Impartial Hearing Decision

HEARING OFFICER DETERMINATION AND ORDER

In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding,

STUDENT^[1], a minor, by and through his/her Parent(s),

-against-

[REDACTED] UFSD

INTRODUCTION AND PROCEDURAL BACKGROUND

The District (sometimes referred to as “DOE”, “LEA”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of the Student.

A substantive fact-finding hearing was conducted in the instant matter wherein testimony and evidence was collected^[2].

It is important to note that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended to allow sufficient time for the parties to investigate the possibility of settlement and prepare for hearings. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)).

CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).

The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).

FINDINGS OF FACT AND DISCUSSION

THE INSTANT MATTER, GENERALLY

In order to aid the reader, it is important to provide the reader with some basic undisputed information. The Student at the time of the filing of the complaint was 4 years old (date of birth [REDACTED]). During the relevant time period of the complaint the Student was entering the kindergarten grade at a school within the school district. Upon entering kindergarten for the 2018-2019 school year the student attended school. On September 20, 2019 the student entered a truncated day until the filing of the due process complaint and the imposition of pendency consistent with the due process rights within the IDEA and implementing regulations of New York State.

The complaint itself alleges multiple issues. Including (1) the termination of Physical Therapy was inappropriate; (2) the amount of Speech and Language Services as provided was inadequate; (3) the amount of Occupational Therapy as provided was inadequate; (4) the District reduced the Student’s school day thus changing the Student’s placement and impeding the Student’s ability to access services. (See, Exhibit IHO II)

In addition to the issues raised in the complaint the undersigned must also address applications made seeking sanctions.

THE PROVISIONING OF A FAPE

RELATED SERVICES, GENERALLY

Dealing with the merits of the instant matter first, the threshold question for me to consider is whether or not the District provisioned a FAPE through the creation of the IEP dated March 11, 2019 (and as amended by IEP dated September 24, 2019) and its subsequent implementation.

As mentioned above the complaint in this matter alleges four (4) distinct areas of inquiry that I will limit my review to. It should be noted here that the District argues that the bulk of our hearing did not relate to the four (4) issues identified in the complaint and I agree that the Parent advocate was, in fact, unfocused and very little hearing time was devoted to the issues of the provisioning Physical Therapy, Occupational Therapy, and Speech and Language therapy^[3].

The District’s obligation with regard related services is limited to provisioning such services in order for the Student to benefit and/or have access to special education. (See, generally, Application of a Student with a Disability, Appeal No. 16-035).

PHYSICAL THERAPY

At the Impartial Hearing, the Student’s preschool physical therapy provider, testified with regard to the types and limits of physical therapy services she provided (T^[4]. at 164-313). The District also submitted Exhibits 18, 19 and 20 into evidence which details the Student’s progress towards achieving his physical therapy goals.

The PT Provider testified at length regarding the progress the Student made during the 2018-19 school year (T. 197-201). It was in her professional opinion; the Student did not require physical therapy services beyond the 2018-19 school year because “he was able to negotiate the school area.” (T. at 200).

The Parents also questioned the Student’s occupational therapist with regard to whether during the 2019-20 school year the Student still requires physical therapy services. The occupational therapist was quite clear in her opinion that the Student does not require physical therapy services, “[b]ecause he has been able to make progress with strengthening exercises. He is able to sit for longer periods of time and do fine motor activities.” (T. at 867).

The District has established by a fair preponderance of the evidence that at the time of the creation of the IEP for the 2018-2019 school year the student was physically able to navigate the school environment and his physical needs did not impede his ability to benefit from special education services. The Parents have failed to offer any evidence which would refute that finding.

SPEECH AND LANGUAGE THERAPY

District Exhibits 14 and 15 include the session notes concerning the Student’s services. The Speech and Language pathologist testified that she was responsible for the Student’s goals numbered 3, 4, 5 and 6 (T. at 342). The Speech and Language pathologist testified at length with regard to the meaning of these goals and the appropriateness of the goals. Further, the Student’s goals align with his speech/language development needs, as noted in the IEP (District Exhibit 5; Hearing Officer Exhibit I). With regard to each speech and language therapy goal, Speech and Language pathologist testified that she had been monitoring the Student’s progress and, based upon her log notes determined that the Student was progressing satisfactorily in goals 3, 4, 5 and inconsistently in goal 6. (T. 360-64). The Speech and Language pathologist went on to testify that in her opinion, the Student could be challenged beyond the goals listed in the IEP and she sought consent to reevaluate for that purpose (T. at 654-55). The Speech and Language pathologist also testified that in her professional opinion, the type and frequency of services were appropriate for the Student (T. at 373-74).

No implementation of an IEP can be so strictly construed to not allow for the practical reality of absences and scheduling conflicts. Therefore, missed sessions should not immediately result in a denial of FAPE. While the Speech and Language pathologist did note that early in the school year there were some sessions she missed, she testified that she was making any of those services up and, as of the date of her testimony, the Student was nearly completely caught up. (T. at 348). This, without more, does not constitute a denial of FAPE. Missed sessions due to scheduling issues, illness, or similar must be viewed within context. Specifically what did the District do in order to cure or remediate the issue. (See, generally, Student with a Disability, Appeal No. 18-048, citing Catalan v. Dist. of Columbia, 478 F.Supp. 2d 73, 75-76 [D.D.C. 2007]).

OCCUPATIONAL THERAPY

The Occupational therapist testified that she was responsible for the Student’s Goals numbered 9 and 10 (T. at 704). District Exhibits 12 and 13 included information concerning the Student’s services. District Exhibit 36 is the Student’s progress report as of November 2019. The Occupational Therapist testified at length with regard to the meaning of these goals and the appropriateness of the goals. Further, the Student’s goals align with his physical development needs, as noted in the IEP (District Exhibit #5; Hearing Officer Exhibit #1). With regard to Goal Number 9 and 10, she continued that as of November 2019 the Student was progressing satisfactorily (T. at 730-31). The Occupational Therapist also testified that in her professional opinion, the type of goals and the frequency of services were appropriate for the Student (T. at 733-34). Furthermore, there is absolutely nothing in the record which suggests or supports the Parents’ contention that the Student’s occupational therapy services were inappropriate in any way.

THE TRUNCATED DAY

The Parent’s arguments both at the hearing and in their closing rests principally on the issue of the Student’s truncated day and the unilateral decision making of the Director of Special Education. It would be a fair characterization that the Student during the initial weeks of the 2018-2019 school year was a student in crisis. The Student was unfocused and posed a risk to himself and others. Interventions at the class level were not working.

The Director of Special Education testified that the Parents agreed to the truncated day (T. at 1263-66). The Director testified about a meeting that occurred with herself, [REDACTED]., and the school principal. What exactly transpired at the September 19, 2019 meeting is a subject of disagreement.

The District alleges that the Parents agreed to the truncated day (T. at 1263-66). The Parent alleges, essentially, that the District gave them a choice either to agree to the truncated day or the Student would be suspended.

The District argues that the proposition between “suspension” or “truncated day” simply did not exist but rather was a mutual decision between the Parent and District in order to address the student’s immediate needs. In support of this proposition the District argues that the Parent was provided the letter that the Principal was considering a one-day suspension (District Exhibit 37). The argument continues that the suggestion of the truncated day was an attempt to to assist the Student in transition in the beginning of the school year.

The Parent denies receiving the letter, however, even if they did receive the letter the existence of the letter does weigh in the District’s favor as they argue. The outcome of this meeting between the District and the Parent was that the Student was not suspended, and a truncated day was implemented. To suggest that this was not framed as a choice to the Parents fails to acknowledge that the student was not, in fact, suspended.

The record is clear that the truncated day was meant to be temporary. Despite the stated intent that it was meant to be temporary there were no clear metrics where the student would be transitioned back to a traditional day. Also, despite the assertion that the truncated day was not more than seven days, the record suggests that it was much more open ended relying on the Student’s behavior improving^[5].

Simply put, if the Student required a truncated day or some other intervention in order to aid him in accessing his educational services due to issues with transitioning the District should have held a CSE meeting to discuss it and the incidental changes that were necessary in order to effectuate such a change to the Student’s schedule.

The District by having a meeting that was designed to discuss a Student’s potential suspension but then emerge from such a meeting with a change to the student’s placement no matter how temporary, at best has the appearance of impropriety and at worst suggests that the notion of the suspension of the Student was pretext to “encourage” consent to the truncated day.

Either way, the implementation of the truncated day should have been preceded by a meeting where the parent’s right to due process could have been preserved and the Parents and District could have meaningfully discussed the Student’s issues without the specter of the Student’s suspension looming over the Parents at all. This is underscored by the testimony elicited that upon the decision to place the child in a truncated day there was no discussion on how the Student’s related services would be implemented during this time (T. at 3296).

The District argues, in part, that the truncated day was de minimis in that the Student was only on the truncated schedule for seven (7) school days. The District further draws parallels to the Commissioner's regulations as to disciplinary matters while acknowledging that the truncated day did not constitute a form of discipline. This is not a hearing held pursuant to the provisions of the regulations as they relate to disciplinary matters and therefore, I will not address those arguments nor will I draw from those regulations in arguing here whether a denial of FAPE occurred. In the instant matter, while I do not dispute the fact that it only occurred for seven (7) days I do not believe it would have ended but for the filing of the underlying due process complaint and the imposition of pendency. Moreover, the time of the denial does not mean a denial did or did not occur but rather what remedies, if any, should be crafted by the undersigned for such a denial.

As stated earlier, the implementation of an IEP cannot be viewed in a vacuum. The implementation or lack thereof must be viewed in context to what is occurring. The District must be afforded some latitude in making adjustments as to the implementation of a student’s IEP “on the fly”. Whether it be for scheduling issues or when the Student’s safety, that of his peers, or school personnel is involved. Similar deference must be given to implementation of interventions that cannot occur as quickly as the parents would like but rather take time to “set up” for the Student’s benefit^[6].

However, even affording these flexibilities and deference it is clear to the undersigned that the record establishes that the District utilized the truncated day not as a form of reasonable intervention to enhance the student’s access to education but rather as an effort to minimize the Student’s time in school due to behavioral issues. Compounding this were unclear metrics for the Student’s return and the fact that at the time of the truncated day the implementation of the Student’s related services was unclear.

I therefore find that the implementation of the truncated day as implemented here not as a form of discipline but rather as a form of intervention based on his behavioral needs without an IEP constituted an impermissible change of placement and therefore denied the Student a FAPE. THE CONDUCT OF THE PARTIES DURING THIS HEARING AND SANCTIONING AUTHORITY OF THE UNDERSIGNED

Before discussing what relief, if any, I must first address the conduct of the parties in this matter. In the years since I have joined the panel of Impartial Hearing Officers in New York State I have had the distinct honor of presiding over hundreds of cases. While Parents and the District always come from differing points of view when it comes to these hearings, most cases the parties are able to advocate for their positions while maintaining respect and affording their adversary basic decorum. It is this civility that is the cornerstone of our adversarial legal system.

Despite what can be characterized as a relatively straightforward complaint the underlying hearing was mired with animus, unnecessary theatricality, childish behavior, and conduct that could at best be described as unpreparedness or at worst intentional misrepresentation. The record is replete with admonishments towards the lay advocate urging him to correct his behavior.

To be clear zealous advocacy can sometimes not be pretty or cordial. Arguments can flare and the line between zealous advocacy and civility can, at times, get blurred. The passions of the moment can cloud even the best attorney or advocate; however, this was not the case here. The record is replete with such comments that had nothing to do with the case itself and could hardly be justified as “heat of the moment”^[7].

The undersigned is responsible for ensuring that the hearing is conducted in an orderly manner in order to afford both sides with due process but despite my best efforts to remind the advocate of this fact and his role in that notion the behavior of the advocate persisted.

This behavior is in a sharp contrast to the behavior of the parents both of whom testified in this matter. The parent’s maintained civility, engaged in pleasantries with the District and while I have no doubt they felt they were wronged by the district, they wanted the process to play out and to “have their day in court”.

I, of course, use the term “court” euphemistically because had I been a judge I doubt the advocate would have behaved in such a way, or alternatively, the advocate would still be assigned to the case. The plenary power of judges of the state of New York is clear and unambiguous and the advocate in this case would have been fined, removed from the case, or perhaps even jailed.

Unfortunately, the IDEA is silent on the ability to sanction, deferring to state law on what authority should be granted. Few jurisdictions grant the IDEA hearing officers sanction authority, explicitly. Notwithstanding, in jurisdictions where it is not explicitly granted it has been implied by hearing officers and the Courts of that jurisdiction, alike.^[8] This follows the basic legal tenet that it is the undersigned’s responsibility is to ensure that a hearing is conducted in an orderly fashion in order to preserve the due process rights of the District and Parent. Embedded within that responsibility is to ensure that the parties, while adverse to one another, conduct themselves in a manner that is not only consistent with general dignity but also affords the proceedings with the solemn respect that legal proceedings must be accorded. While the undersigned ability to sanction is implied it remains relatively untested in this State. The fact the ability to sanction and the scope of that sanctioning authority is untested is a testament not to the fact that impartial hearing officers do not have that ability but rather to the fact that most parties conduct themselves in accordance with basic principles described here therefore not needing sanctions as a measure to maintain decorum and control..

On or about July 15, 2020 the undersigned issued an order in response to these actions of the Parent advocate the order stated the following:

ORDERED that the Parent Advocate and the Parent are hereby put on notice that the previous conduct before this IHO has not conformed with generally accepted advocacy principles and should the Parent advocate engage in continued ad hominem attacks or other conduct deemed by the undersigned to be inappropriate the Advocate and Parent will face sanctions;

Upon the issuance of the order I would agree that the advocate was more tempered however, over time, continued to push the boundaries of what would qualify as advocacy. The parents attempted to restrain the more flamboyant moments of the advocate; however these attempts were again met with limited to no success.

During the hearing, I explored the possibility of outright dismissal of the complaint (In re Student with a Disability, No. 09-073,109 LRP 56222 (N.Y. SRO Aug. 14, 2009), explored limiting the parent’s case to the statutorily defined “day” of hearing^[9], I further explored the possibility of shifting relative burdens in this matter and the more traditional sanction of monetary penalties. These sanctions harm the Parent and Student more than the advocate. Also, while outright dismissal is a sanction previously recognized by appellate authority there is also a progeny of cases that favor a determination on these matters on the merits of the case rather than legal nuance.

To be clear, the undersigned is charged with the responsibility to ensure the hearing is conducted orderly and the parties must be expected to conduct themselves in a way that affords all parties with respect, dignity, and the opportunity to be heard. If the undersigned were not vested with this inherent ability it would be impossible for any hearing officer to be able to ensure and protect due process rights when one of the parties refuses to follow basic principles of decorum.

I find that the lay advocate in this matter knowingly and with wanton disregard to my directives including the order dated July 15, 2020 continued in a course of conduct that not only attempted to demean these proceedings and his adversary but also attempted to infringe upon the District’s right to have this hearing heard in accordance with due process. I choose not to dismiss this matter outright in favor of the District nor to award fees to the District, however, when exercising my discretion, the conduct of the advocate will be considered.

RELIEF SOUGHT

Modifications to the IEP The District argues, in part, that the Parent and District have since the time of the filing agreed to a placement and therefore as it relates to prospective relief the doctrine of mootness should apply. This hearing has been pending before me for approximately 575 days This is partly due to regular scheduling issues, the conduct of the parties as described in this determination, but mostly due to the COVID crisis. Admittedly the student that entered the proceedings is very different than the one that is leaving. Regardless of the cause, the Student is in a “consent” placement that from all accounts appears to be positive for the Student. Therefore in lieu of unilaterally making changes to the Student’s placement. I shall direct the District to the extent not already provided within the last 6 calendar months^[10], the Parents shall be entitled to independent evaluations in the areas of Speech and Language Therapy and Physical Therapy by a provider of the parent’s choosing at market rate or the rate the District previously paid the provider for similar evaluation within the last six (6) months, whichever is less.

Upon receipt of the evaluations within 15 days the District shall conduct a CSE meeting with all necessary parties in order to determine if the current placement is the most appropriate placement for the Student.

Compensatory Education

Having found that the only denial in this matter was that of the truncated day the request of the Parent for 576 hours of compensatory services is excessive and inconsistent with the record established. Compensatory Education, generally, is meant to place the Student in a position that he or should have otherwise occupied had it not been for the denial of FAPE. Since the very nature of that determination is speculative the case law allows broad discretion to the undersigned to determine whether and how much compensatory education should be awarded. However, under no circumstances should any compensatory award be considered punitive. Given the short length of the denial of FAPE and the nature of the denial I find that an award of twenty (20) hours of compensatory education in both the areas speech and language therapy and occupational therapy is appropriate.

Other Relief outside the scope of my authority The Parent through their advocate at differing times stated that they wanted the Director of Special Education to not be involved in this matter. Personnel assignments are reserved to the board of education and are not subject to review through this process.

ORDER

BASED ON THE FOREGOING, IT IS,

ORDERED that the District in implementing a truncated day without holding a CSE meeting substantively denied the Student a FAPE; and it is further,

ORDERED that the District shall provide 20 hours as compensatory services in both Speech and Language Therapy and Occupational Therapy services; and it is further,

ORDERED that to the extent the District has not provided an Independent Educational Evaluation in the last six (6) months the Parent’s may seek an IEE in the areas of Speech and Language and Physical Therapy. Said evaluations shall be conducted by an evaluator of the Parent’s choosing at their usual and customary rate or the rate the provider has previously accepted from the District in the last (6) months, whichever is less; and it is further,

ORDERED that the District within fifteen (15) days the receipt of any of the above IEE evaluations described above the CSE shall convene in order to review the evaluations and all contemporaneous and relevant data in order to determine the most appropriate placement for the Student; and it is further,

ORDERED that all other relief not granted herein is denied.

Dated: April 30, 2021

Garden City, New York

Jeffrey Guerra, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Personally, identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.

[2] Included as part of the record, and herein incorporated by references are lists of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e. Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e. Exhibit A, B, etc.). Evidence of the IHO are denoted by roman numerals (i.e. Exhibit I, II, etc.).

[3] While the Parent bears no burden in this matter, it is worthy to note that the Parent in their closing did not address the issues of services but rather principally argued the issue of the truncated day. (See, Parent Brief and Closing Memoranda)

[4] T. denotes Transcript

[5] There is testimony from the Principal that at least suggests the truncated day was terminated when mutual consent no longer existed (T. at 3079), however, the lack of “mutual consent” coincided with the filing of the due process complaint and the implementation of pendency, therefore, this IHO does not believe that absent the filing of the Due process complaint the student would have resumed his special education placement upon the parent’s revocation of their consent.

[6] Neither the District nor the parent raise an issue with the Student’s bussing at the time of their closings, although some testimony was elicited at hearing. The District in that regard acted appropriately and in the view of the IHO illustrates the premise made here that some implementation must be viewed within the larger context.

[7] Counsel for the District offers as part of their closing brief an appendix that included many of comments that are illustrative of the behavior being discussed in this determination for the sake of brevity it is not being reproduced here.

[8] See, e.g., Bd. of Educ. of the Hillsdale Cmty. Sch., 32 IDELR 162 (SEA Mich. 1999) (relying on the state’s administrative code providing hearing officers the authority “to control the conduct of the parties or participants in the hearing for the purpose of ensuring an orderly procedure” when awarding costs of $308.86 to the school district’s lawyer based on the parents’ attorney’s “unexcusable failure to communicate with the District’s counsel in a timely fashion”); Okemos Pub. Sch., 29 IDELR 677 (SEA Mich. 1998) (relying on the state’s administrative code also relied on in Hillsdale, supra, when dismissing the due process complaint with prejudice because of the parent’s failure to cooperate and to comply with pre-hearing orders); Dist. City 1 & Dist. City 2 Pub. Sch., 24 IDELR 1081 (SEA Minn. 1996) (relying on the notion that hearing officers have the “implied authority to control the conduct of the hearing and persons appearing there” when ordering the student’s attorney to pay the school districts $2000 for pursuing a summary judgment motion “made without factual basis, upon unsupported and distorted facts, and upon illogical arguments”). Courts, too, have provided support for the inherent, sanctioning authority of IDEA hearing officers. See, e.g., Silva v. Dist. of Columbia, 63 IDELR 217 (D.D.C. 2014) (stating that IDEA due process hearings are quasi-judicial proceedings and that IDEA hearing officers are vested with implied powers beyond those that are specifically enumerated); Stancourt v. Worthington City Sch. Dist., 841 N.E. 2d 812, 44 IDELR 166 (Ohio Ct. App. 2005) (concluding that IDEA hearing officers are “vested with implied powers similar to those of a court” and have the discretionary power to dismiss due process complaints as a sanction for disregarding orders or failing to prosecute); Moubry v. Indep. Sch. Dist. No. 696, 32 IDELR 90 (D. Minn. 2000) (interpreting a Minnesota Rule of Civil Procedure, since repealed, which granted the hearing officer authority to “do additional things necessary to comply” with the special education rules, to include “the authority to assess sanctions against a party who files a frivolous request for a hearing”)

[9] Pursuant to 8 NYCRR § 200.5(j)(3)(xiii) this is less a “sanction” and more a declination to exercise my discretion in the matter.

[10] While not part of this record, some of these evaluations may have been provided within the context of the student’s annual review process. It is not my intent to require the District to provide another evaluation if that evaluation was conducted within the last six (6) months.