NY IHO #226366: New York City... | Special Education Law

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NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

STUDENT, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 226366 THE NEW YORK CITY Dustin Johnson, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant me the authority to adjudicate this hearing. Furthermore, the undersigned is not currently, nor have I ever been, an employee of the NYC Department of Education. Finally, I do not have any personal or professional interest or bias that conflicts with my objectivity to hear this matter.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of STUDENT (“Student” or “Child”). On May 11, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) (see Exhibit P-A) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging generally that the DOE failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year on procedural and substantive grounds and seeking tuition reimbursement (id.).

On May 17, 2022, the undersigned IHO was appointed to preside over this case. On June 2, 2022, a Prehearing Conference was held (See Exhibit IHO-I). On August 10, 2022, an impartial hearing on the merits of the DPC convened and concluded the same day.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 36970 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Findings of Fact and Discussion The student attended public school through June 2018 (P-K-1). The student was evaluated by a Neuropsychologist and diagnosed with depression, anxiety, a Specific Learning Disorder with impairment in written expression and executive function deficits (P-K-2). The student has been classified by the DOE as a student with a learning disability (P-K-1; IHO-II). The student was parentally placed at SCHOOL (“SCHOOL” or “SCHOOL”) for the 2018-2019 school year (P-K-2).

On August 25, 2021, the parents provided the DOE with notice of their intent to unilaterally place the student at SCHOOL for the 2021-2022 school year and seek tuition reimbursement (P-B).

A. FAPE

At the Due Process Hearing, the District conceded that it had failed to offer the student a FAPE in this case as required by federal and state law. The District rested its case without calling any witnesses and without offering any documentary evidence. Additionally, the District declined to cross-examine any of the Petitioner’s witnesses. The District further refrained from making any arguments refuting any of the allegations in the DPC or requesting any findings from the IHO. Finally, the District admitted that this case could not be defended.

For these reasons, I find that the District failed to offer the student a Free Appropriate Public Education as required by federal and state law.

B. Unilateral Placement In this case, as the District conceded that it did not offer the student a FAPE for the 2021-2022 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at SCHOOL (“SCHOOL” or “SCHOOL”), combined with the PROGRAM, during the 2021-2022 school year, was appropriate.

The Parent argues that SCHOOL, along with its PROGRAM, is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. The District remained mute throughout the hearing and failed to argue that SCHOOL was not an appropriate unilateral placement. For the reasons described below, I find that the Parent’s unilateral placement was appropriate.

Under the circumstances of this case, where the District conceded that it failed to offer the student a FAPE for the school year in question and elected not to submit any evaluative information or assessments of the student as evidence of the District's view of the student's special education needs into the hearing record—the District has effectively abandoned any opportunity to assert its position regarding the student's special education needs and the extent to which the Parent's unilateral placement either addressed or failed to address those needs. Additionally, the District's failure to enter any evaluative information into the hearing record also effectively precludes it from arguing a credible alternate view of the student's needs or successfully rebutting the evidence proffered at the hearing by the Parents in support of the appropriateness of the unilateral placement for the student. Accordingly, to the extent that SCHOOL or PROGRAM staff relied upon evaluation reports or assessments of the student to identify the student's needs and develop the student's educational program, or any allegation on the part of the District that the Parent's evidence of the appropriateness of the unilateral placement was not sufficiently comprehensive for the purposes of determining the student's needs, the responsibility for such deficiency lies with the District and not the Parent (see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027). Moreover, because a "private placement need not provide... an IEP for the disabled student," SCHOOL had no duty to conduct the tests or evaluations typically relied upon by a district to develop an IEP (Frank G., 459 F.3d at 364).

Thus, the question of whether SCHOOL, combined with the PROGRAM, was an appropriate unilateral placement is principally determined by analyzing whether the combined program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). Furthermore, even if the District were to allege that the hearing record did not contain sufficient information to determine the student's needs, as discussed below, a review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the student's unilateral placement at SCHOOL for the 2021-2022 school year.

• The Student’s Needs Here, the Parent’s unrebutted testimony via affidavit indicated that the Parent applied to SCHOOL because: “…it provides a much smaller class size than that offered in a mainstream public school setting, and it provides [the student] with the services, supports and accommodations that he requires in order to learn. The school provides him with the small class size that he needs in order to be available for learning, the ability to be retaught concepts outside of class as needed, and schoolwide support in writing. For instance, the program provides him with mandatory small group instruction twice daily, both before and after school; individual instruction with his PROGRAM special educator two periods per week.” (see P-K-2).

The Parent further testified that: “[the student] continued to demonstrate deficits and needs that required special education instruction and strategies in order to be able to gain a meaningful educational benefit. These areas of need include his decoding and comprehension skills, his writing skills, his Executive Functioning Skills, and his anxiety and attention.” (P-K-3).

• The SCHOOL and PROGRAMs The Director of the SCHOOL PROGRAM (“Director”) testified via affidavit that in order for a student to be enrolled in the PROGRAM, a student must have a Department of Education IEP or a neuropsychological or psycho-educational evaluation indicating the nature of their disability and their needs, and then SCHOOL Admissions team reviews such documents to determine whether a student is appropriate for the program (P-J). Additionally, the Director further testified to the components of the PROGRAM (id). There was additional testimony that PROGRAM teachers and classroom teachers work together to modify instruction to meet the needs of the PROGRAM students (id).

Regarding this student in particular, the Director testified in detail to the student’s specific needs and expressed familiarity with the student’s specific learning disabilities and how SCHOOL and the PROGRAM were addressing the student’s needs (id.). Finally, the Director testified that the student derives meaningful academic benefit from the PROGRAM, which allows him to access a grade level curriculum (id.).

• Progress Although not dispositive, the hearing record also contains evidence to support a finding that the student made progress at SCHOOL (see P-C; P-D; P-J; P-K). With respect to the student's progress at SCHOOL, a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78, 2013 WL 1277308 [2d Cir. Mar. 29, 2013]; D.DS. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81, 2012 WL 6684585, [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Based upon the foregoing, the hearing record demonstrates sufficient evidence describing how SCHOOL and the PROGRAM generally—as well as how the SCHOOL teachers and the PROGRAM teachers specifically— addressed the student's special educational needs and how the program is reasonably calculated to confer educational benefits on the student. Therefore, I find that SCHOOL was an appropriate unilateral placement for the student.

C. Equitable Considerations

Having found that SCHOOL was an appropriate unilateral placement for the student for the 2021-2022 school year, the final criterion for a reimbursement award is that the Parent’s claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).

With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68). Parents of students enrolled in private school are not exempted from 10-day notice requirements (S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 [S.D.N.Y. 2009]).

The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement" (Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 [2d Cir. 2021]).

However, the hearing officer must excuse the failure to provide timely notice if, in his discretion, he determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student (See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)).

On the record before me, I see no equitable factors that would weigh against full tuition reimbursement to the Parents. The Parent provided evidence that they provided the District with Notice of the Parent’s intent to unilaterally place the student (P-B). Furthermore, the District offered no testimony or evidence and made no arguments against a finding that the equities favored the parent.

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). As one circuit court explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]; Still v. DeBuono, 101 F.3d 888, 893 [2d Cir. 1996] [finding that "[t]he appropriate amount (of reimbursement) thus bears a relationship to the quantum of services that the state would have been required to furnish"]; J.P. v County Sch. Bd., 447 F. Supp. 2d 553, 591 [E.D. Va. 2006], rev'd on other grounds 516 F.3d 254 [4th Cir. 2008] [explaining that the district "must reimburse the parents for the reasonable costs of educating (the student) at the (private school) and any related services and accommodations that would have been covered under the IDEA had (the district) provided (the student) with an appropriate education"]).

For the reasons set forth above, the hearing record demonstrates that the student's PROGRAM was sufficiently integrated into the SCHOOL program, that the PROGRAM teachers and SCHOOL classroom teachers work together to modify instruction to meet the needs of the PROGRAM students, and that the program, as a whole, met the Student’s specific special education needs. Under these circumstances, the specialized instruction cannot be solely attributed to a specific school program—SCHOOL or PROGRAM—and cannot be viewed separately from the general education instruction (Bd. of Educ. v. Gustafson, 2002 WL 313798, at *6-*7 [S.D.N.Y. Feb. 27, 2002]).

VII. Frivolous Conduct

Upon the undersigned Hearing Officers own initiative, the Respondent was ordered to show cause as to why an order imposing financial sanctions for frivolous conduct should not be entered (see IHO Exhibit III). The District submitted a written response on September 9, 2022, arguing, inter alia, that an IHO does not have the authority to sanction a party (see IHO Exhibits VI-VIII). The District’s arguments are unpersuasive.

The IDEA and its regulations do not comprehensively specify what particular procedural rules, penalties and sanctions are available to IDEA hearing officers to enable the hearing officers to effectively and efficiently manage the hearing process.^[1] However, a hearing officer has broad powers and discretion to manage the hearing process under the IDEA.^[2] This authority extends to various procedural and evidentiary matters, provided that any decision made by the hearing officer is consistent with basic elements of due process hearings and the rights of the parties set out in the statute and the regulations.^[3] Generally, decisions on procedural and evidentiary matters are given due deference and often the stricter standard of an "abuse of discretion" will need to be met for the ruling to be reversed.^[4] Thus, the test for reversal is not whether the reviewing judge would rule the same way as the hearing officer.

Ultimately, the state educational agencies have the responsibility to ensure that hearing officers are given the authority required to effectively and efficiently manage the hearing process and resolve due process complaints.^[5] Equally important, the state educational agencies are also tasked with the responsibility to ensure that a hearing officer's orders are implemented, and that whatever actions are necessary to enforce those orders are taken.^[6]

An IDEA hearing officer's authority to issue disciplinary sanctions against a party and/or an attorney for hearing misconduct generally will be set forth in state law or regulation. Few states expressly grant IDEA hearing officers sanctioning authority.^[7] Many states, however, do not have laws that expressly provide for sanctioning authority. In these states, hearing officers who have exercised sanctioning authority have done so under the assumption that their authority is coextensive with that of the court, and it is a power not derived from any express authority but arising from necessity.^[8]

Said authority is, therefore, implied.^[9]

In New York State, a Hearing Officer’s sanctioning authority is implied. In addition to that implied authority, the Rules of the Chief Administrative Judge of the New York State Unified Court System, as codified in 22 NYCRR § 130, as well as Rule 11 of the Federal Rules of Civil Procedure, offer instructive guidance to an IDEA Hearing Officer who is considering utilizing their discretion to impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. And 22 NYCRR § 130 itself specifically contemplates the applicability of the rule to officers other than judges of the courts of the Unified Court System, including hearing officers (see 22 NYCRR § 130-1.4; 22 NYCRR § 130-2.4). Such an application of extended authority as contemplated by the Rules of the Chief Administrative Judge of the New York State Unified Court System further reinforces the implied authority of a New York State IDEA Hearing Officer to issue sanctions. Based on the above, I find that a New York State IDEA Hearing Officer has the authority to issue sanctions.

As defined in 22 NYCRR § 130, conduct is frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false (see 22 NYCRR § 130-1.1(c)). In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party (id.). The imposition of sanctions may be made upon the court's own initiative, after a reasonable opportunity to be heard (see 22 NYCRR § 130-1.1(d)).

Here, on August 25, 2021, nearly one year prior to the hearing on the merits, the parents provided the DOE with notice of their intent to unilaterally place the student at SCHOOL for the 2021-2022 school year and seek tuition reimbursement (see P-B). Within that Notice, the Petitioner indicated that:

The District settled the 2018-2019, 2019-2020 and 2020-2021 school years. As a matter of policy, the DOE should settle this case within fifteen days of receipt of this notice. Pursuant to the Policy Directive issued by Mayor de Blasio on June 24, 2014, entitled New Steps to Help Families of Students with Disabilities, the section entitled Reduce Extended Legal Battles states: “The DOE will refrain from re-litigating settled or decided cases, unless there is a change in the IEP placement recommendation…” (see P-B-3)

Furthermore, in the Petitioner’s May 11, 2022, Due Process Complaint Notice, the Petitioner again attempts to avoid needless litigation, as well as the incurrence of attorneys’ fees, and endeavors to resolve the matter with the District by indicating:

To avoid lengthy litigation in this matter the Parents propose the following terms of settlement: the district will recommend to the Office of Legal Services that the case be settled for the cost of tuition and transportation. If this case proceeds to litigation and the Parents are a prevailing party on any substantial issue, the Parents will furthermore seek an award of attorneys’ fees and the recovery of all related fees and disbursements as permitted by relevant statute. (see P-A-5)

At a June 29, 2022, status conference, the District informed the undersigned that the investigation regarding a potential resolution is not yet complete and the District was requesting additional time and an adjournment for an additional status conference (see IHO Exhibit IV). At the July 19, 2022, status conference, the District informed the parties that the District was not referring this matter for settlement and that the District would like to proceed to a hearing on the merits (see IHO Exhibit V). At the July 19, 2022, status conference, the District additionally indicated that they were not defending Prong 1 of the Burlington Carter Analysis and upon further questioning from the undersigned Hearing Officer, the District indicated that they were conceding that this is a student with a disability and that the District failed to provide this student a Free Appropriate Public Education as required by federal and state law (id.). At the request of the District, a contested hearing on the merits was then scheduled for August 10, 2022.

At the August 10, 2022, hearing on the merits, the District indicated that it was not offering any evidence (see Tr. at p. 6). The District had no objection to any of the Petitioner’s proposed evidence (id.). The District conceded that the student is a student with a disability and that the District failed to offer the student a FAPE in this case as required by federal and state law (Tr. at p. 8-9). The District then promptly rested its case without calling any witnesses and without offering any documentary evidence (Tr. at p. 9). Additionally, the District indicated that they had no intent to cross-examine any of the petitioner’s proposed witnesses (id.). And the District then refrained from asking any questions of a witness that testified live at the hearing (Tr. at p. 31). The District also declined to make any closing statement and entirely abstained from making any legal arguments refuting or denying any of the allegations in the DPC or requesting any findings from the IHO in opposition to those remedies being requested by the Petitioner (Tr. at p. 32). Finally, the District admitted on the record that this is a case that is “not able to be defended” (id.). Apart from offering concessions, the District remained mute throughout the purportedly contested hearing on the merits that the District itself requested in lieu of attempting to resolve the matter in good faith, as it had done in the previous three years.

A review of the record and the District’s conduct during the status conferences and hearing on the merits shows that the District unnecessarily delayed and prolonged the resolution of this matter, litigated this matter completely without any meritorious legal arguments, senselessly incurred additional attorneys’ fees and expenses from the Petitioner’s counsel despite being offered an opportunity to resolve the matter without the Petitioner seeking attorneys’ fees, and completely wasted valuable and limited judicial resources by requesting extensions of time and multiple status conferences and then needlessly proceeding to a hearing on the merits where the District failed to put on any case whatsoever and admitted that this is a case that is not able to be defended.

The record also reflects that the District had ample time to investigate and resolve this matter, or, in the alternative, to prepare and mount a meritorious defense. That the District prolonged these proceedings by requesting additional status conferences, then requested and proceeded with a purportedly contested hearing on the merits, and then failed to mount any legitimate defense of any of the allegations against them, failed to enter any evidence or call any witnesses, failed to cross-examine any of the Petitioner’s witness or challenge any of the Petitioner’s evidence, failed to argue against the reasonableness of the unilateral placement, failed to argue that the equities did not favor the parent, failed to request a finding in the District’s favor, and then boldly admitted on the record that this case could not even be defended, cumulatively implicates the egregiousness of the District’s bad faith frivolous conduct in this matter.

The record also reflects that the District knew nearly one year before the hearing on the merits that the District had resolved similar matters with this Petitioner in the three previous school years. And while it is acknowledged by the undersigned that the District having previously resolved prior similar matters in no way obligates the District to continue to resolve similar future matters, and while it is acknowledged that the District is not currently bound by the policy directives of a previous mayoral administration (even if such a policy was wisely implemented to avoid and reduce unnecessary litigation), absent some showing of changed circumstances or material alteration of facts between the current matter and similar matters that were previously resolved, the wisdom of the District’s choice to proceed to a contested hearing in this matter is called into question. Regardless of whether the District’s conduct in this proceeding was strategic or an utter abrogation of its responsibilities, it shall not be condoned.

The record also reflects that the District knew it intended to concede that it had denied this student a FAPE at least as early as the July 19, 2022, status conference where the District requested a hearing on the merits, and the District’s conduct continued throughout the hearing on the merits when the District’s lack of any legal or factual basis for contesting this matter was apparent or should have been apparent to the District, as indicated by the District admitting that this case could not be defended.

Furthermore, what shocks the conscious of this Hearing Officer is that the District, possessed with the aforementioned knowledge, nevertheless decided to proceed to litigation, which has likely generated significant attorneys’ fees from Petitioner’s counsel, and which the District, a custodian of public fiscal resources, will likely be compelled to pay pursuant to relevant statute, and which could have been avoided entirely on multiple occasions throughout a year of needless litigation. The District’s decision to willingly invite avoidable attorneys’ fees evinces a fundamentally dysfunctional bureaucracy that has completely run off the rails. One can only hope that in the near future, someone, maybe even an independently elected official, perhaps one who safeguards the City’s fiscal health, roots out waste and abuse in local government, and ensures that municipal agencies serve the needs of all New Yorkers, will look to this case as a prime example of a municipal agency in dire need of greater oversight.

All that being said, I am sensitive to the challenges faced by the District in managing an overwhelming number of IDEA proceedings and in opting for certain litigation strategies due to limited resources, the prudence of which reasonable minds may disagree. I am also cognizant of the fact that the District chose to remove an attorney who was initially litigating this matter and instead assigned a non-attorney “District Representative” to appear for the District midway through these proceedings, which is within the District’s rights. However, one foreseeable downside to such a decision, as occurred here, is that the District risks exposing itself to liability by allowing one who may be ignorant of legal repercussions to make certain admissions and concessions on the record, to the detriment of the District, which may draw the ire of an adjudicator and may invite a potential finding of frivolous conduct and sanctions.

Considering the totality of the circumstances and being particularly mindful that this was the first time that such frivolous conduct on the part of the District has occurred before me, I am disinclined to impose financial sanctions at this time. Therefore, I have determined, in my discretion, that despite my finding of frivolous conduct on the part of the District, a warning is appropriate and sufficient reproachment here.

However, it is not unforeseeable that in the future, on similar or even more egregious facts, this Hearing Officer or another independent adjudicator may feel differently, may not exercise such discretion, and may find that the District’s conduct is outright sanctionable. Such a finding may then result in the Petitioner being awarded costs in the form of reimbursement for expenses and attorney's fees incurred as a result of the District’s frivolous conduct as well as the imposition of considerable financial sanctions against the District.^[10]

VIII. Orders

• Tuition Reimbursement For the reasons outlined above, the equities and the evidence in the hearing record supports an award of tuition reimbursement to the Parents in this case in the amount of $84,562.50 (see Parent Ex. P-H; P-K-3).
• Transportation In the DPC, the Parent indicated a desire to be reimbursed for transportation to and from SCHOOL (P-A). However, the Parent offered no testimony or evidence to support such a request. Furthermore, Petitioner’s counsel indicated that the dispute regarding transportation had been resolved to the satisfaction of the parent and the parent was withdrawing the request for transportation reimbursement. As such, I decline to award any reimbursement for transportation.
• Other Requests for Relief I have reviewed the Parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

IX. Conclusion In summary, a review of the evidence in the hearing record demonstrates that the District denied the student a FAPE, the Parent sustained their burden to establish that SCHOOL was an appropriate unilateral placement for the student for the 2021-2022 school year, and equitable considerations support an award of full tuition reimbursement.

IT IS HEREBY ORDERED that within 60 calendar days from the date of this decision, the District shall reimburse Petitioner the cost of the 2021-2022 SCHOOL tuition in the amount of $84,562.50. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit G to be adequate proof of payment made by Petitioner entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse Petitioner within 60 calendar days from the date of this decision without any action on the part of Petitioner.

DATED: SO ORDERED

9/15/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

9/15/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 226366 EXHIBITS

Parent Exhibit

Date

Title

Number of Pages

P - A

May 11, 2022

Impartial Hearing Request

P - B

August 25,2021

Notice of Intention to Unilaterally Place

P - C

-undated-

Academic Report – 2020-2021 (4th Quarter)

P - D

June 30, 2022

Academic Report – 2021-2022 (4th Quarter)

P - E

September 16, 2021

Daily Schedule

P - F

June 21, 2022

Attendance Report

P - G

March 9, 2022

Financial Affidavit

P – H

July 7, 2021

Invoice and Enrollment Agreement

P – I

January 19, 2021

Teacher Report

P - J

August 4, 2022

Affidavit

P - K

August 9, 2022

Affidavit

IHO Exhibit

Date

Title

Number of Pages

IHO-I

06/02/2022

Prehearing Conference Summary and Order

IHO-II

01/19/2021

IEP

IHO-III

8/18/2022

Order to Show Cause

IHO-IV

6/29/2022

IHO Email Summarizing 6.29.22 Status Conference

IHO-V

7/19/2022

IHO Email Summarizing 7.49.22 Status Conference

IHO-VI

9/9/2022

DOE Memo of Law in Opposition to OTSC w/ supporting documents.

IHO-VII

9/9/2022

DOE Declaration

IHO-VIII

9/9/2022

DOE Exhibits

Footnotes

[1] See Letter to Armstrong, 28 IDELR 303 (OSEP 1997).

[2] See, e.g., Forrest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 52 I DELR 151, n. 11 (2009); Davis v. Kanawha Cty. Bd. of Educ., 53 IDELR 225 (S.D.W.V. 2009); Renolett v. Independent Sch. Dist. No. 11, 2005 WL 102967, 42 IDELR 201 (D. Minn. Jan. 18, 2005) aff'd 440 F.3d 1007, 45 IDELR 117 (8th Cir. 2006); Stancourt v. Worthington City Sch. Dist. Bd. of Educ., 841 N.E. 2d 812, 44 IDELR 166 (Ohio App. Ct. 2005); O'Neil v. Shamokin Area Sch. Dist., 41 IDELR 154 (Pa. Comwlth. 2004) (unpublished). See also Letter to Anonymous, 23 IDELR 1073 (OSEP 1995); Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, 46704 (August 14, 2006).

[3] See, e.g., Davis v. Kanawha Cty. Bd. of Educ., 53 I DELR 225, 2009 WL 4730804 (S.D.W.V. Dec. 4, 2009) (finding that the hearing officer did not abuse his discretion in denying the parent's requests for a continuance); O'Neil v. Shamokin Area Sch. Dist., 41 IDELR 154 (Pa. Comwlth. 2004) (unpublished decision) (finding that the hearing officer did not abuse his discretion by denying the parent's motion to continue the due process hearing due to her child's illness made two hours into the hearing because the parent was aware of the need at the beginning of the hearing); In re New York City Dep't of Educ., 120 LRP 23512 (SEA NY 2020) (noting that district's conduct in this case was reprehensible as its objectives appeared to be geared primarily toward evading the procedural protections afforded to the parent and thwarting the impartial hearing process rather than attempting to mount legitimate defenses against the parent's claims and, as such, the hearing officer's ruling on the spot that the school district denied the student FAPE and cutting off the school district's attorneys questions, was justified); In re Student with Disability, 109 LRP 56222 (SEA NY 2009) (finding that the hearing officer properly dismissed the due process complaint with prejudice for the parent's failure to prosecute and comply with reasonable directives issued during the proceeding). See also Letter to Steinke, 18 IDELR 739 (OSEP 1992) (regarding the applicability of the five-day rule and the discretion of the hearing officer to grant continuances); Letter to Stadler, 24 IDELR 973 (OSEP 1996) (advising that IDEA does not prohibit or require the use of discovery proceedings and that the nature and extent of discovery methods used are matters left to discretion of the hearing officer, subject to state or local rules and procedures).

[4] See, e.g., Bougades v. Pine Plains Central Sch. Dist., 376 Fed. Appx. 95, 54 IDELR 181 (2d Cir. 2010) (unpublished) (cautioning that "independent review of the evidence is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities [that] they review"); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 44 IDELR 89 (2d Cir. 2005) citing Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 27 IDELR 1135 (2d Cir. 1998) ('"[D]eference is particularly appropriate when, as here, the state hearing officer's review has been thorough and careful."'); County Sch. Bd. v. Z.P., 399 F.3d 298, 42 I DELR 229 (4th Cir. 2005) (faulting the district court for not giving the hearing officer's thorough and supported findings of fact due weight); Kerkam v. District of Columbia, 931 F.2d 84, 17 IDELR 808 (D.C Cir. 1991) (observing that a hearing officer decision without "reasoned and specific findings" deserves "little deference"); Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 23 I DELR 293 (3d Cir. 1995) (observing that an administrative review is not a hearing de novo, and due deference must be given to the decision of the hearing officer below); Lewis v. School Bd., 808 F. Supp. 523, 19 I DELR 712 (E.D. Va. 1992) (stating that the rulings of the hearing officers are entitled to more than the customary "due weight" and must be accorded review on a more deferential "abuse of discretion" standard).

[5] Letter to Armstrong, 28 I DELR 303 (OSEP 1997).

[6] Id.

[7] See, e.g., CAL. Gov. CODE§ 11455.30(a) (1997) ("The presiding officer may order a party, the party's attorney or other authorized representative, or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay as defined in Section 128.5 of the Code of Civil Procedure."); 5 CCR§ 3088 (1997) (California) ("The presiding hearing officer may, with approval from the General Counsel of the California Department of Education, order a party, the party's attorney or other authorized representative, or both, to pay reasonable expenses, including costs of personnel, to the California Special Education Hearing Office.... "); 801 CMR 1.01 (8)(i) (2012) (Massachusetts) ("A Party may file with the Presiding Officer, subject to 801 CMR 1.01 (7)(a), a motion to compel discovery if a discovery request is not honored, or only partially honored, or interrogatories or questions at deposition are not fully answered. If the motion is granted and the other Party fails without good cause to obey an order to provide or permit discovery, the Presiding Officer before whom the action is pending may make orders in regard to the failure as are just, including one or more of the following... [a]n order that designated facts shall be established adversely to the Party failing to comply with the order[] or [a]n order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters."); 19 TEX. ADMIN. CODE§ 89.1170(b) (2001) ("The hearing officer has the authority to... make any other orders as justice requires, including the application of sanctions as necessary to maintain an orderly hearing process."); MINN. RULES 3525.4110, Subp. 3 (2007) ("The hearing officer has the authority to take any actions necessary to ensure the compliance with all requirements of law and may dismiss the matter, with or without prejudice, if the party requesting the hearing fails to provide information required or ordered by the hearing officer."). See also Nicholas W. v. Northwest lndep. Sch. Dist., 2009 WL 2744150, 53 IDELR 43 (E.D. Tex. Aug. 25, 2009) (upholding the sanction of a dismissal without prejudice because an alternative to dismissal, i.e., fines, costs or damages, against the plaintiffs was not available because plaintiffs proceeded in forma pauperis); K.S. v. Fremont Unified Sch. Dist., 545 F. Supp. 2d 995 (N.D. Cal. 2008) (upholding an award of sanctions of $300 by the hearing officer against the parents' attorney for filing a motion that lacked merit and "had been filed in subjective bad faith and for the sole purpose of harassing" the school district); Poway Unified Sch. Dist., 2007 WL 1620766 (Cal. Ct. App. June 6, 2007) (unpublished) (affirming an award of sanctions issued by a hearing officer in the amount of $3091.25 for untimely notice of withdrawal on the morning of the hearing); Ingram Indep. Sch. Dist., 43 IDELR 124 (SEA Tex. 2004) (finding that the conduct of Petitioner's counsel was willful, intentional, in bad faith and sufficiently egregious as to justify the sanction of a dismissal with prejudice); Indianapolis Pub. Schs., 21 IDELR 423 (SEA 1994) (upholding a hearing officer's decision, premised on expressed statutory authority which has since been repealed, to sanction petitioner's attorney $500 for "sham objections" and the failure to comply with repeated discovery orders).

[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 "inexcusable 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"). Cf. Las Cruces Pub. Sch., 44 I DELR 205 (SEA N.M. 2005) (overturning a hearing officer's recommendation to a court that the parents be held responsible for the district's attorneys' fees).

[9] Courts, too, have provided support for the inherent, sanctioning authority of IDEA hearing officers. See, e.g., Stancourt v. Worthington City Sch. Dist., 841 N.E. 2d 812, 44 I DELR 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 I DELR 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").

[10] see 22 NYCRR § 130-1.2

New York City Department of Education, Impartial Hearing Decision

I. Introduction