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CASE NUMBER: 584292 - NYC: 235930
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 8, 2022
Date(s) of Hearing: November 3, 2022
November 10, 2022
December 6, 2022
January 3, 2023
February 6, 2023
Actual Record Closed Date: March 7, 2023
Date of Decision: March 20, 2023
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
November 3, 2022
For the Student:
REDACTED REDACTED, Legal Assistant
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
November 10, 2022
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
December 6, 2022
For the Student:
REDACTED REDACTED, Legal Assistant
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
January 3, 2023
For the Student:
REDACTED REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
February 6, 2023
For the Student:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent Student
REDACTED REDACTED, Educational Director, REDACTED REDACTED
For the Department of Education:
REDACTED REDACTED, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint filed on or about September 8, 2022. Ex. A.[1] On October 25, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department inappropriately reduced special education and related services for REDACTED for the 2022-2023 school year and seeks funding for SEIT and speech-language therapy provided to REDACTED. Ex. A. Parent seeks direct payment for these services to an agency, REDACTED REDACTED Inc. (“REDACTED”). Exs. A, H.
I conducted a prehearing conference on November 3, 2022. An advocate for REDACTED’s parents appeared; no one appeared on behalf of the Department. At the prehearing conference, the advocate for REDACTED’s parents reported that the parties were negotiating a resolution agreement and requested a pendency hearing.
A pendency hearing was conducted on November 10. Counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Exhibits A through C were admitted in evidence, and an Order on Pendency was issued.
On December 6, an advocate for REDACTED’s parents appeared; no one appeared on behalf of the Department. The advocate reported that the parties continued to work towards a settlement in this matter. The matter was set down for a hearing on the merits on January 3, 2023 in the event that it was not settled.
On January 3, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Parent’s counsel presented an opening statement, but was unprepared to proceed further with the case. Proposed parents’ exhibits were reviewed, issues relating to the proposed exhibits were discussed (and these issues required the redisclosure and resubmission of the proposed exhibits), and legal issues relating to the case were discussed.
On February 6, counsel for REDACTED’s parents and counsel for the Department appeared. The Department presented an opening statement; the Department did not present the testimony of any witnesses or offer any documents in evidence. Parent testified, as did a witness from REDACTED. Counsel presented closing statements. At the conclusion of the hearing, counsel requested the opportunity to submit briefs with respect to the legal issues in the case. Leave was granted; counsel filed briefs on February 22, 2023. See IHO Exs. I, II.
The parties requested extensions of the compliance date, and written Orders of Extension were issued on November 2 and December 6, 2022, and January 3 and February 6, 2023. The reasons for granting the extensions are set forth in the Orders.
The record was closed on March 7, 2023, upon the Hearing Officer’s review and consideration of the parties’ closing briefs.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
REDACTED’s parent, through counsel, consented to the conduct of the hearing via videoconference and to the transmittal of this decision by email.
ISSUES
REDACTED’s parents seek funding for SEIT services and related services for REDACTED, who is parentally-placed in a non-public school. At the hearing, the Department did not present evidence to defend its IESP for REDACTED for the 2022-2023 school year. The issues to be resolved are therefore:
1. Did the Department offer REDACTED proper equitable services for the 2022-2023 school year?
2. Do the SEIT services and speech therapy provided by REDACTED address REDACTED’s special educational needs?
3. Does the balance of the equities favor REDACTED’s parents?
a. Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
b. Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED?
FINDINGS OF FACT
1. REDACTED is a REDACTED-year-old girl whose disability, for the purposes of the IDEA, is classified as speech and language impairment. Ex. D at 1.
2. REDACTED experiences delays in receptive and expressive language skills, articulation, vocabulary, phonological awareness, language processing, following multistep directions, social skills, cognitive skills, academics, and fine motor skills. Exs. D at 1-3, E at ⁋ 2.
3. On July 8, 2020, the CPSE convened a preschool IEP meeting for REDACTED. REDACTED’s mother participated in this meeting. Ex. B.
4. The CPSE recommended that REDACTED receive SEIT services (five hours per week in REDACTED) and speech-language therapy (three 30-minute sessions per week 1:1 in REDACTED). Ex. B at 1, 7.
5. The Department provided the preschool SEIT services and speech therapy to REDACTED at her school. Tr. 63.
6. The CSE convened a “turning-5” meeting for REDACTED on April 1, 2022. REDACTED’s mother participated in the meeting by telephone. Tr. 61; Ex. D.
7. REDACTED’s mother informed the CSE that REDACTED had benefitted from SEIT services and that REDACTED’s “word finding” had improved. Ex. D at 2.
8. The IESP includes goals in the areas of identifying letters, following three-step directions, developing understanding of one-to-one correspondence in math, understanding concepts of first-middle-last, phonological awareness, and speech and language skills. Ex. D at 5-9.
9. The CSE developed an IESP for REDACTED and recommended that she receive SETSS (three periods per week as a direct group service in REDACTED) and speech-language therapy (two 30-minute sessions per week individually in REDACTED and one 30-minute session per week in a group in REDACTED). Tr. 62; Ex. D at 10.
10. REDACTED’s parent entered into a “Letter of Agreement” with REDACTED. This document is dated August 11, 2022. Ex. G.
11. As per the Letter of Agreement, REDACTED agrees to provide “intensive special services” to REDACTED; REDACTED’s parent agrees to “seek payment” from the Department “for services rendered and to be paid directly to REDACTED;” and REDACTED’s parent “acknowledges and agrees that it is fully and completely the Parent’s responsibility to pay” REDACTED for services provided to REDACTED for which REDACTED has not received payment from the Department. Ex. G. 12. The Letter of Agreement does not specify the specific services that REDACTED will provide to REDACTED nor the costs of or rates for those services. Ex. G. 13. On August 28, 2022, REDACTED’s parent, through counsel, sent a letter identified as a “10-Day Notice of Private Placement” to the Department. Ex. C. In this letter, REDACTED’s parent expressed her concern about the IEP’s recommendations, noted that REDACTED had made progress with SEIT services, and informed the Department that she was placing REDACTED at REDACTED REDACTED and would seek payment for “special education program and related services” to be provided to REDACTED at REDACTED REDACTED. Ex. C. 14. This school year (2022-2023), REDACTED is a REDACTED student at REDACTED REDACTED, a general education/mainstream nonpublic religious school. Exs. A at 1, C; Tr. 60 15. In REDACTED this year, REDACTED has continued to receive SEIT services at school. Tr. 67-68, 72; Ex. G. REDACTED’s mother was unsure of the number of hours of SEIT services REDACTED was receiving this year, but stated that she believed it was between three and five hours per week. She believed that REDACTED was receiving two to three sessions per week of speech therapy. Tr. 72. 16. Based upon her conversations with REDACTED’s teachers and her own observations of REDACTED at home, REDACTED’s mother stated that the SEIT “is definitely what’s keeping [REDACTED] on pace” and that without the SEIT, REDACTED “would be falling back.” Tr. 67. 17. REDACTED provides services to approximately 1,000 students. Tr. 94. 18. The REDACTED supervisor who testified at the hearing did not recall ever having observed REDACTED at school. Tr. 93. 19. The REDACTED supervisor stated that there was no difference between SEIT and SETSS except that SEIT was “typically” provided to preschool students and SETSS was provided to school age students. Tr. 98. 20. Evidence of the goals the REDACTED providers were working on with REDACTED, or the nature and content of the educational and speech-related services provided to REDACTED, was not offered in evidence. A progress report is referenced in the affidavit of the REDACTED supervisor; such report was not offered in evidence. See Ex. F at ⁋ 20. 21. Parent did not offer evidence as to whether and/or how the services provided by REDACTED address REDACTED’s special educational needs or otherwise support her in the general education setting. 2 22. REDACTED charges $195.00 per hour for SETSS and $225.00 per hour for speech therapy. Tr. 71; Ex. F at ⁋ 10. 23. REDACTED’s parent asserts that “[p]aying for these services up front would pose extreme financial hardship for me. I would not be able to afford it without outside financial assistance.” Ex. E at ⁋ 10. These statements were not substantiated with documentation or other details about the family’s financial circumstances. [3]
2 The bald assertion that “[s]ervices are typically provided outside of the classroom. They are individualized sessions that include a great deal of specialized instruction” (Ex. F at ⁋ 21) is not useful evidentiary material and does not assist me in understanding REDACTED as a learner and how the REDACTED providers are meeting REDACTED’s needs as a learner. Similarly, the generic, conclusory, unsupported and unsubstantiated statement as to “signs” of REDACTED’s progress (Ex. F at ⁋ 23; see also ⁋ 16 above [Parent’s testimony]) do not constitute reliable and credible concerning progress upon which I can rely to draw conclusions about the suitability of REDACTED services for REDACTED. Furthermore, I should not speculate from review of the certifications of two special education teachers (Ex. H) that REDACTED services are meeting REDACTED’s needs.
24. REDACTED’s parent has not received a bill from REDACTED for services the agency has provided to REDACTED. Tr. 73.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013). The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).
A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or services selected by the parents are not approved by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement or other funding for services. See Florence County School District v. Carter, 510 U.S. 7 (1993). The State Review Officer has looked to the principles of the Burlington/Carter line of cases to analyze parents’ claims for payment for services secured by parents for their children who are parentally-placed in nonpublic schools. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 22-046 at 9-10. As a result, I proceed with the following analysis. Did the Department offer REDACTED proper equitable services for the 2022-2023 school year?
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.
In the instant case, I must also consider that REDACTED is a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1) (emphasis added). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.”
Id. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 21-
245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); Application of a Student with a Disability, Office of State Review Appeal No. 20-094; Application of a Student with a Disability, Office of State Review Appeal No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).
The Department argues that REDACTED, as a student with an IESP, is “not entitled to a FAPE standard” under federal law. IHO Ex. II at 2-3. The Department is correct in this statement; but this argument does not apply in this case because Section 3602-c creates rights for parentallyplaced students in New York that do not exist in federal law.
The Department also argues that Section 3602-c does not provide a child with a disability a right to a FAPE. IHO Ex. II at 4-6. This is a blunderbuss argument that does not reflect the text or the judicial and administrative interpretations of Section 3602-c. See, e.g., Bayshore Union Free Sch. Dist., 14 N.Y. 3d 289; New York State Education Department, Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c September 2007 (“Guidance Document”). The State Review Officer (“SRO”) has roundly and repeatedly disagreed with this position. See, e.g., Application of a Student with a Disability, Office of State Review Appeal No. 22-046; Application of a Student with a Disability, Appeal No. 21-245; Application of a Student with a Disability, Appeal No. 20-094; Application of a Student with a Disability, Appeal No. 20-087. The message is clear: students with disabilities who are parentally-placed in nonpublic schools “must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.” Guidance Document at Attachment 1, p. 11 (emphasis added).
In any event, all of this is water under the bridge because the Department did not take any evidentiary steps to defend its IESP for REDACTED and/or otherwise demonstrate that the services set forth in that document met REDACTED’s special educational needs. Since the Department did not avail itself of the opportunity to present evidence as to the offered services, it is unable to bear its burden of demonstrating that three periods per week of SETSS and speech therapy would meet REDACTED’s needs. Do the SEIT services and speech therapy provided by REDACTED address REDACTED’s special educational needs?
REDACTED’s parents have the burden of proof regarding the appropriateness of the SEIT services and speech-language therapy that they secured for REDACTED. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The standard of proof is a preponderance of the evidence.
To meet the above burden, REDACTED’s parents must show that the educational services they secured for REDACTED address her identified special education needs. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of a Child with a Disability, Appeal No. 22-046 at pp. 9-10. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.
This record contains limited information pertaining REDACTED’s needs other than what is described in the outdated IEP and the April 2022 IESP. The record evidence as to the SEIT services and speech therapy provided by REDACTED does not meet the Second Circuit’s “totality of the circumstances”/instruction “specially designed to meet the [child’s] unique needs” standards by the preponderance of the evidence. As in Appeal No. 22-046 (at pp. 13-14), the evidence does not explain what REDACTED’s providers did to specifically address REDACTED’s unique needs and how the services provided by these educators and therapists specifically benefitted REDACTED—other than the limited, generic statements that SEIT and speech therapy are provided outside of the classroom and are somehow “individualized.” This is not useful evidentiary material and does not explain how the REDACTED providers are meeting REDACTED’s special education needs. The generic, conclusory, unsupported and unsubstantiated statements—particularly in light of the absence of the progress report referenced in the REDACTED supervisor’s affidavit—as to alleged progress must similarly be accorded little to no weight.[4] As a result, REDACTED’s parent does not meet her burden as to the appropriateness of the SEIT services and speech therapy that she secured for REDACTED from REDACTED. Does the balance of the equities favor REDACTED’s parents?
Under a Burlington/Carter analysis, services which are determined as reimbursable or fundable are reimbursed or funded by the school district “unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced, or, in the case of direct funding, the parent has not demonstrated a legal obligation to pay the cost and an inability to do so.” Application of a Student with a Disability, No. 21-245 at p. 17 (emphasis added). In short, for direct funding, as requested in this case, there must be proof of both the parents’ legal obligation to pay for services provided to their child and their inability to pay for those services. Id. at pp. 17-18. See also, e.g., D.A. v. New York City Dept. of Educ., 769 F Supp. 2d 403, 430 (S.D.N.Y. 2011); Application of a Student with a Disability, No. 22-88 at pp. 11-12. Despite my “prong II” findings against REDACTED’s parent, I make the following “prong III” findings as to the equities.
(a) Do REDACTED’s parents have a legal obligation to pay REDACTED for services it provides to REDACTED?
In the instant matter, the agreement that REDACTED’s parent entered into with REDACTED obligated her to pay for services that REDACTED provided to REDACTED if the Department does not pay for the services. The agreement is poorly worded (such as its reference to “intensive special services”) and is missing important terms (such as the cost of the services and the number of hours of services). But one thing the agreement is clear on: that REDACTED’s parents are responsible to pay REDACTED for all services it provides to REDACTED for which the Department does not pay.
On the other hand, the lack of evidence of the actual provision of services by REDACTED to REDACTED is troubling. REDACTED’s parent is unsure of the services provided to REDACTED, and the REDACTED supervisor’s testimony was simply not reliable as to the services actually provided to REDACTED.
(b) Are REDACTED’s parents unable to pay REDACTED for services it provides to REDACTED?
The proof of “inability” to pay is scant (tax returns would be preferable), but I find REDACTED’s parent’s testimony, even though it was conclusory, on this issue credible. It is concerning that REDACTED’s parent has not paid anything to date for services from REDACTED. However, REDACTED’s parent meets (just barely) the requirements of D.A, 769 F Supp. 2d 403, for direct funding.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that: REDACTED’s parent’s requests for relief are denied.
SO ORDERED.
DATED: March 20, 2023
Jean Marie Brescia, 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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Numbe r of Letter Date Name of Document DPC 9/8/2022 7 pages
B. IEP 7/8/2020 10 pages
C. TDN 8/28/2022 3 pages
D. IESP 4/1/2022 13 pages
E. Affidavit of Parent 1/2/2023 3 pages
F. Affidavit of REDACTED REDACTED 12/20/2022 4 pages
G. Contract 8/11/2022 1 page
IHO EXHIBITS
I. 2/22/23 Parent’s Post Hearing Brief 5 pages IHO
II. 2/22/23 Department’s Post Hearing Brief 8 pages IHO
Footnotes
[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; the Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”
[3] Parent was represented by counsel; and while a hearing officer may “ask questions of counsel or witnesses for the purpose of clarification or completeness of the record,” my duty to maintain my impartiality prohibits me from turning my duty to develop the record into advocacy on behalf of one of the parties. See, e.g., 8 N.Y.C.R.R. §§ 200.1(x), 200.5(j)(3)(vii); see also New York State Manual for Administrative Law Judges and Hearing Officers (2002) at pp. 28-29, 35. I determined that, in the circumstances of this case, including REDACTED’s parent’s representation by counsel, my requesting evidence such as tax returns or other financial documentation (or requesting information such as the specifics of the provision of or the appropriateness of the educational and related services purportedly provided by REDACTED), would cause me to be acting as an advocate for one party rather than as an impartial hearing officer.
[4] Please see footnotes 2 and 3, above.