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NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
[REDACTED] a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 247437 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. 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], .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 [REDACTED] (“Student”). On April 14, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) (See P-A).
On April 17, 2023, the undersigned IHO was appointed to preside over this matter. On May 18, 2023, a prehearing conference was held in the above matter (See Exhibit IHO-1). On June 8, 2023, an impartial hearing on the merits of the DPC was held and continued to July 13, 2023, on which day it was completed.
By DPC dated April 14, 2023, the Parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2022-2023 school year and was seeking tuition and other forms of relief (see P-A). IV. Contempt and Sanctions
On April 17, 2023, an initial notice of these proceedings was sent to the Petitioner and District by the undersigned with a request for both parties to confirm dates for a conference and hearing (see IHO Exhibit II). The District failed to respond to any email during the scheduling process, failed to confirm its availability, and failed to provide a Notice of Appearance for a District representative assigned to this matter.
On May 18, 2023, at the scheduled Prehearing Conference, the DOE failed to have any representative appear at the Conference. As a result, on May 18, 2023, the undersigned issued a Prehearing Conference Summary and Order confirming the date and time of the hearing on the merits and issued an Order compelling the DOE to assign a representative to this matter and file Findings of Fact and Decision a Notice of Appearance, indicating on the Order that failure to comply may result in various sanctions, including the shifting of costs regardless of who ultimately prevails (see IHO Exhibit III; IV). The email with the two Orders sent to the parties on May 18, 2023, further confirmed in the body of the email that the hearing on the merits was scheduled for June 8, 2023, from 10:30am-2:30pm (see IHO Exhibit IV).
The DOE failed to respond to that email or comply with the Order to file a Notice of Appearance.
During the days leading up to the scheduled hearing on the merits, the Petitioner sent numerous emails to the DOE and copied the undersigned, seeking to obtain information on whether the DOE intended to cross examine the Petitioner’s proposed witnesses, noting the financial hardship to the parent in taking off work and appearing at these proceedings, all in a good faith attempt to expedite the hearing and ascertain some understanding of the District’s position (see IHO Exhibit V).
The DOE failed to respond to any of these emails. 1 On the day of the scheduled hearing, June 8, 2023, at approximately 9:27 a.m., the DOE attorney, in his first communication regarding this matter, sent an email to the parties indicating an alleged technical error in a previous attempt to disclose documents and included disclosures the DOE intended to offer for the hearing on the merits scheduled for June 8, 2023, at 10:30a.m. (see IHO Exhibit VI). The DOE Attorney, in a subsequent email that morning, then indicated that he had scheduled another matter during the time scheduled for this matter, citing various reasons for why the scheduling error occurred, neglecting to acknowledge any of the numerous correspondences that he was included on where the hearing date and time was referenced (id.).
At no point from the initial communication by the undersigned on April 17, 2023, until the hearing date on June 8, 2023, did a DOE representative seek to confirm the hearing date/time or seek to have it changed. It was not until the District’s initial email on June 8, 2023, that it even became apparent that an attorney was actually assigned to this matter. Additionally, in those two initial emails provided by the DOE attorney on the morning of June 8, 2023, the DOE attorney again failed to provide a Notice of Appearance in compliance with the previously issued Order.
In response to the District’s June 8, 2023, email, Petitioner’s counsel indicated an objection to the untimely disclosures and further voiced frustration for the DOE’s lack of response to previous outreach attempts, stating that “We reached out to [DOE Attorney] by email three times since June 1 to discuss witness cross examination and the joint stipulation of agreed-upon facts. We received no response.” (see IHO Exhibit VII).
At 10:30am on June 8, 2023, in an attorney’s only off-the-record conversation, the issues regarding the untimely evidentiary disclosure as well as the District’s conduct during these proceedings in failing to participate or comply with previously issued Orders was discussed at length. At the attorney’s only off-the-record conversation, the undersigned informed the District that the District was not in compliance with the previously issued Orders as the District had failed to file a Notice of Appearance or respond to any requests for information. The undersigned then indicated that the District would be held in contempt for failure to comply with the previously issued Orders and further informed the District that the undersigned was considering sanctioning the District for any delay by shifting the costs of this litigation to the District regardless of which party ultimately prevails, as had been previously indicated on the May 18, 2023, Order. The undersigned informed the District that the District may formally respond on the record to such a sanction once the matter commences later that morning. The matter was adjourned to 11:30am on June 8, 2023, on the Petitioner’s consent, to allow the Petitioner an opportunity to cure any defects in the untimely disclosure and to salvage the scheduled trial time so as not to further burden the parent.
At approximately 11:38 a.m., once the hearing had formally commenced, District counsel then emailed the undersigned a Notice of Appearance (see IHO Exhibit VIII). On the record, District counsel then boldly and disingenuously argued that the District was in compliance with the previously issued Order and therefore sanctions were not an appropriate punishment and further argued against the authority of a Hearing Officer to sanction a party. The District’s arguments were unpersuasive and the District’s position lacking in credibility.
Here, the District failed to comply with a previously issued Order until being found in contempt and threatened with sanctions. That the District then feebly attempted to cure their failure to comply only after being found in contempt and after being placed on notice that sanctions may be issued against the District, and then boldly arguing that the District was actually in full compliance with the Order, is not only disingenuous, but a disappointing tactic for an attorney to take. One would expect a more honorable course of conduct from an Officer of the Court, such as acknowledging any error or oversight with humility, humbleness, and contrition. Notwithstanding the District’s disingenuous arguments, I find the District failed to comply with a duly issued Order until after being noticed that the District was in contempt.
While such a failure to comply with one Order may appear on first blush to be a trivial slight, such an error would have understandably been forgiven but for the totality of the circumstances: the District’s failure to appear at the Prehearing Conference, its failure to respond to multiple requests for information from Petitioner’s counsel, its failure to respond to requests for confirmation from the undersigned hearing officer, its scheduling of other matters during the confirmed time for this matter despite being repeatedly noticed of the confirmed time for this matter; and the District’s disingenuous arguments at the hearing on the merits.
The District’s failure to timely provide disclosures and double-booking itself necessitated a considerable delay in the proceedings to allow the Petitioner an opportunity to cure any prejudice and reevaluate their case strategy, which contributed to the June 8, 2023, hearing’s inability to conclude in the time allotted, further inconveniencing witnesses who had confirmed their availability for that date in advance and were not able to appear due to time constraints Findings of Fact and Decision resulting in the District’s scheduling error, which then resulted in an additional day for continued testimony that was required to be scheduled over a month from the initial hearing date, which necessitated an extension of the compliance deadline, and further delayed the resolution of this matter for the Petitioner. The District’s failure to comply with the undersigned’s Prehearing Conference Summary and Order by developing a joint stipulation of facts with Petitioner’s counsel further resulted in an unnecessary delay to these proceedings. Finally, the District’s failure to respond to opposing counsel’s reasonable requests for confirmation of the District’s intent and position unnecessarily added layers of frustration and unprofessionalism to these proceedings.
The totality of the District’s conduct during these proceedings severely prejudiced the Petitioner and needlessly delayed the Petitioner’s timely resolution of these matters, warranting a finding of contempt against the District.
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. 2 However, a hearing officer has broad powers and discretion to manage the hearing process under the IDEA. 3 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. 4 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. 5 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. [6] 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. [7]
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. [8] Many states, however, do 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). 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. [9] Said authority is, therefore, implied. [10]
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 a hearing officer who is considering utilizing their discretion to impose sanctions upon any party or attorney in a civil action or proceeding. 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. And 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)).
Based on the above, I find that a New York State IDEA Hearing Officer has the authority to hold a party in contempt and issue sanctions.
Regarding the proposed sanction of cost shifting, at least one federal appellate court, the United States Court of Appeals for the Ninth Circuit, considering a separate issue regarding a district’s failure to respond to the complaint, found that it would be an appropriate remedy for an Administrative Law Judge to order the shifting of costs of the delay to the school district, regardless of who is ultimately the prevailing party (see M.C. v. Antelope Valley Union High 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). Sch. Dist., 858 F.3d 1189). Such holding from the Ninth Circuit adds further credence to the position that an Administrative Law Judge, or Hearing Officer, has the authority to find a party in contempt and issue sanctions for failure to comply with lawful directives.
I find here that the District’s actions throughout these proceedings, as outlined above, prejudiced the Petitioner, evinced a fundamental neglect of this matter, and resulted in an unnecessary delay to the efficient resolution of these proceedings, warranting a finding of contempt against the District.
Turning now to the issue of sanctions. Upon consideration of the totality of the circumstances and being particularly mindful that this was the first time that the District has failed to comply with an Order issued by the undersigned (though far from the first time the District has failed to appear and participate in other hearings), as an exercise of discretion and restraint, I am disinclined to impose punitive sanctions at this time. I have determined that despite my finding the District in contempt, a warning in this instance is an appropriate and sufficient reproachment.
However, it is not unforeseeable that in the future, on similar or more egregious facts, this Hearing Officer or another independent adjudicator may feel differently, may not exercise such discretion and restraint, 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 conduct, as well as the possible imposition of financial sanctions against the District. 11 V. The Five-Day Exclusionary Rule
State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other due process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). However, federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]). Further, State regulation provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" or issue a subpoena if necessary (8 NYCRR 200.5[j][3][xii][c]; see 8 NYCRR 200.5[j][3][iv]).
However, courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; see also Dell v. Bd. of Educ., 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).
Hearing officers are charged with making a determination of whether the student received a FAPE based on substantive grounds (20 U.S.C. § 1415[f][3][E][i]; 8 NYCRR 200.5[j][4][i]), and, if necessary, they must take steps to ensure that an adequate hearing record has been completed upon which to base a decision (see 8 NYCRR 200.5 [j][3][vii]).
On June 8, 2023, at approximately 9:27 a.m., the DOE attorney sent an email to the parties indicating a technical error in a previous attempt to disclose documents and included disclosures the DOE intended to offer for the hearing on the merits scheduled for 10:30 a.m. on June 8, 2023. In response to the District’s June 8, 2023, email, Petitioner’s counsel indicated an objection to the untimely disclosures. At 10:30am on June 8, 2023, in an attorney’s only off-the- record conversation, the issues regarding the untimely evidentiary disclosure was discussed.
The undersigned considered the positions of both parties, noted the Petitioner’s failure to provide the IEP in dispute that is referenced throughout the DPC in the Petitioner’s disclosures, as well as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding. The undersigned gave the Petitioner the option of adjourning the matter for another day, or to take as much time as the Petitioner deemed appropriate to review the untimely disclosures, cure any prejudice to her client, and then to proceed with the hearing. Petitioner indicated an intent to proceed but requested an adjournment until 11:30am to review the disclosures, reconsider her case strategy, and supplement her client’s direct testimony that was previously provided via affidavit. All of the Petitioner’s requests were granted.
For the reasons outlined above, after having considered the enumerated factors for admitting untimely evidence (specifically, the conditions resulting in the purportedly untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding), and after giving the Petitioner an opportunity to cure any prejudice, the undersigned admitted the offered documents as an exercise of discretion to ensure an adequate hearing record and to make a determination of whether the student received a FAPE based on substantive grounds.
VI. Findings of Fact
The student has a disability classification of Autism (DOE-1). The Committee on Special Education held an Individualized Education Plan (“IEP”) meeting on October 7, 2021, at which the DOE recommended a 12-1-1 class in a D75 school with a 12-month placement, as well as various related services and special transportation (DOE-1). The parent did not receive a school location letter (see 6.8.23 Tr. at pg. 24). The parent’s testimony was unrebutted.
Findings of Fact and Decision
On August 26, 2022, the parent submitted a Ten-Day Notice of Intent of Unilateral Enrollment notifying the Department of her intent to reenroll the student at The [REDACTED] Center Grammar School (“[REDACTED]”), effective September 12, 2022, and also informing the DOE that the DOE failed to recommend a school location after the IEP meeting, thus, the student had no placement for the 2022-2023 school year (P-C). On September 19, 2022, the parent received a Determination Report from the Department, stating that her 10-day notice of unilateral placement claim is not appropriate for settlement (P-E). VII. 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).
Findings of Fact and Decision
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 Findings of Fact and Decision 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 Findings of Fact and Decision 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). VIII. Additional Findings of Fact and Discussion
A. FAPE
Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for the 2022-2023 school year.
At the June 8, 2023, hearing on the merits, the District’s attorney contended that the DOE offered the student a FAPE, although the District was not presenting any witnesses in support of this position (6.8.23 Tr. at pg. 15). The District argued that the District could sustain its “Prong 1” burden without calling witnesses and by relying only on documentary evidence, citing to Application of a Student with a Disability, Appeal No. 23-005, for support.
At the outset, it bears noting that SRO Decisions, while offering valuable guidance, hold no precedential effect. Furthermore, the SRO decisions relied upon here by the District is distinguishable, as there are numerous substantive and factual distinctions between this matter and the cited matter. Specifically, Application of a Student with a Disability, Appeal No. 23- 005, found that “the available evidence in the hearing record proffered by the district led the IHO to find that the IEP adequately addressed the student's needs and that there was no contrary evidence that would rebut that conclusion…”
Here, having assessed the relative strengths and weaknesses of the evidence presented by both the District and the parent, it is clear that the parent has offered a substantial amount of contrary evidence and contradictory testimony to defeat the District’s claim that it offered this student a FAPE. This matter is not one of those "very few cases" in which the evidence was in equipoise (Schaffer, 546 U.S. at 58; M.H., 685 F.3d at 225 n.3).
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88). The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 2015 WL 2146092, at *3 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 2015 WL 1244298, at *3 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). Findings of Fact and Decision The Second Circuit has explained that when parents have rejected an offered program and unilaterally placed their child prior to implementation of the student's IEP, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013]) and that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187). Accordingly, when a parent brings a claim challenging the district's "choice of school, rather than the IEP itself . . . the appropriate forum for such a claim is 'a later proceeding' to show that the child was denied a free and appropriate public education 'because necessary services included in the IEP were not provided in practice'" (F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014], quoting R.E., 694 F.3d at 187 n.3). [12] Therefore, if the student never attends the public schools under the proposed IEP, there can be no denial of a FAPE due to the parent's suspicions that the district will be unable to implement the IEP (R.E., 694 F.3d at 195; see E.H., 2015 WL 2146092, at *3).
Regarding the parent's allegation that she was unable to obtain information about the assigned public school site due to the district's failure to recommend a school location, the United States Department of Education's Office of Special Education Programs (OSEP) has opined that the IDEA does not provide a general entitlement to parents of students with disabilities or their professional representatives to observe proposed school placement options for their children (Letter to Mamas, 42 IDELR 10 [OSEP 2004]; see G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1267 [11th Cir. 2012] [noting that rather than forbidding or mandating access for parents, "the process contemplates cooperation between parents and school administrators"]; J.B. v. New York City Dep't of Educ., 242 F. Supp. 3d 186, 195 [E.D.N.Y. 2017] [noting that the IDEA does not afford parents a right to visit an assigned school placement before the recommendation is finalized]; J.C. v New York City Dep't of Educ., 2015 WL 1499389, at *24 n.14 [S.D.N.Y. Mar. 31, 2015] [acknowledging that courts have rejected the argument that parents have a right under the IDEA to visit assigned schools and listing authority], aff'd, 643 Fed. App'x 31; E.A.M. v. New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012] [finding that a district has no obligation to allow a parent to visit an assigned school or proposed classroom before the recommendation is finalized or prior to the school year]; S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 [S.D.N.Y. Nov. 9, 2011] [same]).
On the other hand, there is district court authority indicating that a parent has a right to obtain information about an assigned public school site (see H.L. v. New York City Dep't of Educ., 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O., courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ., 2015 WL 5564446, at *11-*18 [S.D.N.Y. Sept. 21, 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ., 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ., 2014 WL 2207997, at *14-*16 [S.D.N.Y. May 27, 2014] [holding that "parents have the procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
Here, the parent informed the District in her 10-day notice, dated August 26, 2022, that “The Department failed to recommend a school location after the IEP meeting, thus, the student has no placement for the 2022-2023 school year” (P-C). This allegation was reiterated in the parent’s April 14, 2023, Due Process Complaint (P-A). Additionally, the parent’s unrebutted testimony at the hearing on the merits concludes unequivocally that the parent never received a school location letter. Despite that the parent's 10-day notice explicitly notified the District that the parent had not received a school location, the District did not respond to the parent or otherwise attempt to provide the parent with a school location letter for the purpose of the parent receiving more information concerning the assigned school site. On September 19, 2022, the District sent the parent a Determination Report stating that her 10-day notice of unilateral placement claim is not appropriate for settlement, instead of providing the parent with the school location letter that the District offered for the first time as an item of evidence during this hearing on the merits (P-E; DOE-3-10).
As a result, the District's failure to provide the parent with a recommended school location contributed to a denial of a FAPE to the student and resulted in the parent unilaterally placing the student in a private school.
In addition to failing to provide the parent with a school location letter, the parent also alleges various other substantive violations of FAPE, including that the placement recommendation in a D75 12:1:1 class is inappropriate (P-A). Although the burden of justifying the appropriateness of the District’s recommendations rests with the District, to support this allegation, the parent offered testimony from a Consulting Teacher that the parent raised concerns regarding the appropriateness of the placement, stating that the student “requires a structured, calm, and therapeutic environment in a setting where academics are scaffolded and modified to meet his specific needs and work can be differentiated to his specific grade level and that he requires a placement with an appropriate peer grouping of students to develop his social skills” (P-J-4). The Consulting Teacher further testified that no information was provided or discussed about the location of related services, despite the Consulting Teacher explaining the importance of integrating these services into the classroom for the Student to allow him to receive support with his occupational therapy and language needs in addition to his individual mandated sessions (P-J-5). The Consulting Teacher further testified that management needs were not discussed at the meeting, goals were not discussed, transition services were not discussed, the need for an alternative assessment was not discussed, the need for an assessment accommodation was not discussed, medical accommodations were not discussed, and that Findings of Fact and Decision different placement options were not discussed (P-J-5). None of the Consulting Teacher’s credible testimony was rebutted by the District and the District failed to offer any testimony as to the appropriateness of its recommendations.
The parent further alleges that the DOE relied on outdated evaluations and failed to conduct any reevaluations since 2015 (P-A). A review of the evidence supports the parent’s contention here (see DOE-1).
Under the IDEA, a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).
Here, the evaluations relied upon by the District were completed in 2015, six years before the creation of the October 2021 IEP (DOE-1). Furthermore, the evaluations cited to in the October 2021 IEP indicated that the information that can be drawn from them was very limited (DOE-1-1). The DOE offered no testimony or evidence as to why it failed to reevaluate this student with Autism. I find that this procedural violation contributed to the District’s denial of a
FAPE.
The parent further allege that the IEP’s goals are vague, unmeasurable, and not individualized for this Student (P-A). A review of the October 2021 IEP’s Measurable Annual Goals indicates that a majority of the goals are in fact vague and generalized. As an example, the goals include that the student will:
“improve his overall decoding skills” (DOE-1-8)
“improve his overall reading comprehension skills” (DOE-1-9)
“improve his overall number sense and operation skills” (DOE-1-10)
Findings of Fact and Decision
“improve his overall color, shape and pattern skills” (DOE-1-11)
“improve his emerging writing skills” (DOE-1-12)
“improve his beginning writing skills” (DOE-1-12)
“improve his overall word acquisition skills” (DOE-1-13)
“improve his overall decoding skills (DOE-1-14)
“improve his overall receptive language skills” (DOE-1-15)
“improve his overall expressive language skills” (DOE-1-16)
“improve his overall pragmatic language skills” (DOE-1-17)
“improve his overall speech production skills” (DOE-1-18)
“improve his overall social skills” (DOE-1-19)
“improve his overall gross motor and sensory based skills” (DOE-1-20)
“improve his overall handwriting, letter formation and construction skills” (DOE-1-21)
“improve his overall sensory processing, integration, and regulation skills” (DOE-1-21)
“improve his overall assisted daily living skills” (DOE-1-22)
“improve his overall strength, endurance and object manipulation skills” (DOE-1-23)
Despite the laundry list of overall skills that the student should improve, there is no indication or specific guidance for how the student should improve these goals or what the student should be doing to achieve these goals and improve his overall skills. These are merely vague and generalized goals which further contributed to the denial of a FAPE for this student.
The District’s feeble attempts at the hearing to assign blame for the creation of the goals on the private school evinces a fundamental lack of accountability on the part of the District, which maintains the ultimate responsibility for generating the goals contained within the CSE’s IEP for this student.
Notwithstanding the limited holding based on distinguishable facts in the non-precedential Application of a Student with a Disability, Appeal No. 23-005, it is worth noting here that a reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).
While certain limited circumstances may allow for the DOE to sustain its burden on substantial and persuasive documentary evidence alone, it is generally problematic and fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law where those documents are rife with double, triple and even unidentified hearsay sources that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, Findings of Fact and Decision N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).”
The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]). I find here that allowing the DOE to attempt to meet its burden of production and persuasion on documentary evidence alone would be so prejudicial to the Petitioner that it would deprive the Petitioner of a fair hearing.
Here, the DOE failed to offer any testimony to explain any of the reasoning behind the recommendations contained within the October 2021 IEP and failed to offer any witnesses to testify in support of the appropriateness of the October 2021 IEP or offer a cogent and responsive explanation for the District’s decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. The DOE also failed to offer any testimony to explain to this Hearing Officer why the proposed recommendations and goals within the IEP were appropriate for this Student in contradiction to the parent’s allegations contained within the DPC and as testified to by Petitioner’s witnesses. Furthermore, despite repeated failed attempts by the District’s attorney to have the parent admit to the contrary upon cross-examination, and despite the conclusory arguments to the contrary attempted by the District’s attorney at the hearing, the DOE here completely failed to offer any testimony or evidence to substantiate its baseless argument at trial that the Parent was in receipt of certain notices in light of the Parent’s unrebutted testimony that she had never received the purportedly supplied School Location Letter.
Relying only upon the silver-tongued wordplay of a clever attorney to advance unsupported positions instead of doing the work necessary to mount an appropriate defense is fatal to the District’s attempts to sustain its burden and prevail on the merits. It bears noting that the District could have easily supported its case by calling a District witness to testify to the provision of certain documents to the Parent. The District could have also provided evidence or testimony evincing a review of the District’s internal records to show that there was a record of such a document having been sent to the Parent. The District could have also called a member of the CSE team who was present at the IEP meeting to testify to the parent’s awareness and what information was communicated to her and her response to such, creating a credibility determination. The District could have further offered the testimony of a witness or expert in special education to testify that that the IEP created for this student was appropriate. Alas, consistent with its neglect of this matter prior to the hearing, the District here failed to do anything other than submit a few documents, rely upon a distinguishable SRO decision with little Findings of Fact and Decision factual bearing to the matter at hand, and fail at their attempts to prove their case through cross examination of the Petitioner’s witnesses.
Based on the above and the totality of the record before me, I find that the District failed to sustain its burden and therefore denied this student a FAPE for the 2022-2023 school year on both substantive and procedural grounds.
B. Unilateral Placement
In this case, as the District did not offer the student a FAPE for the 2022-2023 school year, the next issue to determine is whether the parent’s unilateral placement of the student at [REDACTED] during the 2022-2023 school year was appropriate.
The parent argues that [REDACTED] 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. For the reasons described below, I find that the parent’s unilateral placement was appropriate.
Under the circumstances of this case, where the District 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 [REDACTED] 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 Findings of Fact and Decision a Disability, Appeal No. 12-027). Moreover, because a "private placement need not provide . . . an IEP for the disabled student," [REDACTED] 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 [REDACTED] 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 [REDACTED] for the 2022-2023 school year.
1. The Student’s Needs
In this instance, although the student's needs were not disputed by the DOE, a discussion thereof provides context for the disputed issue to be resolved—namely, whether the student's unilateral placement at [REDACTED] was appropriate for the 2022-2023 school year.
Here, the October 2021 IEP classified the student with Autism (DOE-1). The parent’s unrebutted testimony via affidavit indicated that the student was diagnosed with autism when he was three years old (P-O). The outdated evaluations contained in the October 2021 IEP offers little guidance on the student’s needs (DOE-1). However, reports from the school included within the IEP indicate that the student is performing at a Kindergarten level in reading, writing, and mathematics (DOE-1-2).
A Consulting Teacher testified at these proceedings and stated that the Student “requires a structured, calm, and therapeutic environment in a setting where academics are scaffolded and modified to meet his specific needs and work can be differentiated to his specific grade level and that he requires a placement with an appropriate peer grouping of students to develop his social skills” (P-J-4).
2. [REDACTED]
The hearing record substantially supports a finding that [REDACTED] provides the student with specially designed instruction to address his identified academic needs and to enable the student to make progress (see generally P-H; P-J; P-K; P-L; P-M; P-P).
The Assistant Head of [REDACTED] testified at these proceedings (see generally P-P). The Assistant Head testified that [REDACTED] is an independent school for students who have a broad range of developmental and cognitive disabilities and whose students have a variety of disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills (P-P-2). The Assistant Head testified that [REDACTED]'s program is focused on addressing each student's current functioning levels, using a myriad of varying programs to meet our students' individual needs (P-P-2). The Findings of Fact and Decision Assistant Head further testified to being familiar with this student’s developmental profile and his specific educational needs (P-P-7). The Assistant Head testified at length to how [REDACTED] addresses this student’s academic deficits, his speech-language deficits, his social emotional needs, and his fine and gross motor needs (P-P-7-8). Finally, the Assistant Head testified that [REDACTED]'s programming is designed to serve students like this student who have significant, complex needs due to their developmental disabilities (P-P-8). 3. Progress
Although not dispositive, the hearing record also contains evidence to support a finding that the student made progress at [REDACTED] (see generally P-J; P-K; P-M; P-P).
With respect to the student's progress at [REDACTED], 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 [REDACTED] 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 [REDACTED] was an appropriate unilateral placement for the student.
C. Equitable Considerations
Having determined that the District failed to offer the student a FAPE for the 2022-2023 school year and that [REDACTED] constituted an appropriate unilateral placement for the student for the 2022-2023 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]).
Findings of Fact and Decision
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)).
Findings of Fact and Decision
On the record before me, I see no equitable factors that would weigh against full tuition reimbursement to the Parents. The Parent participated in the IEP meeting and entered evidence that they provided the District with Notice of the Parent’s intent to unilaterally place the student at [REDACTED] (DOE-1; P-C).
Furthermore, the District offered no testimony or evidence to rebut the parent’s assertions and made no arguments against a finding that the equities favored the parent.
D. Special Transportation Services
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).
Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
According to a guidance document, the CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate" ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf). Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance (see Donald B., 117 F.3d at 1375; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]).
Findings of Fact and Decision
Here, the special transportation and accommodations recommended by the October 2021 CSE included transportation from the closest safe curb location to school (DOE-1-30). As such, I find the student is entitled to the above special transportation services given that the DOE’s own CSE has recommended such transportation services.
The record is devoid of evidence or testimony regarding whether or not the District has previously arranged transportation for this Student throughout the 2022-2023 school year. The record is also devoid of evidence or testimony regarding any unilaterally obtained transportation services and any claimed reimbursement amounts. As such, I decline to order any retroactive reimbursement of out-of-pocket expenses that may have been incurred by the parent. To the extent the District has not previously provided such, the District will be ordered to arrange for special transportation as recommended within the student’s IEP on a going forward basis.
E. Cost of Breakfast and Lunch
The petitioner also requests an order to fund the costs of breakfast and lunch, including reimbursement for the 2022-2023 school year (P-A).
Upon a thorough review of the record, I find the record fails to contain adequate evidence to substantiate the parent’s request for funding or reimbursement for food. The record fails to contain adequate evidence that the student is not provided meals by [REDACTED] necessitating the parent provide the student with meals at the parent’s expense. To the contrary, there is evidence that [REDACTED] has a fully equipped kitchen (P-H-7). The record also fails to contain adequate evidence that any food that may be provided by [REDACTED] is not included in the cost of tuition and must be paid for by the parent entitling the parent to reimbursement based on the unilateral placement. The record also fails to contain any evidence or testimony about any amount of money expended for food by the parent of which the parent is seeking to be reimbursed.
Based on the above and due to a lack of adequate and appropriate evidence in the record, I decline to order reimbursement or direct funding for the cost of breakfast and lunch. 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 [REDACTED] was an appropriate unilateral placement for the student for the 2022-2023 school year, and the equities and the evidence in the hearing record supports a finding that the parent has demonstrated a legal obligation to pay the costs of tuition and an inability to do so necessitating an award of direct tuition payment to [REDACTED] (see P-F; P-N; P-O). [13]
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. X. Orders
IT IS HEREBY ORDERED that the District shall directly pay the student’s tuition at [REDACTED] School and Institute for the 2022-2023 school year in the amount of $85,850.00; and
IT IS FURTHER ORDERED that the District is to arrange for special transportation for this student from the closest safe curb location to school for the remainder of the 2022-2023 school year; and
IT IS FURTHER ORDERED that the District, if they have not done so already, is to conduct all necessary and legally required updated evaluations for this student and reconvene the CSE to generate an IEP for the 2023-2024 school year utilizing the updated evaluations.
DATED: SO ORDERED
7/26/2023 /s/ Dustin Johnson
Dustin Johnson, Esq., IHO
favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).
Findings of Fact and Decision
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.
Findings of Fact and Decision
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 were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
7/26/2023 /s/ Dustin Johnson
Dustin Johnson, Esq., IHO
EXHIBITS
Parent Date Title # of Pages Exhibit P-A 4/14/23 Complaint 4 P-B 4/14/23 Notice of Receipt 1 P-C 8/26/22 10 Day Notice 2 P-D 8/26/22 Notice of Receipt 1 P-E 9/19/22 Notice of Determination 1 P-F 8/23/22 Contract 3 P-G 5/30/23 Tuition Affidavit 1 P–H Undated Program Description 7 P–I 10/7/21 Notes 6 P-J 6/1/23 Affidavit [REDACTED] 6 P-K 6/17/22 Progress Report 23 P-L Undated Schedule 1 P-M 2/3/23 Progress Report 18 P-N 2/11/23 Tax Return 2 P-O 5/31/23 Affidavit [REDACTED] 4 P-P 6/1/23 Affidavit [REDACTED] 9 Findings of Fact and Decision P-Q Undated Resume 3 DOE Date Title # of Pages Exhibit 1 10/7/21 IEP 34 2 10/7/21 IEP Minutes 4 3 6/29/22 PWN and SLL 23 4 10/14/20 IEP 36 5 6/21 [REDACTED] Progress Report 16 IHO Date Title # of Pages Exhibit IHO-I 5/18/2023 Prehearing Conference Summary and Order 9 IHO-II Various Emails 6 IHO-III 5/18/23 Order 1 IHO-IV 5/18/23 Emails 4 IHO-V Various Emails 2 IHO-VI Various Emails 5 IHO-VII Various Emails 5 IHO-VIII 6/8/23 Email 1
Findings of Fact and Decision
Footnotes
[1] Through personal experience and anecdotal evidence, the New York City Department of Education regularly engages in the practice of failing to appoint representatives or attorneys to appear on behalf of the District at numerous Due Process Hearings, many of which proceed to litigation without the appearance of the NYC DOE. Whether or not the NYC DOE will appear and defend a case brought against them is often a guessing game, leading to frustrations and challenges for both the Petitioner in setting case strategy as well as the judiciary in scheduling. 3 Findings of Fact and Decision
[2] See Letter to Armstrong, 28 IDELR 303 (OSEP 1997).
[3] 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).
[4] 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).
[5] 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 5 Findings of Fact and Decision
[6] Letter to Armstrong, 28 I DELR 303 (OSEP 1997).
[7] Id.
[8] 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 6 Findings of Fact and Decision
[9] 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).
[10] 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"). 7 Findings of Fact and Decision
[11] see 22 NYCRR § 130 8 Findings of Fact and Decision
[12] The Second Circuit has held that a district's assignment of a student to a particular public school site is an administrative decision that must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (R.E., 694 F.3d at 191-92; T.Y. 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The district is required to implement the IEP and parents are well within their rights to compel a non-compliant district to adhere to the terms of the written plan (20 U.S.C. §§ 1401[9][D]; 1414[d][2]; 34 CFR 300.17[d]; 300.323; 8 NYCRR 200.4[e]). 14 Findings of Fact and Decision
[13] The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; see also Mr. and Mrs. A. v. New York City Dep't of Educ.,769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations 24 Findings of Fact and Decision