DISSENTING OPINION BY
Senior Judge KELLEY.I respectfully dissent. The Majority’s opinion 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 GIEPs without regard to the annual review rights of parents thereunder. The reasoning for my dissent in this case mirrors the reasoning for my dissent, on the same issues, as more fully set forth in D.Z. v. Bethlehem Area School District (D.Z.I), 2 A.3d 712 (Pa.Cmwlth. 2010).
To the extent that the Majority relies upon its prior reasoning on the issue of D.Z.’s purported waiver of any objection to the Hearing Officer’s failure to properly place upon the record the mandatory statement of qualification pursuant to 2 Pa.C.S. § 563(b)(2), I reiterate that D.Z.’s repeated and persistent objections throughout the record to the interpreter’s qualifications and efficacy should be read as asserting the substance of such an objection, and no waiver should be found.
' Further, any finding of waiver requires address of D.Z.’s issues challenging the actual effectiveness of the interpreter at issue. That analysis should begin with an examination of the interpreter’s legal qualifications, which are undisputedly insufficient as a matter of law in light of the Hearing Officer’s failure to make the mandated record statement required in Section 563(b)(2).
Additionally, D.Z.’s repeated and clear insistence that she has not been heard as a result of the interpreter’s ineffectiveness suffices as a showing of actual prejudice, given the fundamental nature of the due process violations alleged, and given the record’s preservation of D.Z.’s objections on that basis throughout the entirety of the proceedings below. 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 unqualified interpreter, is so obvious as to require no official designation thereof within a brief to this Court, given the record to the matter sub judice.1
The Majority’s application of the doctrine of res judicata to D.Z.’s challenges in this case is, in my view, errant, where neither the identity of the things sued upon, nor the identity of the cause of ac*754tion, is identical. The instant matter raises the issue of the appropriateness of Student’s GIEP for the 4th grade year, whereas the prior GIEP — held over as pendant under Pennsylvania regulation in light of D.Z.’s challenge to the proposed and rejected 4th grade GIEP — addressed such appropriateness only for Student’s 3rd grade year (notwithstanding the pen-dency issue as a practical matter, as mandated by regulation).
Further, District’s action in this case, in withdrawing its parentally rejected proposed 4th grade GIEP in the wake of D.Z.’s challenge thereto, sharply illustrates the evisceration of the annual educational plan review scheme established by our General Assembly. Under the Majority’s application of the res judicata doctrine herein, effectively rendering unassailable a pendant carryover education plan in subsequent years, a course of conduct by a district in which it annually withdraws any rejected proposed plan (especially in the later stages of a parent’s challenge, as in this case) and relies upon the unassailability of a pendant plan under res judicata would enable a district to forever evade review of repeatedly rejected plan proposals indefinitely. Such a result is absurd, and at direct odds with the General Assembly’s mandate for annual parental review rights.
Additionally, the very hypothetical I advanced in D.Z.I is present in this matter. Student’s previously litigated educational plan included accelerated math instruction at a 4th grade level for Student’s 3rd grade year. Rendering that plan design unassailable under res judicata leads to a result whereby the previously litigated plan, now used as a pendant carryover in subsequent challenged academic years, is unreviewable despite the express advanced design of 4th grade math instruction (for Student’s 3rd grade) now applied to Student’s 4th, 5th, and potentially future academic years. The fact that the Majority (and the Hearing Officer) expressly note that Student received accelerated math instruction at a higher level in his current academic year (despite the pendant 3rd grade design as previously approved) is a happy equitable accident of the instant facts; had that instruction still been provided at the 3rd grade level as previously adjudicated, that clearly improperly designed instruction level would have been unassailable under the Majority’s view.
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).
. 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 interpreter 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.