she requested those related issues be heard together based on her assertions that Student's disability was masking his gifted abilities. See O.R. 1264 at Item # 5, Hearing Officer Ex.2.
The School District responds that the appropriateness of Student's IEP and GIEP was barred from consideration under the doctrine of res judicata because Student's IEP and GIEP were both found to be appropriate by prior hearing officers after hearings. Thus, the School District contends these issues were not properly before this Hearing Officer for consideration, and, therefore, D.Z.'s assertions should be rejected.
By way of background, five days before the May 19, 2009, hearing on D.Z.'s complaint, the Hearing Officer informed the parties of his ruling on the issues, witnesses and evidence he would permit to be addressed. R.R. at 215a-216a. The Hearing Officer categorized the issues he perceived as presented in D.Z.'s complaint as follows: (1) appropriate design and implementation of Student's IEP and GIEP for December 2006 to the end of the 2006-2007 (5th grade) school year, for the 2007-2008 (6th grade) school year, and for the then-current 2008-2009 (7th grade) school year; (2) appropriate implementation of disability accommodations over that same time; (3) a request for more frequent audiological assessments; and, (4) an autism specialist's participation in Student's IEP team. Id.
Responding to these issues, the Hearing Officer limited the pending hearing to the implementation aspect only on the first issue, noting that the issues concerning the appropriate design of Student's IEP and GIEP for December 2006 to the end of 5th grade, and for 6th grade, were previously decided, and the same education plans remained in effect for 7th grade. The Hearing Officer also limited the hearings to only the implementation aspect of issue 2. He further excluded all aspects of issues 3 and 4 on the ground that they were related to the appropriateness of the education plans, which was decided in the prior due process adjudications. Id.
The Hearing Officer also listed the witnesses from whom he would receive testimony based on his limitation of issues, excluded the entire testimony of one witness on relevancy grounds, and excluded transcripts and exhibit books from prior hearings. Id. Additionally, the Hearing Officer expressly allowed for the admission of the prior hearing officers' decisions as exhibits. Id. We discern no error in the Hearing Officer's rulings.
Two different concepts are at issue. First, a question is raised about the design or contents of Student's education plans. This is at times referred to as the appropriateness of the plans. Second, once plans are agreed upon or approved, a question is raised about whether the plans were followed or implemented properly.
As concerns the implementation of Student's education plans, we completely reject D.Z.'s complaint that the Hearing Officer precluded her from offering proof on this issue. To the contrary, the Hearing Officer did not exclude evidence on implementation for any school year. R.R. at 94a, 215a. Indeed, at the hearing on D.Z.'s complaint, the Hearing Officer expressly permitted D.Z. an opportunity to offer evidence regarding the implementation of Student's IEP and GIEP; however, D.Z. declined to participate in the hearing. R.R. at 94a-95a. In fact, D.Z. would not allow the Hearing Officer to question witnesses regarding the implementation of Student's education plans. R.R. at 94a. D.Z.'s challenge on this issue is baseless.
Regarding the design of Student's plans, we note that res judicata bars re-litigation of a claim when the cause of action in one proceeding is identical to that involved in a prior final judgment. Stilp v. Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006). The doctrine applies to administrative agency determinations. Hall v. Pa. Bd. of Prob. Parole, 733 A.2d 19 (1999). A party seeking to bar re-litigation of a claim must show the existence of four conditions: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and, (4) identity of the quality or capacity of the parties suing or sued. Stilp.
Here, after a prior due process proceeding, a hearing officer found Student's May 31, 2007 IEP was appropriate and ordered its implementation (2007 IEP Decision). R.R. at 150a-155a. Additionally, after a different due process proceeding, a hearing officer found Student's GIEP for the 2007-2008 (6th grade) school year was appropriate (2008 GIEP Decision). R.R. at 157a-173a. Thus, it is clear that the issue of design of Student's education plans for the period from December 2006, through the completion of 6th grade, was litigated in the proceedings that culminated in the 2007 IEP and 2008 GIEP decisions. Review of those prior decisions reveals all four res judicata factors set forth above are satisfied as to the academic periods addressed in those two prior proceedings. R.R. at 150a-155a; 157a-173a. As such, we discern no error in the Hearing Officer's exclusion of issues concerning the design of the IEP and GIEP for the school years through 6th grade. Montour Sch. Dist.
For several reasons, we also reject D.Z.'s assertion that the Hearing Officer erred in excluding issues relating to the design of Student's education plans for the 2008-2009 (7th grade) school year. First, as described in more detail below, the previously approved education plans remained in effect for that school year.
Since 2007, D.Z. has not approved any educational programming offered by the School District related to Student's IEP. In particular, the record reveals that the IEP team convened on March 10, May 16, and October 22, 2008. N.T. at 138-140. After each of those meetings, the School District issued D.Z. a "Notice of Recommended Educational Placement"; each time D.Z. responded with less than her full approval. Id.; School District Ex. 9 at 1, 28-29; School District Ex. 13 at 29. After D.Z.'s October 22, 2008 rejection, the parties proceeded to mediation, which also proved unsuccessful. N.T. at 141. Based on the parties' failure to reach an agreement, the previously approved IEP remained in place and was implemented. See Section 1415(j) of the IDEA ("during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child. . . .").
Similarly, D.Z. refused to consent to a GIEP developed and offered by the School District. See School District Ex. 12. After a due process proceeding, a hearing officer determined the School District's GIEP was appropriate. Pursuant to state regulations, this GIEP remained in effect, absent an agreement by the parties, which did not occur here. See 22 Pa. Code § 16.63(a).
Thus, the IEP and GIEP, which prior hearing officers determined were appropriate, remained unchanged and in full effect for 7th grade. D.Z.'s continual rejection of the subsequent programming offered by the School District resulted in the continuation of the previously adjudicated education plans. Because the educational programming provided by the School District that was previously adjudicated as appropriate remained in effect for the 2008-2009 school year, no error is apparent in the Hearing Officer's exclusion of evidence relating to the design of the previously adjudicated education plans.
Second, and more importantly, our review of the record reveals that D.Z. did not properly preserve any issue regarding the Hearing Officer's alleged improper exclusion of evidence.
While administrative agencies are not bound by technical rules of evidence, where a tribunal excludes evidence, error may not be predicated on the ruling unless the substance of the evidence was made known to the tribunal by offer or by motion in limine or was apparent from the context within which the evidence was offered. Pa. R.E. 103(a)(2); see, e.g., Romeo v. Manuel 703 A.2d 530 (Pa.Super. 1997).
Of further note, the General Rules of Practice and Procedure, state, in relevant part (with emphasis added):
§ 35.190. Appeals to agency head from rulings of presiding officers.
* * *
(b)
Offers of proof An offer of proof made in connection with an objection taken to a ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by testimony; and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of the evidence shall be marked for identification and shall constitute the offer of proof.
1 Pa. Code § 35.190(b).
An offer of proof is designed to alert a tribunal to the content and purpose of the testimony. Romeo. It also gives a reviewing court the means to determine whether a refusal to admit the evidence was erroneous, and if it was harmful. Id.
Failure to make an offer is treated as a waiver of that ground for relief, unless the substance of the evidence was apparent from the context, or had been brought to the tribunal's attention in a motion in limine. Id.
Despite D.Z.'s general assertions, it is unclear what evidence she planned to offer that might have shown that the design of Student's education plans for 7th grade was inappropriate. D.Z. does not describe any specific design evidence in her brief to this Court. In addition, our review of the transcript reveals D.Z. made no offer of proof as to any evidence she wished to present. See R.R. at 91a-96a. In the absence of an offer of proof and any description of the alleged improperly excluded evidence before this Court, D.Z. did not preserve this issue. Romeo.
In short, D.Z. bore the burden of proof on her due process complaint. See, e.g., L.E. v. Ramsey Bd. of Educ., 435 F.3d 384 (3d Cir. 2006) (quoting Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005)) ("the burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.") However, D.Z. offered no proof in support of her allegations. In addition, D.Z. actively thwarted further development of the record by refusing to participate in the proceeding on her complaint and by not permitting the Hearing Officer to elicit testimony on the issues raised in her complaint. Without a clear explanation of what testimony D.Z. wished to elicit or what evidence she sought to present, and how that evidence may have changed the result, it is impossible to discern any prejudice resulting from the Hearing Officer's evidentiary rulings. Thus, we reject D.Z.'s bald allegations of error.
Third, our decisions in Manor v. Department of Public Welfare, 796 A.2d 1020 (Pa.Cmwlth. 2002) and Brandt v. Department of Public Welfare, 58 Pa.Cmwlth. 266, 427 A.2d 758 (1981), which D.Z. relies on for the proposition that, in conducting an evidentiary hearing, an agency should determine all issues that are adequately raised and properly before it, do not compel a different result here.
In Brandt, we remanded a case to the Department of Public Welfare (DPW) where a hearing examiner did not elicit testimony or address the sole issue raised by way of a party's request for modification or abatement of costs incurred in the treatment of the party's disabled son.
Unlike the hearing examiner in Brandt, who we faulted for not ensuring that all relevant issues were fully examined and that all parties had an opportunity to fully present their case, the Hearing Officer here expressly invited D.Z. to examine witnesses, but D.Z. declined to do so. Further, the Hearing Officer repeatedly warned D.Z. that her refusal to proceed with her case by examining witnesses would result in dismissal of her complaint. Nevertheless, D.Z. refused to participate. Also, in stark contrast to the facts presented in Brandt, the Hearing Officer here attempted to question witnesses himself in order to elicit relevant testimony, but D.Z. would not allow him to do so. E.E. at 94a-95a. Thus, Brandt is clearly distinguishable.
Similarly, this is not a case like Manor. There, a nursing facility appealed the initial denial of its request to add several medical assistance beds to its existing, certified facility. The initial denial was based on a statement of policy that indicated DPW would terminate the enrollment of facilities that expanded their existing medical assistance bed capacity. On the nursing facility's appeal, a hearing officer refused to consider the facility's challenges to the statement of policy and precluded the facility from presenting evidence in support of the issues it raised. The hearing officer also reviewed the initial denial of the facility's request for an abuse of discretion rather than de novo, as required by DPW regulations. This Court determined the hearing officer erred in failing to hear the matter de novo and in failing to decide issues raised by the facility that were "fundamental to the entire proceeding." Id. at 1030.
Here, unlike in Manor, the Hearing Officer did not bar D.Z. from presenting evidence; rather, D.Z. chose not to participate. Additionally, unlike the hearing officer in Manor, here the Hearing Officer did not refuse to consider the issues properly before him; rather, D.Z.'s unwillingness to participate in the proceedings foreclosed the development of a record on these issues. Additionally, through his evidentiary ruling issued prior to the hearing, the Hearing Officer did not refuse to consider relevant issues. Rather, he limited the issues to those not previously decided in prior adjudications, and he limited D.Z.'s proffered list of 23 witnesses to those who could present relevant testimony on the issues properly before him. Thus, D.Z.'s reliance on Manor is misplaced.
IV. Denial of Continuance
D.Z. further maintains, even if the Hearing Officer did not err in limiting the scope of the proceedings on her complaint, the Hearing Officer's subsequent denial of her request for a continuance in order to prepare her case constituted an abrogation of her due process rights.
More specifically, D.Z. argues the Hearing Officer issued his decision to restrict the scope of the hearing on her complaint via an e-mail ruling on the evening of May 14, and the hearing was scheduled to begin at 9:00 a.m. on May 19. She argues the Hearing Officer gave her less than five days notice that he eliminated the majority of her issues from consideration. D.Z. asserts she responded to the ruling by requesting a continuance and, after she reiterated that request the day before the hearing, the Hearing Officer summarily refused her request. D.Z. argues that she unsuccessfully renewed her request several times at the outset of the May 19 hearing. D.Z. asserts the Hearing Officer's denial of a continuance here, in light of his decision to significantly restrict the issues to be heard and the evidence to be considered, violated her right to both notice and hearing.
Section 35.187 of the General Rules of Practice and Procedure, states, as pertinent:
Presiding officers designated by the agency head to preside at hearings shall have the authority, within the powers and subject to the regulations of the agency, as follows:
(1) To regulate the course of hearings, including the scheduling thereof, subject to the approval of the agency head, and the recessing, reconvening, and the adjournment thereof, unless otherwise provided by the agency head, as provided in § 35.102(b) (relating to hearing calendar).
1 Pa. Code § 35.187(1).
The regulations also provide that:
(b) Except as otherwise provided by law, requests for continuance of hearings . . . shall be by motion in writing, timely filed with the agency, stating the facts on which the application rests, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing before the agency head or the presiding officer.
1 Pa. Code § 31.15(b).
The decision to grant or deny a request for a continuance is within the sole discretion of the hearing examiner. Capital BlueCross; Lee v. Dep't of Pub. Welfare, 105 Pa.Cmwlth. 211, 523 A.2d 1188 (1987). As a result, our review is limited to determining whether the hearing examiner abused his discretion. Id.
We discern no abuse of discretion in the Hearing Officer's denial of D.Z.'s continuance request. Five days before the scheduled hearing, the Hearing Officer issued a ruling in which he limited the scope of the hearing to the implementation of Student's education plans. R.R. at 215-216. In addition, he eliminated 11 of the 23 individuals D.Z. identified as witnesses she intended to present on the ground they lacked relevant information. Id. Further, based on his determination to deconsolidate the proceedings on the School District's PTRE with D.Z.'s IEP and GIEP challenges, the Hearing Officer declined to allow the parties to "reuse" exhibits from the prior proceedings in the proceedings on D.Z.'s complaint. Id.
Although D.Z. asserts she twice requested a continuance in the days preceding the May 19 hearing, our review of the record discloses no written requests. Rather, at hearing, after the Hearing Officer placed on the record his prior ruling as to the scope of the hearing, D.Z. stated:
This hearing, I do not have enough time to prepare myself and prepare for cross-examining this [sic] witnesses. I don't have enough time to prepare and to cross-examining [sic] this witness — all the witnesses. That's one.
Second, this hearing is not the same issue that I wanted to have the due process issue.
Third, before this hearing!,] school did not allow me to review [Student's] school record. I have not received — I did not get — I have not get [sic] three of [Student's] above level math tests result I have not get [sic] three of [Student's] writing test results. Also, I have not get [sic] [Student's] reading test results — above level reading result.
R.R. at 91 a-92a.
In response, the Hearing Officer stated:
The first issue, on preparation, as I indicated, the parties and I have exchanged dozens, in excess of fifty e-mails, regarding this hearing. I advised [D.Z.] of the witnesses that I expected to testify.
And I would further add that each of these teachers has worked with [Student], and [D.Z.] may well have had interactions with these teachers about [Student's] education. And so I find objections to her ability to prepare for this hearing to be unfounded.
* * *
The second issue which [D.Z.] presents regarding the basis of this hearing, I have studied [D.Z.'s] complaint at length. . . . And the issues as I have detailed them are the result of the study of that complaint. Any other issue is not a matter for this hearing.
* * *
Third, as a result of an extensive three-hour pre-hearing conference [in the prior proceeding,] the [S]chool [District was instructed to provide relevant documents to [D.Z.]. I will now ask [counsel for the School District] to represent, on behalf of the school district, that those documents have been shared. . . .
R.R. at 92a. Counsel for the School District confirmed the School District twice provided Student's records to D.Z. Id. For these reasons, the Hearing Officer declined to continue the hearing and indicated his willingness to proceed with the questioning of the witnesses present at the hearing.
Based on the facts presented, we discern no due process violation from the Hearing Officer's denial of D.Z.'s continuance request. D.Z. received ample notice of the proceedings and a full opportunity to participate. Contrary to her assertions, the Hearing Officer did not deny D.Z. her right to fully participate in the proceedings; rather, she declined an opportunity to do so. Further, D.Z. had ample time to prepare for the proceedings. She filed her complaint in December 2008, and the proceeding at issue began on May 19, 2009. Given that D.Z. had ample opportunity to prepare for the proceeding, no abuse of discretion or due process deprivation is apparent in the Hearing Officer's denial of the continuance request. Cf. Steadwell v. Unemployment Comp. Bd. of Review, 76 Pa.Cmwlth. 439, 463 A.2d 1298 (1983) (due process standards do not guarantee a party a right to a continuance, even for good reason, if he fails to request it in a timely fashion or in a manner consistent with reasonable procedural rules).
Further, this is not a case like Fiore v. Board of Finance and Revenue, 534 Pa. 511, 633 A.2d 1111 (1993), relied upon by D.Z. There, our Supreme Court determined that a taxpayer was denied procedural due process in its tax assessment challenges where, after protracted proceedings, the Commonwealth was permitted to change the basis for the assessments at the last-minute, and the taxpayer was not afforded a sufficient opportunity to prepare a defense.
Here, unlike in Fiore, we are not confronted with a situation in which a party sought to change its legal theory at the eleventh hour and the other party was not given adequate opportunity to prepare a response. The Hearing Officer's decision here to limit the scope of the proceedings by paring down the list of 23 witnesses (mostly School District employees) and limiting the presentation of evidence to issues not previously decided, does not amount to a violation of procedural due process. Moreover, although the Hearing Officer's ruling regarding the scope of the hearing was issued five days before the hearing, D.Z. filed her complaint more than five months prior to the hearing; therefore, she was afforded adequate opportunity to prepare her case.
In addition, Thomas v. Unemployment Compensation Board of Review, 117 Pa. Cmwlth. 216, 543 A.2d 600 (1988), also cited by D.Z., does not support her position. There, we held an unemployment compensation referee abused his discretion in denying a continuance to a claimant who could not attend a hearing because he was incarcerated. We determined that, in denying the continuance, the referee infringed on the claimant's constitutional right to attend the hearing.
Similarly, in Shegan v. Unemployment Compensation Board of Review, 129 Pa. Cmwlth. 62, 564 A.2d 1022 (1989), also cited by D.Z., we determined an unemployment compensation referee abused his discretion in denying a continuance to a claimant who requested the continuance prior to the scheduled hearing so that she could conduct an out-of-state job search. The referee's denial resulted in the claimant's inability to attend the hearing and present testimony.
Here, unlike in Thomas and Shegan, the Hearing Officer's decision not to continue the proceedings here did not result in D.Z.'s inability to attend the hearing or to present evidence and testimony. To the contrary, D.Z. appeared at the hearing, but elected not to participate. Thus, the Hearing Officer did not preclude D.Z.'s right to be heard; rather, D.Z. simply chose not to do so. Thus, Thomas and Shegan are inapposite here.
V. Use of Time Restrictions
As a final issue, D.Z. maintains the Hearing Officer denied her due process by imposing unreasonable time constraints during the proceedings, which hindered her in presenting her case and opposing the School District's case. D.Z. asserts, from the beginning, the Hearing Officer's focus was on expediency. She notes the Hearing Officer initially allotted two hearing sessions for the School District's case and only one session for her case. D.Z. contends she objected, asserting that allowing the School District extra time was unfair especially in light of the fact that the translation process slowed her presentation relative to that of the School District. D.Z. argues the Hearing Officer rejected this concern. She then excerpts several specific instances in which the Hearing Officer repeatedly warned her of time constraints during her examination of witnesses in the proceedings on the School District's PTRE. D.Z. contends the time restrictions were inappropriate, particularly in light of the Hearing Officer's order prohibiting her from speaking English during the hearing and his failure to appoint certified interpreters and replace ineffective interpreters. In short, D.Z. maintains the Hearing Officer improperly placed efficiency over her right to a full and fair hearing.
Although D.Z.'s brief lists a sixth question presented, "Whether a combination of errors that occurred during the Special Education Due Process Hearing resulted in a denial of due process[,]" she did not brief this issue. To the extent that D.Z. intended to raise this as an issue separate from those discussed above, we conclude she waived the issue by failing to develop it or cite authority for it. E.g., Am. Rock Mechs., Inc. v. Workers' Comp. Appeal Bd. (Bik Lehigh Concrete Techs.), 881 A.2d 54 (Pa.Cmwlth. 2005) (holding issue waived where appellant failed to develop it or cite authority for it).
In Railroad Commission of California v. Pacific Gas Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319 (1938), the United States Supreme Court explained:
The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement. There must be due notice and an opportunity to be heard, the procedure must be consistent with the essentials of a fair trial, and the [agency] must act upon evidence and not arbitrarily.
Id. at 393 (citations omitted). Further, "[t]here can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored."
Ohio Bell Tel. Co. v. Pub. Util. Comm'n of Ohio, 301 U.S. 292, 305, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).
Nevertheless, as noted, a hearing officer is vested with authority to regulate the course of administrative hearings, "including the scheduling thereof . . . and the recessing, reconvening, and the adjournment thereof. . . ." 1 Pa. Code § 35.187(1).
Here, all of the specific instances cited by D.Z. in support of her contention that the Hearing Officer restricted her ability to examine witnesses occurred during the last two hearings on the School District's PTRE, on April 1 and April 2, 2008. At the outset of the April 1 hearing, the Hearing Officer explained (with emphasis added):
Because it is critical that [Student] be evaluated, if he will be evaluated at all, it is important that I complete testimony on the PTRE today. I have informed both parties that I intend to hold a complete session to hear from all six witnesses, which will allow me to make a decision on the PTRE.
For that reason I may well move some testimony along and put some degree of time limits on questions or testimony.
R.R. at 36a. The Hearing Officer allotted approximately one hour for the testimony of each of these witnesses. See, e.g., R.R. at 40a ("As you continue your questioning, [D.Z.], I will indicate that the witness has been testifying for approximately 40 minutes, and I would like to conclude her testimony within an hour; and so approximately 20 minutes remain for questioning. . . ."); 50a-51a ("[This] witness has testified for approximately 45 minutes; and I would ask you to conclude your questioning within another 15 to 20 minutes.")
No abuse of discretion is apparent in the Hearing Officer's exercise of discretion in regulating the course of the proceedings. First and foremost, although D.Z. takes issue with the Hearing Officer's repeated reminders regarding the time allotted for examining witnesses, she offers no explanation of what testimony she was prevented from eliciting or how that testimony would have influenced the outcome of the proceedings. In the absence of such explanation, no reversible error is discernible. Capital BlueCross.
Moreover, our review of the record reveals that, although on several occasions the Hearing Officer reminded D.Z. of the time allotted for each witness, the witnesses testified at length and were subject to cross-examination. Further, in several instances in which the Hearing Officer determined no further examination of a particular witness was needed, he expressly indicated that certain points were sufficiently covered in the testimony already offered. E.g., R.R. at 55a, 58a, 66a. Also, in more than one instance, the Hearing Officer assisted D.Z. by seeking clarification on certain points raised by her examination of the witnesses and asking his own questions. R.R. at 55a, 64a, 66a.
In sum, the record makes clear that D.Z. was afforded an opportunity to participate in a full, open and fair hearing. The Hearing Officer used reasonable time limitations to control protracted proceedings which threatened to extend beyond the school year, when the availability of School District employees as witnesses would be complicated. Also, the Hearing Officer recognized Student's need for a timely resolution of the issues, especially because reevaluation was contemplated. This is not an abuse of discretion, particularly in light of D.Z.'s failure to explain any harm that she suffered as a result of this procedural ruling. Cf. First Nat'l Bank of Pike Cnty. v. Dep't of Banking, 7 Pa.Cmwlth. 603, 300 A.2d 823, 825 (1973) (Mencer, J.) ("[t]he right to limit cross-examination has been recognized in Pennsylvania to be within the sound discretion of the trial judge and absent injury to the party complainant it is not grounds for reversal.")
For all the foregoing reasons, we affirm.
ORDER
AND NOW, this 27th day of July, 2010, the orders of the Special Education Hearing Officer dated May 14, 2009, at ODR Case # 9532-08-09-AS, and dated June 2, 2009, at ODR Case # 9548-08-09-AS, are AFFIRMED.
DISSENTING OPINION BY Senior Judge KELLEY.
I respectfully dissent. The Majority's opinion, while economical in terms of these parties' protracted history, ignores the plain statutory mandate at issue, finds waiver where none has been raised or equitably exists, and potentially eviscerates the statutory review scheme governing IEPs and GIEPs without regard to the annual review rights of parents thereunder.
I first note that the Majority finds waiver where none has been raised, and where none can be found in an equitable reading of the record as a whole. The record does indeed establish that D.Z., in her admittedly self-disadvantaged position as a pro se party, never directly objected to the Hearing Officer's failure to place a record statement regarding an otherwise qualified interpreter's ability and professional conduct knowledge pursuant to 2 Pa.C.S. § 563(b)(2) at the precise time of the respective interpreters' qualification. However, D.Z.'s repeated and persistent objections throughout the record to the qualifications and efficacy of the two interpreters can easily be read as asserting the substance of such an objection, if not the proper form. See, e.g., Reproduced Record (R.R.) at RR-3, RR-20.
I emphasize that neither the District, nor the Hearing Officer, has raised the issue of a potential waiver by D.Z.
I also find the Majority's citation to the Federal Court Interpreters Act, and precedents construing the same, unavailing and unpersuasive. The Court Interpreters Act contains no provision equivalent to that of our General Assembly's statutory requirement that a record statement of qualification be made as a mandatory prerequisite to qualifying an "otherwise qualified interpreter" (which type of interpreter also has no equivalent under the Federal Act). Further, the Court Interpreters Act contains an express provision providing for the waiver of an objection to the certification or performance of an interpreter; no such express waiver provision exists under the statutory scheme passed by Pennsylvania's General Assembly. Hence, I find the support drawn by the Majority from the entirely dissimilar Federal Court Interpreters unpersuasive.
Secondly on this issue, the Majority states later in its opinion that due process protections are fully afforded to a parent by the General Assembly's provision of the statutory scheme at issue, including Section 563, allowing for interpreters when needed. This is a recognition of due process protection with which I agree. Finding a waiver of the statute's plain and clear mandate for the record statement required by Section 563(b)(2) requires, in the context of the instant challenges, a subsequent examination of the actual effectiveness of the interpreters as challenged by D.Z., as the Majority again properly recognizes. However, the Majority then proceeds to abbreviate any such analysis, in its address of the interpreters' effectiveness, on the basis that D.Z. failed to argue that any actual prejudice resulted from the alleged due process violations. I disagree with this analytical progression on two bases.
Any conclusion by the Majority that D.Z. has failed to show any actual prejudice resulting from the Hearing Officer's exclusion of the statement required by Section 563(2)(b) simply ignores the right implicated: an opportunity to be heard. The record is replete, indeed on nearly every page of the transcripts, with D.Z.'s repeated insistence that she is literally not being heard as a result of the improperly qualified interpreters' efforts. I can conceive of no more obvious and self-evident actual prejudice shown, in the context of a due process violation allegation, than a record replete with assertions that a party is literally not being heard. In my view, the actual prejudice embodied in not being properly interpreted to the Hearing Officer, in light of the use of statutorily un-qualified interpreters, is so obvious as to require no official designation thereof within a brief to this Court, given the record to the matter sub judice.
I also object to the Majority's conclusion that D.Z.'s perceived failure to show any actual prejudice in light of the Hearing Officer's failure to make the mandated record statement regarding the purported otherwise qualified interpreters renders the Hearing Officer's failure harmless error. Given the fundamental nature of the due process rights implicated herein — namely, and quite literally, the opportunity to be heard — a finding of harmless error serves to eviscerate the plain mandate of Section 563(b)(2), and by extension, eviscerates the very due process rights embodied by that Section as recognized by the Majority.
As such, any analysis of the effectiveness of the interpreters challenged herein must begin with an examination of the legal qualifications of the interpreters at issue, which qualifications are defined, in terms of the statute's provision, quite plainly. 2 Pa.C.S. § 101; 2 Pa.C.S. § 563. Under this analysis, as a matter of law, the interpreters are inarguably not qualified without a statement on the record made by the Hearing Officer as to the interpreters' abilities, and as to their reading, understanding, and agreement to abide by the applicable code of professional conduct as mandated by the General Assembly, without exception. Id. As a matter of law, then, and without any need for any further or actual showing of actual prejudice, even a perfunctory examination of the interpreters' effectiveness reveals that they are both not qualified to interpret in a Pennsylvania court absent the record statement required by 2 Pa.C.S. § 563(b)(2). Without such basic legal qualification as mandated by statute, the interpreters cannot be seen as effective as a foundational matter, notwithstanding the interpreters' subsequent efforts in the prior proceedings.
Next, I note my disagreement with the Majority's dismissal of D.Z.'s appropriate design issues regarding the educational plans that have been carried over to subsequent academic years, in the face of the parties' inability to agree on subsequent academic year plans and D.Z.'s concomitant challenges. It is beyond dispute — and D.Z. tacitly admits, in her brief to this Court — that the issue of the appropriate design of Student's IEP and GIEP for the time period from December, 2006, through the completion of the 2007-2008 school year, was litigated in the proceedings that culminated in the previously litigated 2007 IEP Decision and the 2008 GIEP Decision. A review of those prior decisions reveals that all four of the res judicata factors listed above are satisfied, in relation to the academic periods addressed in those two prior proceedings. R.R. at RR-150-173. Accordingly, I agree that the Hearing Officer did not err in excluding the issues of IEP and GIEP appropriate design for the school years including, and prior to, the 2007-2008 academic year. Further, the Hearing Officer correctly did not exclude the issue of the implementation of the IEP and GIEP for those school years, as the issue of implementation was not adjudicated in either the 2007 IEP Decision or the 2008 GIEP Decision.
The Hearing Officer's exclusion of the appropriate design of Student's IEP and GIEP for the 2008-2009 school year, however, addresses an issue that was not the subject of the prior IEP and GIEP Decisions. The IEP and GIEP that were the subjects of the 2007 IEP Decision, and the 2008 GIEP Decision, respectively, remained in effect for the 2008-2009 school year. The parties could not agree to any newly designed or proposed IEP or GIEP for the 2008-2009 school year, which D.Z. repeatedly rejected. As the Majority correctly notes, a prior IEP and GIEP in effect at the time of the rejection of, and/or subsequent challenge to, newly proposed plans remains in effect during the pendency of any such rejection and/or challenge. Section 1416(j) of IDEA, 20 U.S.C. § 1415(j); 22 Pa. Code § 16.63(a). I emphasize, however, that while the prior IEP and GIEP remained in effect in the absence of any approval of an IEP and/or GIEP for the school year 2008-2009 pursuant to IDEA and Pennsylvania regulation, no issues involving the implementation or appropriateness of the IEP and GIEP for the 2008-2009 school year were addressed or decided in the 2007 IEP Decision, or in the 2008 GIEP Decision. See R.R. at RR-157-173.
In its brief to this Court, the District concedes that the 2007 IEP Decision and the 2008 GIEP Decision addressed only the appropriateness of the respective educational plans through the conclusion of the 2007-2008 academic years. Without specific argument addressed towards the 2008-2009 school year, the District merely argues that the prior litigation of the IEP and GIEP issues for prior school years renders any argument directed towards Student's IEP and GIEP barred under the res judicata doctrine. I disagree.
The District concedes that D.Z. challenged both the appropriateness, and the implementation, of Student's IEP and GIEP.
A review of the 2007 IEP Decision and the 2008 GIEP Decision plainly reveals that neither of those cases involved, expressly or impliedly, the implementation or appropriate design of Student's IEP and GIEP for the 2008-2009 school year. As such, in relation to the 2008-2009 school year, neither the identity of the thing sued upon, nor the identity of the cause of action, are identical with the prior 2007 IEP and 2008 GIEP Decisions, and res judicata does not bar their address. Montour School District v. S.T., 805 A.2d 29 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 573 Pa. 660, 820 A.2d 163 (2003).
I would reject the District's argument that the mere fact that the prior IEP and GIEP continued to remain in effect as a matter of law renders the prior IEP and GIEP un-challengeable for the 2008-2009 academic year in light of the 2007 IEP and 2008 GIEP Decisions. The District concedes that "educational programming is designed to evolve over time," and it is well established that both federal and Pennsylvania law provide for the review, or challenge, of an IEP and/or GIEP for every individual academic year, notwithstanding any prior approval thereof for prior years, in the absence of annual parental approval thereof. Accordingly, the Hearing Officer erred as a matter of law in excluding the issues of IEP and GIEP implementation and appropriateness in relation to the 2008-2009 academic year, and the doctrine of res judicata does not bar the instant challenge.
See 34 C.F.R. § 300.324 (2006) (providing for, at a minimum, annual review of a student's IEP); 34 C.F.R. § 300.507 (2006) (providing for a parental due process complaint to challenge an educational agency's refusal to change the identification, evaluation, and/or the educational placement of a student subject to an IEP); 22 Pa. Code § 16.32 (providing for, at a minimum, annual GIEP development meetings, including at the request of a parent); 22 Pa. Code § 16.63 (providing for a parental due process hearing on the issues of the identification, evaluation, and/or the educational placement of a student subject to a GIEP).
Additionally, one potential example illustrates the frustration that can be wrought to the legislative educational review scheme by the Majority's casting of any carryover educational plan as unassailable in regards to subsequent academic years. Hypothetically, the Majority's holding enables a potentiality wherein an education plan tailored to a younger student — e.g., a plan that concludes that a 4th grade reading level is appropriately designed for a 3rd grade student — remains unassailable in the face of subsequent plan challenges in consecutive academic years, resulting in an application of the res judicata doctrine impliedly concluding that the 4th grade reading level remains appropriately designed for a 4th, 5th, or even 12th grade student of previously established advanced reading ability. Such a result is absurd, in addition to frustrating and indeed possibility eviscerating the federal and Pennsylvania provisions for challenges to the design of education plans on a timely, annual basis, allowing for the natural progression of students' academic growth.
Finally, I object to the Majority's failure to address D.Z.'s final issue, challenging the exclusion of certain witnesses and testimony by the Hearing Officer, on the basis that D.Z. failed to make an offer of proof to the Hearing Officer as to the substance of those witnesses' potential testimony. The Hearing Officer excluded 11 of 23 witnesses via email ruling, and without receiving argument on the issue by any party. If the Hearing Officer made those unilateral exclusions without knowledge (or argument thereon) as to the substance of that to which they would testify, that could constitute an abuse of discretion, given that lack of any foundational knowledge as a basis for exclusion. If the Hearing Officer did indeed have some basis regarding the witnesses' testimony upon which to base his exclusion, then an offer of proof from D.Z. was not necessary, and the exclusion should be addressed herein. Either a basis for the Hearing Officer's exclusion existed (which basis would also constitute an offer of proof, and would provide this Court with a foundation upon which to review the exclusion), or the Hearing Officer abused his discretion in excluding the witnesses without basis upon an offer of proof. The record contains no indication that an offer of proof was requested, or an opportunity therefor provided to D.Z., by the Hearing Officer at any time prior to his exclusion via email ruling.
I concur in the Majority's remaining analysis not addressed above.
I would vacate and remand for further proceedings, on the primary basis of the Hearing Officer's error as a matter of law in failing to place the statutorily mandated statement regarding otherwise qualified interpreters upon the record, as required by 2 Pa.C.S. § 563(2)(b).