Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the Plaintiffs’ IDEA Brief in Chief, filed August 23, 2006 (Doc. 84); (ii) Plaintiffs’ Supplemental IDEA Brief, filed October 30, 2008 (Doc. 173)(“Plaintiffs Supp. Brief’); (iii) Defendant NMPED’s Pre-Hearing IDEA Answer Brief, filed October 4, 2006 (Doc. 92); and (iv) NMPED’s Post-Hearing IDEA Brief, filed November 3, 2008 (Doc. 181)(“Defen-dant’s Supp. Brief’). The Court held a two-day evidentiary hearing on whether to supplement the record on July 25, 2008 and August 1, 2008. The primary issues are: (i) whether the Administrative Appeal Officer (“AAO”) erred by failing to exercise jurisdiction over claims against the New Mexico Public Education Department (“NMPED”); (ii) whether the NMPED had a duty under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-82, to make certain that the Tularosa Municipal Schools, and if not Tularosa Schools, then the NMPED provided educational services to Matthew Chavez; and (iii) whether equitable relief should include reimbursement for Matthew Chavez’ mother’s efforts; injunctive, declaratory, and compensatory education, and systemic relief to ensure, across the State of New Mexico, an adequate continuum of alternative placements for Matthew Chavez as a student with autism. Because the AAO should have exercised jurisdiction over the claims against the NMPED during the administrative process, and because the NMPED was required to make certain that educational services were provided to Matthew Chavez, the Court finds that the NMPED denied Matthew Chavez a Free and Appropriate Public Education (“FAPE”). The Court declines to order systemic relief. The Court also finds that the remedies that Mr. Chavez and Ms. Nelson seek — compensatory education, $80,000.00, and an order that the NMPED install a hotline — are inappropriate. The Court finds that the harm that the NMPED caused, while real, is not amenable to a court-fashioned remedy. FACTUAL BACKGROUND The following facts are relevant to the Plaintiffs’ claim against the NMPED under the IDEA. Matthew is a sixteen-year-old public-school student who qualifies for receipt of special education based on autism. See First Amended Complaint ¶ 6, at 2-3, filed May 2, 2005 (Doc. 5)(stating that Matthew was twelve-years-old in 2005). Matthew, a high-functioning autistic student, has been eligible for special-education services beginning in preschool and continuing since that time. See Exhibit 1 to Memorandum of Defendant New Mexico Public Education Department in Support of Motion for Summary Judgment, filed August 24, 2006 (Doc. 81)(“Memo. in Support of Motion for Summary Judgment”), Decision of the Due Process Hearing Officer, Findings of Fact ¶2, at 7 (dated November 17, 2004) (“DPHO”). Matthew is capable of functioning academically at grade level. See DPHO, Finding of Fact ¶ 37, at 13. He also enjoys interaction with his peers. See DPHO, Finding of Fact ¶ 53, at 15. Matthew, however, “has difficulty attending schools, does not do well with transitions and change, needs clear structure and visual support in the school environment, and regresses behaviorally and academically when he misses school, all characteristics associated with the diagnosis of autism. TR 59, 61, 79, 165, 191, 336, 463, 466-467, 694, 899.” DPHO Finding of Fact ¶ 3, at 7. At all relevant times, Matthew has been a physically large boy, and his parents have been unable to physically redirect him since the end of his fifth-grade school year. See DPHO Finding of Fact ¶ 29, at 12. Matthew’s parents wanted him to attend school. See DPHO Finding of Fact ¶ 31, at 12. From 2003 until the spring of 2006, Matthew was enrolled in the Tularosa Municipal Schools. See id. Tularosa Schools had, however, no self-contained classrooms dedicated to instructing students such as Matthew Chavez apart from nondisabled students in the elementary or middle schools during the relevant years. See DPHO Finding of Fact ¶ 54, at 15. Moreover, the Tularosa Schools never placed a child in a residential treatment center during the special-education director’s tenure with Tularosa Schools. See DPHO Finding of Fact ¶ 51, at 15. Matthew’s 2002-2003 school year was “successful.” July 25 Tr. at 92:9-11 (Nelson). See Petitioner’s Exhibits, DPH Record, Tab 7, Letter from Simon and Beverly Chavez re: Request for an I.E.P. Meeting at 4 (dated September 10, 2003)(“Last year was an exceptional school year for our son. He attended school regularly and benefited greatly both academically and socially by his inclusion.”)(“IEP Request Letter”). Tularosa Schools had an educational program in place for Matthew during the 2003-2004 and 2004-2005 school years. See DPHO Findings of Fact ¶¶ 14, 26, 28, 36 ¶ 52, at 10,12-13 & 15. During parts of 2003-2004 and 2004-2005 school years, Matthew refused to attend school. See DPHO Findings of Fact ¶¶ 17, 20, 27, at 10-12; Exhibit 2 to Memo, in Support of Motion for Summary Judgment, Decision of the Administration Appeal Officer at 3 (dated March 4, 2005) (adopting the findings of fact of the DPHO Decision)(“AAO Decision”). Matthew’s “school aversion as manifested by his refusal to attend school [was] directly related to his disability of autism.” DPHO Finding of Fact ¶ 61, at 16. A dispute arose between Matthew’s parents, Plaintiffs Simon and Beverly Chavez, and Tularosa Schools over whether Tularosa Schools was obligated to cross the threshold of the home to provide services in the parents’ home to ensure that Matthew attended school. See DPHO Findings of Fact ¶¶ 24, 32 & 33, at 11, 13. Tularosa Schools placed Matthew in full-inclusion classes for his sixth-grade, 2003-2004, school year. In September of 2003, Matthew began to refuse to go to school. Regarding Matthew’s resistance to attending school, Matthew’s mother, Ms. Nelson, testified: He would not get out of bed. He urinated in bed because he wouldn’t get out to go to the toilet. He wouldn’t eat. He wouldn’t get dressed. When we would put his shirt on him physically, he would take it off and throw it. When we would force the shoe on his foot, he would kick it off. And if we were in the way, too bad, we got kicked. He would not walk out the door. We tried to physically walk him out the door. We could not. I tried bribing him. I told him if he would go to school, after school, we’d go to the mall and he could pick out a new game. I can’t afford that. I can’t buy him games every day to get him to school. He wouldn’t go. So as a consequence, he wasn’t allowed to watch TV. His behaviors were huge. He was turning over our kitchen table. He was throwing chairs. He was hitting me, pinching me, twisting skin. My husband tried to hold him down to hold him back. Transcript of Proceedings, Due Process Hearing at 989:4-25 (dated September 23, 2004)(“DPHO Tr.”). See DPHO Finding of Fact ¶ 20, at 11 (“Student refused to go to school after September 5, 2005 even though his family tried to bribe and ‘walk him.’ Student urinated in his bed, refused to eat and get dressed, turned over the family table and hit his parents.”). Matthew’s parents requested an Individualized Education Program (“IEP”) meeting, and one was held on September 16, 2003. At the IEP meeting, Mr. Chavez and Ms. Nelson requested a plan by which someone would come into their home to help them get Matthew to school. See Petitioner’s Exhibits, DPH Record, Tab 6, September 16, 2003 IEP at 2-3. Tularosa Schools made clear its position that, while it would provide transportation as a related service, it would not assign staff to go into the home to get Matthew to school. See DPHO Finding of Fact ¶ 24, at 11. Tularosa Schools did not take any steps to determine why Matthew was refusing to go to school, nor did it develop any interventions or provide homebound services. See DPHO Findings of Fact ¶¶ 25 & 35, at 12-13. Tularosa Schools did not provide an IEP, BIP, homebound program, or any other educational or related service to Matthew after October 2003. See DPHO Finding of Fact ¶ 41, at 14 and citations therein. Mr. Chavez and Ms. Nelson informed the NMPED of this dispute in an “informal letter of complaint.” Petitioner’s Exhibits, DPH Record, Tab 7, Letter of Complaint at 10-11. In that letter, Mr. Chavez and Ms. Nelson stated that Matthew refused to attend school and that Tularosa Schools refused to help them get him to school. See id. at 10. The letter also states that Matthew was dis-enrolled from school. See id. at 11. Tularosa Schools consulted with Duane Ellis, a state employee at the NMPED, regarding Matthew’s refusal to go to school, and Ellis provided copies of cases in which school districts were not required to cross the threshold of a home, thereby lending SEA validation to Tularosa Schools’ failure to provide any education. See DPHO Tr. at 228-229 (Dembrowsky). In addition to the NMPED affirming Tularosa Schools’ decision to withhold special education from Matthew after September 2003, the NMPED failed to take any action to assist the parents, despite their plea for help. On September 25, 2003, the parents mailed a certified letter to the New Mexico State Department of Education. See Exhibit 7 to DPHO, Letter to Department of Education at 10-11. That letter constituted notice to the NMPED that Tularosa Schools was not providing Matthew with a FAPE and was apparently incapable of providing him with FAPE. That letter states, in relevant part: Our son ... is a 6th grade student at Tularosa Middle School. Matthew’s ex-ceptionality is autism. We have been trying to work with the school district since August 26, 2003. Let us explain our concerns. Matthew displays many behaviors which are a component of his diagnosis. He is refusing to attend school. The Tularosa School District has refused to help us get him to school. Matthew’s behavior plan is outdated and the district has refused to modify it. ‡ ‡ ‡ Matthew has refused to go to school since August 26, 2003. We attempted to walk him and ended with us and Matthew in a heap on the ground and a child with autism screaming bloody murder. We cannot use [a former behavior-intervention tool]. We ask for an IEP meeting to address this. We attended an IEP meeting on Sept. 16, 2003. The school ... refused to modify Matthew’s behavior plan. They refused to send staff to help us.... In attendance were the Middle school principal ..., the Special Education Director ... and the schools lawyer.... We had been picking up Matthew’s school work on a daily basis and instructing him at home. Yesterday [the school-district special-education director] called to tell us there would be no more homework assignments for Matthew. Matthew had been dropped from school.... We look forward to hearing from you. Letter to Department of Education at 10-11. On May 25, 2004, Mr. Chavez and Ms. Nelson, pursuant to the IDEA and on Matthew’s behalf, filed an administrative due-process hearing complaint against the Tularosa Schools in May 2004, alleging that Matthew was denied a FAPE, 20 U.S.C. § 1401(8). See DPHO at 2. The complaint alleged claims against the Tularosa Schools and the NMPED for violation of the IDEA and Section 504 of the Rehabilitation Act. See id. The NMPED refused to participate in the Due Process Hearing, and the Due Process Hearing Officer, deferring to the NMPED’s institutional refusal to participate, refused to accept jurisdiction over the parents’ claims against the NMPED. Accordingly, the NMPED was not a party to the due-process hearing. See AAO Decision at 14-16. The Due Process Hearing Officer’s decision was issued on November 17, 2004. At the due-process hearing, Matthew prevailed on part of his claim against Tularosa Schools. See First Amended Complaint ¶¶ 1, 11, 15-16 & 63-64, at 1, 4-5 & 12. The DPHO found that Tularosa Schools had denied Matthew a FAPE. See DPHO at 26 (“This DPHO has found a denial of FAPE justifying an award of compensatory education for one year.”). The DPHO did not, however, find a violation of Section 504. See id. at 28. Tularosa Schools appealed the Due Process Hearing Officer’s determination that Matthew had been denied FAPE. Mr. Chavez and Ms. Nelson appealed the Due Process Hearing Officer’s determination that the Tularosa Schools’ conduct did not violate Section 504 and challenged the relief that the Due Process Hearing Officer ordered. The remedy that Mr. Chavez and Ms. Nelson sought from Tularosa Schools on appeal was “an order requiring the District to work closely with outside consultants and service providers with expertise in autism, and in behavior management techniques and approaches appropriate for children with autism.” AAO Decision at 3. In addition, Mr. Chavez and Ms. Nelson appealed the determination that the Due Process Hearing Officer lacked jurisdiction over claims against the NMPED. The Administrative Appeals Officer heard the appeal of the DPHO Decision. Matthew prevailed in his appeal to the AAO. See AAO Decision at 18-20; First Amended Complaint ¶¶ 1, 11, 15-16 & 63-64, at 1, 4-5 & 12. In her decision dated March 4, 2005, the AAO adopted the DPHO’s Conclusions of Law, except CL 17, 20, 33, and 34, and modified CL 18. See AAO Decision at 4-5. Regarding Conclusion of Law 17, the AAO stated: “[T]he facts of this case do not permit a broad conclusion about the extent of the District’s obligation in all cases where home services are sought based on a physical inability to attend school. To the extent the hearing officer’s discussion suggests such a broad conclusion, it is inappropriate.” AAO Decision at 4. The AAO modified Conclusion of Law 18 to read: “Student was denied FAPE in the 2003-2004 and 2004-2005 school year to date due to the District’s failure to amend the IEP to address Student’s refusal to attend school.” Id. at 4. Regarding Conclusions 33 and 34, the AAO held that “Section 504 of the Rehabilitation Act is violated virtually any time a student is denied a FAPE under the IDEA.... Therefore, the [AAO] concludes that the denial of a FAPE to Student also violated Section 504 and its implementing regulations.” Id. at 5. The AAO, in accepting the DPHO’s finding of fact in paragraph 41, determined that Tularosa Schools had failed to provide educational services to Matthew since October 2003. See DPHO Finding of Fact ¶ 41, at 14; AAO Decision at 3. She further found that Matthew was denied FAPE in the 2003-3004 and in the 2004-2005 school year because of Tularosa Schools’ failure to amend the IEP to address Matthew’s refusal to attend school. See AAO Decision at 3-5, DPHO Conclusion of Law ¶ 18, at 19. The AAO upheld the DPHO’s refusal to accept jurisdiction over the plaintiffs claims against the NMPED. There were no administrative findings of facts concerning the NMPED. See AAO Decision at 4; DPHO Conclusion of Law ¶ 3, at 17. The AAO upheld the determination that Matthew was denied FAPE and also determined that Tularosa Schools’ conduct violated Section 504, reversing the Due Process Hearing Officer on that issue. The AAO accordingly ordered additional remedies. In its March 4, 2005 decision, the AAO issued a twelve-point remedy specifically designed to address Matthew’s educational needs. See AAO Decision at 18-20. The AAO found that, “[a]t this time, it appears that the local education agency can implement the remedy ordered by the administration appeal officer for the Student.” AAO Decision at 16. In accordance with the AAO Decision, in the spring of 2005, Tularosa contracted with Southwest Autism Network (“SWAN”), a non-profit organization affiliated with the University of New Mexico, to be involved in the provision of educational services to Matthew. See Defendant’s Exhibit N to July 25, 2008 and August 1 Evidentiary Hearings, Puente Para Los Ninos Application at 4 (dated May 15, 2006). Also in accordance with the AAO Decision, SWAN put together a team of consultants with expertise in autism. See Transcript of Hearing on Motion for Preliminary Injunction at 55:8-56:14, 176:21-177:9, 178:7-179:3 (taken January 26, 2006)(“PI Tr.”); Exhibit 9 to Memo, in Support of Motion for Summary Judgment, Deposition of Patricia Osbourn at 77:5-80:21, 84:21-85:5 (taken March 23, 2006)(“0sbourn Depo.”)(Doc. 81-9). The SWAN team included an expert skilled in addressing the behavioral problems of children with autism. See Osbourn Depo. at 79:5-13. The SWAN team also included an expert in structuring educational services to children with autism. See id. at 79:14-80:21. In accordance with the AAO Decision, Dr. Brian Lopez of SWAN conducted a Functional Behavioral Assessment to determine the causes of Matthew’s school refusal. See Para Los Ninos Application at 4; Osbourn Depo. at 91: 2-11; PI Tr. at 179: 21-184:1. In accordance with the AAO Decision, Matthew attended school in the Tularosa Schools during the summer of 2005, the 2005-2006 school year, and the summer of 2006. See Exhibit A to Preliminary Injunction Hearing, Educational Program Summary at 2 (dated September 20, 2005); Exhibit 5 to Plaintiffs’ Motion for Stay-Put Order or Preliminary Injunction Against Defendants Tularosa and New Mexico Public Education Department and Memorandum in Support, filed December 21, 2005 (Doc. 37)(“PI Motion”); Para Los Ninos Application at 4. In August 2006, Matthew and his parents moved out of the Tularosa School District. See Exhibit 7 to Memo, in Support of Motion for Summary Judgment, Letter from Beverly Nelson to Dr. Keaton and John Russo at 1 (dated August 9, 2006). Matthew was not enrolled at Tularosa for 2006-2007 school year. Before this case, there were at least two cases that were filed in New Mexico federal district court against the NMPED involving children with disabilities in the autism spectrum related to failures of Local Educational Agencies (“LEA”) and the State to ensure special education services and appropriate placement options. See Carmady v. Rio Rancho Public Schools, No. CIV 04-1134 MV/RLP (D.N.M.); Board of Educ. of Los Lunas v. Aragon, No. CIV 03-0299 BB/LFG, 2003 WL 25678843 (D.N.M. Aug. 18, 2003). PROCEDURAL BACKGROUND Mr. Chavez and Ms. Nelson assert three claims against the NMPED pursuant to the IDEA. First, Mr. Chavez and Ms. Nelson allege that the NMPED is an agency of the State of New Mexico that monitors Tularosa Schools and other local school districts in the State for compliance with its rules and standards. See First Amended Complaint ¶ 8, at 3. Consequently, under the IDEA, the NMPED, as the SEA, may be directly responsible for the provision of education to students with disabilities pursuant to 20 U.S.C. § 1413(h)(1) and 34 C.F.R. § 300.360. Second, the NMPED knew that Matthew and other students in the autism spectrum with complex behavioral needs were not, and are not, being provided appropriate educational placements by the Tularosa Schools and other public school districts, and failed to act to require that an appropriate placement be provided or to offer an appropriate placement consistent with its obligations under IDEA and, as a result, Matthew was denied FAPE. Third, in violation of IDEA, the NMPED supported Tularosa Schools’ refusal to develop an appropriate program for Matthew, which constitutes an abdication of its supervisory responsibility to enforce IDEA in this state and to ensure that all children with disabilities are provided FAPE in accordance with the IDEA. Mr. Chavez and Ms. Nelson do not dispute that the remedy which the AAO ordered, if implemented, would provide Matthew with the education to which he is entitled. They “do not seek to halt or in any way delay the remedies ordered which they consider to be ‘stay put’ in this case.” First Amended Complaint ¶ 15, at 5. Rather, they seek “judicial enforcement or amendment of the administrative decision pursuant to the [IDEA].” Id. ¶ 1, at 1. There is no appeal by the NMPED of the evidence in the administrative proceedings or the findings against the Tularosa Schools and in favor of Mr. Chavez and Ms. Nelson. As part of this civil action, Mr. Chavez and Ms. Nelson obtained the NMPED’s written responses to discovery requests. Mr. Chavez and Ms. Nelson also took the depositions of state employees. On August 1, 2006, the Court, by order, provided for judicial review of IDEA issues by instructing the parties that briefing on these issues would be timely if filed on or before August 23, 2006. On August 23, 2006, Mr. Chavez and Ms. Nelson filed their IDEA Brief in Chief. Mr. Chavez and Ms. Nelson filed their Motion for Taking of Additional Evidence concurrently with their Brief in Chief. See Plaintiffs’ Motion for the Taking of Additional Evidence and Memorandum in Support Thereof, filed August 24, 2006 (Doc. 85) In that separated Motion, Mr. Chavez and Ms. Nelson requested a hearing on additional evidence relevant to their IDEA claim. Mr. Chavez and Ms. Nelson’s Brief-in-Chief addressed the proper interpretation and application of the IDEA. The parties requested the opportunity to submit additional briefing after any additional evidence was heard. See Joint Motion for Scheduling Order at 4-5, filed September 26, 2006 (Doc. 90). In their pre-hearing brief, Mr. Chavez and Ms. Nelson set forth a preliminary statement as to the limitations of argument. Mr. Chavez and Ms. Nelson argued that the granting of their Motion for Taking of Additional Evidence would allow them to present evidence in support of their claims against the NMPED. Mr. Chavez and Ms. Nelson maintained that their preliminary brief is based on the very limited evidence in the administrative record. See Plaintiffs’ Brief at 8. Mr. Chavez and Ms. Nelson did not offer the evidence acquired in this case in its brief in chief. Instead, Mr. Chavez and Ms. Nelson requested a full evidentiary hearing before the Court. Mr. Chavez and Ms. Nelson stated that, in this posture, any decision against Mr. Chavez and Ms. Nelson on IDEA claims against the NMPED would be premature until such time as the Court conducts an evidentiary hearing and allows Mr. Chavez and Ms. Nelson to fully present their evidence in support of their claims against the NMPED. See id. Specifically, Mr. Chavez and Ms. Nelson requested the opportunity to present evidence that the NMPED was fully aware that children with disabilities in the autism spectrum whose disabilities include complex behaviors are not being provided FAPE throughout the state. In addition, Mr. Chavez and Ms. Nelson sought to submit evidence that the NMPED knew or should have known that Tularosa Schools had no self-contained classroom and had not placed a student in a residential private school. Mr. Chavez and Ms. Nelson also requested the taking of additional evidence regarding the lack of appropriate placements available to Matthew in New Mexico. Mr. Chavez and Ms. Nelson further represented that they would show, by additional evidence, that the NMPED was fully aware of the AAO’s order as well as Tularosa School’s noncompliance, and failed to act to require enforcement consistent with its supervisory and responsibility for direct service. On October 4, 2006, the NMPED submitted a pre-hearing answer brief on Mr. Chavez and Ms. Nelson’s claim under the IDEA. The NMPED did not object to Mr. Chavez and Ms. Nelson’s motion for a hearing on additional evidence relevant to Mr. Chavez and Ms. Nelson’s IDEA claim. The pre-hearing brief set forth the NMPED’s position on Mr. Chavez and Ms. Nelson’s IDEA claim based on the evidence then of record or known to the NMPED through discovery in this action. In the NMPED’s Pre-Hearing IDEA Answer Brief, the NMPED stated that it anticipated submitting a post-hearing brief setting forth its final response to Mr. Chavez and Ms. Nelson’s IDEA Brief-in-Chief and position on Mr. Chavez and Ms. Nelson’s IDEA claim. The Court held a two-day evidentiary hearing on July 25, 2008 and August 1, 2008. At the hearing, the parties stated that they wished to supplement the record with the exhibits that they would be offering at the hearing. See Transcript of Evidentiary Hearing at 37:3-9 (July 25, 2008)(Doc. 157)(“July 25 Tr.”)(Court, Stewart & Wechsler). At the hearing, the Court explained its procedure for handling the exhibits. The Court’s admission of exhibits for purposes of the hearing did not reflect a determination that the Court would supplement the record with those exhibits. See July 25 Tr. at 35:10-14 (Court). Mr. Chavez and Ms. Nelson asserted at the Evidentiary Hearing that their evidence would establish that “as of the receipt of the September 23 letter and the subsequent phone call, the department had reason to know that the child was not in school.” July 25 Tr. at 30:14-18 (Stewart). The NMPED stated that there is no direct role it can play in the administrative hearings because these hearings raise issues of direct services, which the local districts must provide. See July 25 Tr. at 22:19-25 (Wechsler). Thus, the NMPED is required to step in and provide direct services only where there has been a finding from the state that there has been a failure. See id. at 33:22-25 (Wechsler). Moreover, the NMPED accepts that, with regard to Tularosa Schools, the AAO’s determination was correct. See id. at 34:3-5 (Wechsler). Since the hearing, the parties have submitted supplemental briefing. See Plaintiffs’ Supp. Brief; Defendant’s Supp. Brief. In their brief, Mr. Chavez and Ms. Nelson argue that the evidence that they presented at the evidentiary hearings establishes that (i) the NMPED had notice that Matthew Chavez was a child with a disability who was being excluded from school as a result of his disability; and (ii) the NMPED’s actions and inactions failed to insure that Matthew Chavez received FAPE as required under the IDEA. See Plaintiffs’ Supp. Brief at 1. Mr. Chavez and Ms. Nelson also contend that they have offered evidence that, on a “more ‘macro’ level, the NMPED did not have any ‘systems’ in place calculated to ensure that Matthew would receive FAPE.” Id. at 2. Thus, they argue that the NMPED’s system of monitoring during the 2003-2004 and 2004-2005 school years were not calculated to ensure appropriate supervision of Tularosa Schools. See id. Furthermore, Mr. Chavez and Ms. Nelson argue that they have presented evidence that the NMPED knew that a small school district like Tularosa Schools was not able to respond to the needs of children with autism, especially when those needs resulted in behavioral concerns. See id. Mr. Chavez and Ms. Nelson ask the Court to use its “broad authority to determine equitable relief under IDEA” and note that the IDEA authorizes courts to “ ‘grant such relief as the court determines is appropriate.’ ” Id. at 9 (quoting 20 U.S.C. § 1415(i)(2)(C)(iii) (IDEA 1997); 20 U.S.C. § 1415(i)(2)(C)(iii) (IDEA 2004)). Pursuant to this equitable authority, Mr. Chavez and Ms. Nelson request that the Court grant $80,000.00 in reimbursement for Ms. Nelson’s services in home schooling her son during the 2003-2004 and 2004-2005 school years. See Plaintiffs’ Supp. Brief at 11. They also request that the Court “require NMPED establish a hotline number so that parents whose children with disabilities are not able to attend school can contact NMPED to request assistance from NMPED.” Id. at 12. The NMPED, on the other hand, contends that Mr. Chavez and Ms. Nelson received a remedy for compensatory educational services and are not entitled to any further remedy. See Defendant’s Supp. Brief at 11. The NMPED argues that the Court’s Memorandum Opinion and Order of October 19, 2006 (Doc. 96)(“Oct. 19 MOO”) implicitly obviates a determination whether the NMPED was subject to jurisdiction in the administrative hearing because the Court held that Mr. Chavez and Ms. Nelson were not required to exhaust the State Complaint Review Procedure. Id. at 13. The NMPED also argues that the Court’s scope of review is limited to its appellate review of the due-process hearing under 20 U.S.C. § 1415 because the DPHO decision and the AAO decision were issued pursuant to that section of the statute. See Defendant’s Supp. Brief at 13. The NMPED argues that it is not liable for further relief to Matthew Chavez for three reasons: (i) Mr. Chavez and Ms. Nelson have failed to show that Tularosa Schools was unable to provide a FAPE to Matthew Chavez; (ii) even if Tularosa Schools were unable to provide FAPE, Mr. Chavez and Ms. Nelson have failed to provide adequate notice and a reasonable opportunity to compel compliance; and (iii) Mr. Chavez and Ms. Nelson have failed to establish that any alleged deficiency in the NMPED’s monitoring resulted in a denial of FAPE to Matthew Chavez. See Defendant’s Supp. Brief at 14. Rather, they argue, Matthew Chavez has received the educational benefits to which he is entitled under the IDEA. See id. The NMPED also presents policy arguments to explain why judgment in Mr. Chavez and Ms. Nelson’s favor would impose financial and administrative burdens on the NMPED that Congress never intended. See id. at 30. Mr. Chavez and Ms. Nelson’s remaining claims, including claims the ADA and under Section 504 of the Rehabilitation Act, provide for the right to a jury trial. The Court will not address these claims in this opinion. LAW REGARDING THE IDEA The IDEA provides a comprehensive scheme to ensure provision of special education to students with disabilities. IDEA’S overarching purpose is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). IDEA has seen multiple amendments, including a recent amendment effective July 2005. IDEA as amended in 1997 governs this case. It has been recognized that the statutory scheme now called the IDEA embodies “a strong federal policy to provide an appropriate education for every [disabled] child.” Kruelle v. New Castle County School District, 642 F.2d 687, 690 (3d Cir.1981). The United States Court of Appeals for the Third Circuit in Kruelle v. New Castle County School District cites various passages of legislative history in explaining that Congress passed the Act to further three interrelated purposes. See 642 F.2d at 690. First, “Congress sought to secure by legislation the right to a publically supported equal educational opportunity which it perceived to be mandated by Brown v. Board of Education, and explicitly guaranteed with respect to handicapped children by two seminal federal cases, Pennsylvania Association for Retarded Children v. Pennsylvania and Mills v. Board of Education.” Kruelle v. New Castle County School District, 642 F.2d at 690-91 (citing S.Rep. No. 168, 94th Congress, 1st Sess. 6, reprinted in U.S.Code Cong. & AdmimNews 1425, 1430)(legislative history of Education Act, P.L. 94-142)(footnote omitted). Second, “Congress intended the provision of education services to increase the personal independence and enhance the productive capacities of handicapped citizens.” Kruelle v. New Castle County School District, 642 F.2d at 691 (citation and footnote omitted). Third, Congress “acknowledged the need for an expanded federal fiscal role to aid state compliance with the court decisions and to assure protection for the rights of handicapped children.” Id. According to the Third Circuit in Kruelle v. New Castle County School District, Congress employed a cost-benefit philosophy and decided that, “[i]n-stead of saddling the public agencies and taxpayers with the enormous expenditures necessary to maintain the handicapped as lifelong dependents in a minimally acceptable institutionalized, existence, Congress reasoned that the early injection of federal money and provision of educational services would remove this burden by creating productive citizens.” Id. (citing S.Rep. No. 168, 94th Congress, 1st Sess., reprinted in U.S.Code Cong. & AdmimNews, 1425, 1434). 1. Basic Structures of the IDEA. The IDEA is, on the surface, a funding statute. The Supreme Court of the United States has pointed out, however, that it “confers upon disabled students an enforceable substantive right to public education in participating States.” Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IDEA is administered through the Office of Special Education Programming (“OSEP”) of the United States Department of Education. See 20 U.S.C. §§ 1406, 1417. States decide whether to participate in the IDEA and accept the funds that it provides. At present, all states participate. New Mexico was the last state to accept federal funding under the IDEA. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183-184, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The IDEA defines the term “free appropriate public education”: The terms “free and appropriate public education” means special education and related services that— (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (B) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education programs required under section 1414(d) of [IDEA], 20 U.S.C. § 1401(8). See 34 C.F.R. § 300.13. The Supreme Court has not spoken definitely about whether, as a result of states’ responsibilities under the IDEA, district courts may require SAEs to provide services directly to disabled children when the LEA has failed to do so. In Honig v. Doe, the Supreme Court divided equally on the question. See 484 U.S. at 607, 108 S.Ct. 838 (affirming, through an equally divided panel, the circuit court’s ruling in Doe by Gonzales v. Maher, 793 F.2d 1470, 1491-92 (9th Cir.1986), that district courts may order SAEs to provide direct services). The United States Court of Appeals for the Ninth Circuit in Doe by Gonzales v. Maher held that a SEA is responsible for-directly providing a child with FAPE when: (i) the LEA has breached its responsibility of providing services to the child; (ii) the SEA had notice of non-compliance; and (iii) the SEA had a reasonable opportunity to compel compliance before relief was ordered against the state. See 793 F.2d at 1491-92. The Ninth Circuit, in Doe by Gonzales v. Maher, interpreted the text of the relevant statute, explaining: Although the state stresses the language in 20 U.S.C. § 1414(d)(1) (1982) that speaks of the state’s responsibility for direct action when the locality fails to maintain “programs” of free appropriate education, section 1414(d)(3) specifically requires direct action when a local education agency “has one or more handicapped children who can best be served by a regional or State center designed to meet the needs of such children.” Id. § 1414(d)(3) (emphasis added). It would seem incontrovertable [sic] that, whenever the local agency refuses or wrongfully neglects to provide a handicapped child with a free appropriate education, that child “can best be served” on the regional or state level. See Kruelle v. New Castle County School District, 642 F.2d 687, 696-99 (3d Cir.1981) (holding that the district court did not err in assigning to the state board of education the responsibility of providing a child with an appropriate public education); Georgia Association of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981) (holding that 20 U.S.C. § 1414(d) places the responsibility on the state educational agency either to make sure that local agencies provide adequate educational services to handicapped children, or to provide directly such services themselves), aff'd, 716 F.2d 1565 (11th Cir.1983), vacated on other grounds, 468 U.S. 1213, 104 S.Ct. 3581, 82 L.Ed.2d 880 (1984); cf. S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir.) (Unit B) (holding that a state agency can be enjoined to intervene directly in a local expulsion proceeding), cert. denied, 454 U.S. 1030, 102 S.Ct. 566, 70 L.Ed.2d 473 (1981). Doe by Gonzales v. Maher, 793 F.2d at 1491-92. As of 1997, Congress revised the statutory language to which the Ninth Circuit referred in Doe by Gonzales v. Maher and moved it to another section. The statute’s language now reads: A State educational agency shall use the payments that would otherwise have been available to a local educational agency or to a State agency to provide special education and related services directly to children with disabilities residing in the area served by that local educational agency, or for whom that State agency is responsible, if the State educational agency determines that the local educational agency or State agency, as the case may be— (A) has not provided the information needed to establish the eligibility of such local educational agency or State agency under this section; (B) is unable to establish and maintain programs of free appropriate public education that meet the requirements of subsection (a) of this section; (C) is unable or unwilling to be consolidated with 1 or more local educational agencies in order to establish and maintain such programs; or (C) has 1 or more children with disabilities who can best be served by a regional or State program or service delivery system designed to meet the needs of such children. (2) Manner and location of education and services The State educational agency may provide special education and related services under paragraph (1) in such manner and at such locations (including regional or State centers) as the State educational agency considers appropriate. Such education and services shall be provided in accordance with this subchapter. 20 U.S.C. § 1413(g)(l)(2005). The differences in organization in wording are not significant, and the reasoning in Doe by Gonzales v. Maher remains unaffected. The language upon which the Ninth Circuit relied — the language that calls for direct services when there is a student “who can best be served by a regional or State program”- — remains in the statute. In Doe by Gonzales v. Maher, the Ninth Circuit also said the state was on notice when the child’s parents or guardians gave “the responsible state officials adequate notice of the local agency’s noncompliance [with IDEA requirements].” 793 F.2d at 1492. The Ninth Circuit did not further specify what form this adequate notice must take, and did not imply that parents must wait until the LEA has failed to comply with a due-process hearing officer’s order or that there must be a due-process hearing before the state incurs any responsibility. Given that the Supreme Court, in an equally divided panel, affirmed the judgment on the issue whether “a court may order a State to provide services directly to a disabled child where the local agency has failed to do so,” Honig v. Doe, 484 U.S. at 329, 108 S.Ct. 592, the reasoning in Doe by Gonzales v. Maher did not become binding on the other circuits. See Honig v. Doe, 484 U.S. at 329, 108 S.Ct. 592 (“Because we are equally divided on the question whether a court may order a State to provide services directly to a disabled child where the local agency has failed to do so, we affirm the Court of Appeals’ judgment on this issue as well.”). The Supreme Court has stated that affirmance by an equally divided court does not have precedential value and does not settle any question of law. See Neil v. Biggers, 409 U.S. 188, 191-92, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L.Ed. 419 (1826)(stating “the principles of law which have been argued, cannot be settled; but' the judgment is affirmed, the court being divided in opinion upon it”). The reasoning in Doe by Gonzales v. Maher is therefore not binding upon the Court, and the Court uses it only as persuasive authority. Courts have ordered the SEAs to step in and provide direct services when an LEA is .unable or unwilling to do so. See Kruelle v. New Castle County School District, 642 F.2d at 699 (explaining that state was responsible for providing residential program for disabled child when the LEA could not provide the necessary program); St. Tammany Parish School Bd. v. State of Louisiana, 142 F.3d 776, 785 (5th Cir.1998)(stating that the SEA is responsible for paying the cost of interim residential placement when the LEA was unable to provide adequate services for an autistic child). District courts have broad discretion to order the relief appropriate to ensure that the child is provided with FAPE, which includes ordering remedies against the SEA when necessary. See Gadsby v. Grasmick, 109 F.3d 940, 954-55 (4th Cir.1997). In Kruelle v. New Castle County School District, the United States Court of Appeals for the Third Circuit ordered the SEA to provide residential placement for a disabled child who had been denied FAPE because the district school was unable to meet his educational needs. See 642 F.2d at 696. Likewise, in St. Tammany Parish v. State of Louisiana, the United States Court of Appeals for the Fifth Circuit held that nothing in IDEA prevents courts from holding the SEA liable for equitable relief and that the court has discretion to assign such liability to the SEA. See 142 F.3d at 784, Under the IDEA, once the LEA is unable to provide FAPE, the SEA can be elevated to the public agency that “may be” responsible for providing direct services to the student. See 34 C.F.R. §§ 300.360 to 300.372. The SEA, not the LEA, is responsible for assuring that every child disabled within the meaning of the IDEA is provided with FAPE. See Beard v. Teska, 31 F.3d 942, 953 (10th Cir.1994), abrogated on other grounds by Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept, of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 784 (5th Cir.1998). Thus, the SEA is not solely a supervisory agency, but is rather the “central point of accountability”: for ensuring that students receive FAPE. See Kruelle v. New Castle County Sch. Dist., 642 F.2d at 697. The IDEA confers an “enforceable substantive right to public education.” Honig v. Doe, 484 U.S. at 310, 108 S.Ct. 592 (referencing Board of Education of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 176 n. 1, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Through the IDEA, Congress chose a highly detailed procedural scheme to ensure that children with disabilities receive the special education and related services they need. See Board of Education of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. at 205-206, 102 S.Ct. 3034. The Honorable Christina Armijo, United States District Judge for the District of New Mexico, has recognized that the IDEA scheme of ensuring that all children with disabilities receive a FAPE involves parents, schools, and states: “The IDEA additionally envisions a collaborative effort by which parents, educators, state and others work together not just to create a personalized IEP through which the individual child will receive the free appropriate public education to which he or she is entitled, but also to effect systemic change.” Sanders v. Santa Fe Public Schools, 383 F.Supp.2d 1305,1310 (D.N.M.2004). The NMPED is the SAE for New Mexico. The AAO acts for it as the final state administrative review for IDEA due process. See 20 U.S.C. § 1415(g). The burden of proof at an IDEA administrative hearing is on the party challenging an IEP or otherwise seeking relief. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005)(“The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.”). The IDEA regulations define autism in pertinent part as a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. 34 C.F.R. § 300.7(e)(1)© (2006). 2.Standard of Review for IDEA Administrative Decisions. The United States District Court undertakes a “modified de novo” review of the underlying IDEA administrative decisions. Erickson v. APS, 199 F.3d 1116, 1120 (10th Cir.1999). The district court must “independently review the evidence contained in the administrative record, accept and review additional evidence if necessary, and make a decision based on a preponderance of the evidence, while giving ‘due weight’ to the administrative proceedings below.” Murray v. Montrose County Sch. Dist. RE-lJ, 51 F.3d 921, 927 (10th Cir.1995). In the context of New Mexico’s two-tier system of IDEA administrative proceedings, the United States Court of Appeals for the Tenth Circuit recognized the difficulty that can arise when the DPHO and the AAO — or their equivalents in other states — disagree as to findings of fact. The Tenth Circuit has directed that the district court is to give due weight to the AAO’s decision on issues with which he or she disagreed with the DPHO unless the DPHO’s decisions rested on credibility determinations. See Erickson v. APS, 100 F.3d at 1121. The district court reviewing the final state administrative IDEA decision reviews questions of law de novo. See O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 288, 144 F.3d 692, 698 (10th Cir.1998). 3. Supplementation of the Administrative Record. The IDEA provides that the need for additional evidence is within the court’s discretion. The IDEA apparently requires, however, an evidentiary hearing to determine what evidence the court should consider adding to the record. See 20 U.S.C. § 1415(i)(2)(C)(ii)(stating that the court “shall hear additional evidence at the request of a party”). In light of this mandatory language, the Court observes that there is some tension between 20 U.S.C. § 1415(i)(2)(C)(ii) and the exhaustion requirement under the IDEA. The Court believes, however, that the tension is resolved through the “modified de novo review” of the Plaintiffs’ IDEA claims. Murray v. Montrose County Sch. Dist. RE-IJ, 51 F.3d 921, 927 (10th Cir.l995)(explaining that “[t]he district court must therefore independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving ‘due weight’ to the administrative proceedings below.”). 4. Enforcing Administrative Orders Under the IDEA. In its October 19, 2006 MOO, the Court considered at length whether a party can bring an action to enforce the administrative decision. The Court agreed with Honorable Christina J. Armijo, United States District Judge, who explained, in Miller v. Board of Education of the Albuquerque Public Schools: The Court also must keep in mind that this case presents an unusual situation where the Plaintiffs are appealing from an administrative proceeding at which they prevailed and received some form of equitable relief as to most of the substantive issues.... [T]he IDEA does not give Plaintiffs the right to bring a civil action for judicial review of the administrative proceedings conducted pursuant to that statute unless and until they are “aggrieved” by the result of those proceedings. See 20 U.S.C. § 1415(i)(2)(A); Robinson v. Pinderhughes, 810 F.2d 1270, 1275 (4th Cir. 1987). It follows that there is no basis for the Court to review evidentiary rulings with respect to those issues on which the AAO found in Plaintiffs’ favor and awarded adequate relief. * * * * That a student is aggrieved by a school district’s failure to comply with an administrative tribunal’s decision in favor of the student is a separate and distinct claim that may rest on an entirely different legal theory than the relatively straightforward IDEA.... See, e.g., Robinson, 810 F.2d at 1274-75 (concluding that such non-compliance can be addressed under 42 U.S.C. § 1983). 2006 WL 2786759 at **14, 16. See Oct. 19 MOO at 14. The Court also declined to decide whether Tenth Circuit law would allow a party to bring an action under 42 U.S.C. § 1983 to enforce compliance with an administrative order that was not being implemented. See Oct. 19 MOO at 14 & 19 (“The Tenth Circuit might well find, if the issue was presented to it, that, because, the Plaintiffs have exhausted all administrative remedies and the state has still not complied with the final order, § 1983 is available in such a limited situation.”). ANALYSIS Regarding the IDEA claim against the NMPED, the Court now finds that the NMPED breached its duties under the IDEA to provide Matthew Chavez with FAPE for the 2003-2004 and 2004-2005 school years. Specifically, the NMPED had adequate notice that Matthew Chavez was not receiving any educational services and that Tularosa Schools was violating its duties. Rather than taking measures to compel Tularosa Schools to come into compliance with the IDEA, the NMPED took the stance that it need do nothing. The NMPED cannot properly wash its hands of its responsibility to make certain that Matthew Chavez was provided direct services. While the Court finds that NMPED violated the IDEA, the Court also finds that this case does not present circumstances under which the Court can fashion an appropriate remedy. Thus, the Court will not grant a remedy. I. THE SCOPE OF THE RECORD. The Court must “independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving ‘due weight’ to the administrative proceedings below.” Murray v. Montrose County Sch. Dist. RE-IJ, 51 F.3d at 927. When the Court received additional evidence, it explicitly refrained from ruling on which evidence would become part of the record and which evidence would be disregarded. The Court has reviewed the administrative record, and has relied primarily on that record. The Court has, however, considered other argument, testimony, and exhibits that the parties have proffered since the creation of the administrative record. Specifically, the Court considered the following in addition to what is contained in the original administrative record: (i) July 25, 2008 Tr. at 22:19-25 (arguing that “there is no role for the NMPED to play in the administrative process”)(Wechsler); 30:14-18 (arguing that “as of the receipt of the September 23 letter and the subsequent phone call, the department had reason to know that the child was not in school”)(Stewart); 33:22-25 (arguing that the NMPED is required to step in and provide direct services only where there has been a finding from the state that there has been a failure)(Wechsler); 34:3-5 (conceding that, with regard to Tularosa Schools, the AAO’s determination was correct)(Wechsler); 35:10-14 (noting that the Court’s admission of exhibits for purposes of the hearing did not reflect a determination that the Court would supplement, the record with those exhibits)(the Court); 37:3-9 (parties expressing intention to supplement the record)(Court, Stewart & Wechsler); 61:6-10 (Ms. Nelson’s testimony on her telephone conversation with Duane Ellis regarding the September 25 Complaint Letter)(Nelson); 92:9-11 (testifying that Matthew’s 2002-2003 school year was successful)(Nelson); 162:19-165:3 (testifying about Tularosa School’s ability to provide services to students such as Matthew Chavez)(Dembrowsky); 185:2-5,15-17, 20-25 (testifying about the pay that educational assistants received in Tularosa during the time period in which Matthew Chavez was being denied educational serviees)(Dembrowsky); 186:1-187:5; and 187:23-188:12; (ii) Defendant’s Exhibit N to July 25, 2008 and August 1 Evidentiary Hearings, Puente Para Los Ninos Application; (iii) Transcript of Hearing on Motion for Preliminary Injunction 55:8-56:14 (discussing the formation of the SWAN team of consultants); 176:21-177:9 (discussing the formation of the SWAN team of consultants); 178:7-179:3 (discussing the formation of the SWAN team of consultants); 179:21-184:1 91:2-ll(discussing Dr. Brian Lopez’ behavioral assessment of Matthew Chavez); (iv) Exhibit 9 to Memo, in Support of Motion for Summary Judgment, Deposition of Patricia Osbourn at 77:5-80:21 (testifying regarding the SWAN team of consultants); 79:5-13; 79:14-80:21 (testifying about the SWAN team and the expert in structuring educational services to children with autism); 84:21-85:5 (testifying regarding the SWAN team of consultants); 91:2-11 (discussing Dr. Brian Lopez’ behavioral assessment of Matthew Chavez)(taken March 23, 2006)(“0sbourn Depo.”); (vi) Exhibit A to Preliminary Injunction Hearing, Educational Program Summary at 2 (dated September 20, 2005); and (v) Exhibit 7 to Memo, in Support of Motion for Summary Judgment, Letter from Beverly Nelson to Dr. Keaton and John Russo at 1 (dated August 9, 2006). These specific items of additional evidence are hereby incorporated into the record. All other items proffered to the Court were not helpful to the Court’s decision and are not made a part of the administrative record. II. THE AAO’S FINDINGS AS TO TULAROSA SCHOOLS ARE NOT IN DISPUTE AND THE COURT WILL ADOPT THEM AS ITS OWN. The AAO’s findings as to Tularosa Schools are not subject to dispute. The issues remaining for the Court to determine are (i) whether the DPHO and the AAO erred in declining to exercise jurisdiction over the NMPED; and (ii) whether the NMPED violated the IDEA by not compelling Tularosa Schools to comply to provide FAPE to Matthew Chavez, or by not stepping in and itself providing education services to Matthew Chavez. See September 10, 2007 Memorandum Opinion and Order (Doc. 127)(“Sept. 10 MOO”). This case is not an opportunity for the parties to relitigate what happened between Tularosa Schools and the Plaintiffs. The Due Process Hearing Officer found that Tularosa Schools did not provide any educational related services to Matthew after October 2003. See DPHO Findings of Fact ¶ 24, at 11. The AAO adopted this finding of fact, and the Court will assume the finding of fact is correct. Specifically, the Court will assume that the AAO, in accepting the DPHO’s findings of fact, correctly determined that Tularosa Schools had failed to provide educational services to Matthew since October 2003. See DPHO Findings of Fact ¶¶ 18 & 41, at 15; AAO Decision at 3-4. Mr. Chavez and Ms. Nelson have expressly agreed with that finding, see Plaintiffs’ Brief at 16, and the NMPED has not opposed that finding and conclusion or attempted to argue that it is incorrect. Indeed, the NMPED has encouraged Tularosa Schools to comply with the AAO’s decision. See July 25, 2008 Tr. at 34:3-6 (Wechsler). The AAO did not make findings as to the NMPED. Thus, in the posture of this case, the Court will: (i) make its own findings of fact as to the NMPED; and (ii) make de novo determinations of law in accordance with IDEA standards and Tenth Circuit precedent. III. THE DPHO AND THE AAO HAD JURISDICTION TO HEAR CLAIMS AGAINST THE NMPED. The Due Process Hearing Officer concluded that she did not have jurisdiction over claims made against the NMPED and that the NMPED was not a party. See DPHO Conclusion of Law ¶ 3, at 17. The question whether NMPED is subject to the administrative due-process procedures available under IDEA is a question of law. As such, the Court will review the AAO conclusions de novo. See Sanders v. Santa Fe Pub. Sch., 383 F.Supp.2d at 1309 (stating that court applies de novo review to questions of law under IDEA). The Court believes that, as a party having potential liability under the IDEA, the NMPED belonged in the due-process hearing. The NMPED gives two explanations for excluding itself from due-process proceedings. The NMPED believes that: (i) the issues raised against it are the issues to be considered in due-process proceedings; and (ii) no authority exists to have the SEA in due-process proceedings unless the SEA is providing direct service to the affected student. The Court disagrees with the NMPED’s reasoning. Tularosa Schools failed to provide Matthew with any educational services for the 2003-2004 and 2004-2005 school years. NMPED is accused of being either complicit in that denial, or at least responsible for this resulting denial of FAPE, as it knew or should have known of the failures in Tularosa Schools, in particular for Matthew, and failed to do anything to require creation of an appropriate placement or provision of education. Under the facts of this case, NMPED is a public agency that may be responsible for “direct service” to Matthew. Failure to include the NMPED at the administrative level defeats the purpose of the exhaustion of administrative remedies under the IDEA. Because no evidence against the NMPED was allowed in the administrative proceedings, the Court has been required to take additional evidence on this matter. The NMPED’s election to sit out is analogous to a party being named in a lawsuit but deciding not to participate. The party has the right not to participate, but the party may end up being bound by determinations made in the lawsuit. Moreover, Mr. Chavez and Ms. Nelson have raised a question regarding whether the NMPED, acting in contravention of its enforcement role in the federal/state/local scheme, supported Tularosa Schools’ refusal to provide appropriate educational services to Matthew by providing administrative case decision citations to Tularosa Schools. See DPHO Tr. at 228:8-229:11 (Dembrowsky, Stewart). To find that the administrative officers have no authority to decide whether an SEA violated the IDEA produces an unreasonable result. The due process requested against the NMPED concerned the failure to provide an appropriate educational placement and resulting denial of FAPE. 34 C.F.R. § 300.507(a) and § 300.503(a)(1) specify both matters as within the scope of due process requests. While the NMPED was not at the IEP meetings resulting in the IEPs that failed to provide FAPE, NMPED is a “public agency” as IDEA defines that term. The NMPED thus has a legal responsibility under the IDEA in circumstances such as these where the LEA either refuses or is unable to meet the child’s needs. See 34 C.F.R. § 300.22; id. § 300.507(a)(l)(providing for due-process hearings to address disputes between parents and “public agencies”). The Court therefore believes that, under the IDEA, as implemented by its regulatory language, the term “public agencies” implies applicability of due process for complaints against the NMPED. The NMPED’s justifications imply that it is aware of authority requiring its participation in due process when the SEA is providing direct services to the child. See Mo. Dep’t of Elem. and Secondary Educ. v. Springfield R-12, 358 F.3d 992, 999-1000 (8th Cir.2004); Bitsilly v. BIA, 253 F.Supp.2d 1257, 1265 (D.N.M.2003). The NMPED’s argument, however, is that, because it has not assumed that role, it is exempt from due process. Not only does the language not support NMPED’s construction, but the public policy implications of NMPED’s argument do not support this interpretation. To avoid subjecting itself to due-process proceedings, the NMPED’s construction supports avoidance of its obligations to step in and provide FAPE for students whom the LEAs are failing to serve. If the NMPED fails to intervene, and either compel the LEA’s compliance with the IDEA or provide direct services where it is required to do so, then it is subject to a claim. The NMPED is a properly named defendant in this lawsuit, and the Due Process Hearing Officer had jurisdiction. The Court therefore disagrees with DPHO Conclus