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FINDINGS OF FACT AND DECISION
Case Number:
Student‟s Name:
Date of Birth:
District:
Hearing Requested By: Parents
Dates of Hearing: December 10, 2010
January 25, 2011
February 3, 2011
March 31, 2011
April 4, 2011
May 11, 2011
May 19, 2011
May 25, 2011
June 28, 2011
September 9, 2011
Actual Date of Record Close: November 3, 2011
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 10, 2010
Attorney — Student
Parents
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 25, 2011
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
Education Administrator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 3, 2011
Attorney — Student
Parents
DOE Attorney — DOE
Education Administrator (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2011
Attorney — Student
Parents
— DOE
Attorney — DOE
CSE School Psychologist — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2011
Attorney — Student
Parents
Attorney — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2011
Attorney — Student
Parents
Attorney — DOE
(via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2011
Attorney — Student
Parents
Associate Director (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2011
— Student
Attorney — Student
Parents
Associate Director (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2011
Attorney — Student
Parents
Legal Intern — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2011
Attorney — Student
Parents
Attorney — DOE
— DOE
On December 10, 2010, January 25, 2011, February 3, 2011, March 31, 2011, April 4, 2011, May 11, 2011, May 19, 2011, May 25, 2011, June 28, 2011 and September 9, 2011, I conducted an Impartial Hearing at the New York City
(“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C.
§1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated September 23, 2011. (Ex. 1) I was appointed Impartial Hearing Officer on September 27, 2011. I was available to conduct a hearing within 14 days of the end of resolution (October 23, 2010). At a telephone conference with the parties conducted on October 25, 2010, the initial hearing was scheduled for December 12, 2010, the first mutually available date for the parties and the hearing officer. (T. 5)
The initial compliance date in this matter was December 7, 2010. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors, which included major witness unavailability outside the control of the presenting party and the fact that there were no claims or indications that services provided to the student would be affected, and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. [1]
The current compliance date is December 7, 2011. The record closed on November 3, 2011, upon my receipt of all post-closing memoranda.
Background
The student was a grade student during the 2010-2011 school year and attended (“ ”), a private residential school in rural that is not New York State approved as a facility with which the DOE may contract for instruct students with disabilities. The parents had unilaterally placed the student in and seek DOE funding for that placement. The student was just past years old at the beginning of the 20102011 school year.
The student‟s previous classification had been . (Ex. DDD) A psychiatric evaluation conducted in 2008 reported diagnoses of , a history of and . (Exs. 3, 5, XX) The student received throughout virtually all of his enrollment at . (T. 737, 1179; Ex. 3)
The student had attended public school in New York City through the second grade, and thereafter attended various New York State approved non-public schools and various private residential schools and a wilderness program from which he was removed and placed in a hospital facility for observation and treatment. (T. 652-661) Upon discharge from that facility he was enrolled in an independent mainstream residential school. (T. 663, 1220) He was thereafter unilaterally placed in on October 15, 2008 after it was determined that his prior placement could not provide the required level of supervision and continued there for the 2009-2010 school year. (T. 664, 1218, Ex. 5) The parents‟ claim for DOE funding for that placement was resolved by stipulation of settlement. (Ex. A)
On February 5, 2010, the CSE convened to develop an IEP. The student was then in the 11th grade. The student‟s mother (“the parent”) as well as three staff members participated in the review. (T. 746, 1018; Ex. 8) The IEP stated that the student‟s that was not available due to her medical condition and that no other witnesses would be proffered. (T.
1279) The parents moved to strike the testimony of in its entirety and the DOE opposed that motion.
(T. 1280-1281) After consideration of the memoranda submitted by the parties, I denied the parents‟ motion on October 10, 2011. (Exs. I, II, III) The DOE did not wish to present rebuttal witnesses. The parties requested October 31 as the date by which closing memoranda were to be mailed and jointly moved to extend the compliance date for that purpose.
intellectual within the average range, his verbal comprehension and perceptual skills fell within the high average range and his working memory and processing speed fell within the and , respectively. (Ex. 8-3) Based upon standardized tests conducted in November 2009: his reading and writing academic instructional levels were reported as letter and word skills- , reading fluency- , spelling- , passage comprehension- ; his math instructional levels were reported as calculation- , applied problems- , math fluency- . (Ex. 8-4) The CSE reported that teachers had stated that , impeded his ability to reach his true academic potential but that there had been an improvement in and grades in the 2009-2010 school year. (Ex. 8-3) See also Ex. 7.
With regard to functioning, the CSE noted that reported gains as well as the student‟s . However, the student continued to , , , and cues. The student‟s self-report form on the - (completed in November 2009) resulted in and included a preference for and could be . The parent reported , , and as , - control deficits in executive , and , to other students and to within the range. She stated that he needed to complete every day tasks. (Exs. 3, 8-5)
The CSE concluded that the student‟s needs could not be met in a public school and deferred his case to the Central Based Support Team (“CBST”) for a placement in a residential, non-public school. (Ex. 8) The CSE recommended individual ( ) and group ( ) therapy ( ) (Ex. 8-12) A transition plan was also developed. (Ex. 8)
Although the CSE review was on February 5, 2010, the CSE did not at that time transmit a referral to the CBST but rather did so by communication dated March 4, 2010, noting a “delay in processing”. (Ex. EE) CSE records specify that the referral was received by the CBST on March 11, 2010 and that referral packets were sent to at least 11 schools on March 15, 2010 (Ex. FF)
The parent was first contacted by , a CBST manager after the packets were sent out. (T. 765-766) She was contacted by at least nine schools commencing early to mid April. (T. 767) She responded to each of the schools that contacted her and visited some of them. (Ex. O)
The CBST had sent referral packets to 13 schools including at least two out of state schools. (Ex. 17) On April 26, 2010, , , informed the CBST that it would accept the student. (Ex. II) No other school indicated acceptance.
Between April and June 2010, the parent communicated by e-mail and telephone with and other DOE and referral school staff. (Exs. D, E, F, G, H, I, J, K, M, N, P, R, S, T, U)
By letter to the CSE dated June 15, 2010, the parents stated that they were unilaterally placing the student in for the 2010-2011 school year effective July 1, 2010 because the student had a 12 month IEP and the CSE had failed to provide an appropriate residential placement. They also claimed that the February 5, 2010 IEP expired at the end of the 2009-2010 school year, the student‟s grade. (Ex. A) No other claims were specified.
Although no contract for the 2010-2011 school year was executed, between June 8, 2010 and March 18, 2011, the parents made payments totaling $63,600 for tuition and fees for that school year. (Ex. AAA) The parent asserts that $9450 of that total was for the summer session at . (T. 1226)
By letter from the CBST dated August 5, 2010, the parent was informed that she was considered to be non-cooperative and as declining the services recommended on the February 5, 2010 IEP (T. 1199, Ex. 17) The parent responded, by letter dated August 25, 2010, and detailed her communications with and objections to the schools that had contacted her. (Ex. O)
By letter dated September 23, 2010, the parents requested the instant impartial hearing. (Ex. A) Positions of the Parties
The parents assert that the DOE failed to provide a free appropriate public education (“FAPE”) for the 2010-2011 school year because: it failed to develop an IEP for the 2010-2011 school year; substantive and procedural flaws in the development of the February 5, 2010 IEP amounted to a substantive denial of a FAPE; the DOE failed to timely offer a placement for the 2010-2011 school year and; (“ ”) was not appropriate for this student. The parents claim that was an appropriate placement.
Further, they assert that the parents fully cooperated and that the equities weighed against the DOE because of its actions and inactions. (Ex. IV)
The DOE claims that it provided a FAPE for the 2010-2011 school year but that should a failure to offer an appropriate placement be found, it was a result of parental efforts to impede the placement process in order to continue at and that, therefore, equitable considerations would warrant denial of any reimbursement. The DOE asserts, however, that was not an appropriate placement. (Ex. V)
Findings of Fact and Conclusions of Law
The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). Pursuant to Education Law §4404[1][c], the burden of proof with regard to Prong 1 is on the DOE and the burden of proof with regard to Prong 2 is on the parents.
(1) Prong 1
The DOE presented the testimony of three witnesses: , CSE (“ ”); Rosa CBST Case Manager (“ ”); , Director of Education for the Schools (“ ”).
Although the DOE asserts that it offered a FAPE and presented evidence in support of its claim that DB was an appropriate placement, the DOE has failed to establish that it actually offered that or any other placement. A deferral to the CBST merely indicates that CBST assistance was required to locate an appropriate placement. The DOE‟s own Standard Operating Procedures Manual makes clear that whether the parent agreed with the placement or not the CSE was required to reconvene to indicate its recommendation on the IEP and a new Final Notice of Recommendation was required to be issued indicating the school. (Ex. B) Both and confirmed that the CSE must consider the proposal to determine whether it is appropriate and issue a new IEP. (T. 216, 368, 585) See also, Application of a Child with a Disability, Appeal No. 06-025 There is no claim or evidence that the required reconvene took place but rather the evidence supports a conclusion that it did not. T. 588, 1214 No explanation for the failure to do so was provided.
Accordingly, I find that the DOE has failed to establish that it offered an educational placement for the 2010-2011 school year and therefore has failed to establish that it provided a FAPE. In view of this finding, I do not address the other claims made regarding the provision of a FAPE.
(2) Prong 2
When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank
G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. “Ultimately the issue turns on whether a placement…is „reasonably calculated to enable the child to receive educational benefits.‟ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Although progress in a private school is a relevant factor that may be considered in reviewing whether a school is appropriate, progress, by itself, does not suffice to demonstrate that such a placement is appropriate. Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d.105, 115 (2d Cir. 2007). Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (id.)
The parents presented the testimony of two witnesses: the student‟s mother and , Associate Director of (“ ”).
The evidence shows that , located in , is a small, residential school for students, years old, with who have had , or . (T. 718, 973, 985 ) It serves students who are and structured academic setting (T. 974) and students who are performing below their academic, social and emotional potential. (T. 975) Students at are in that they may , including sometimes physically, but they are not . (T. 983, 1000-1001, 1031, Ex. 44) characterized the population as “gentle” although some have a diagnosis of , some, although not , , and some have had . (T. 973, 1025) The parent testified that the student was and that references to in his record referred to only. (T. 649) Students are not permitted to have and certain other and are whenever they after a . (T. 973,
1055) The school follows a 12 month program but does not work on academics during the summer although some students do remedial work. (T. 1102, 1105)
follows a curriculum approved by the Department which is the same curriculum school. (T. 991) It is able to diplomas year college admissions to students who meet the requirements although only one or two students graduate every few years. (T. 1015, 1064; L-2) Typically college transition services are not offered because so few students require them. (T. 1064) The school does not provide or and therapy. (T. 1060, 1083)
During the 2010-2011 school year, had between 45 and 51 students. (T. 985) Five or six, around 10%, were between and years old and most were early school age.
(T. 1065) The majority stay about two years to three years and move on to a more traditional academic setting. (T. 973) Students are assigned to classes by grade and ability. (T. 991) For math, the school uses a computer program that enables addressing each student‟s deficits. (T. 1109) There are generally six students in a class, with one teacher. (T. 992) This student‟s program for the 2010-2011 school year included Literature, Algebra, Anatomy, World History, Spanish and Health. (Ex. FFF) Bulger testified that curriculum is individualized for each student by moving at each student‟s individual pace and providing individual instruction as well as by assignment to functional grade level classes. (T. 992) has some 11 teachers, a residence staff of 12 to 13 for four residences with seven on staff at any one time, a nurse who distributes medication, and administrative staff. (T. 1141-1147, 1148)
Off-campus recreational and community activities are provided but totally supervised ( students to teacher) for all but “ ” students. (T. 1007) Those students may have about a at a town during which they may separate to choose a food vendor on their own and are only loosely supervised during that period. (T. 1005, 1007, 1136-1138) This student was not in group one. (T. 1140) As part of its system, categorizes students into four groups with different privilege levels and students move between those groups according to their . (T. 1139) The most privileged groups are permitted, among other things, periodic independent off-campus time (1/2 hour) to near the campus unsupervised. (T. 1140) The student was and was group. (T. 1140) He received guitar lessons while at the school and participated in certain school travel activity. (T.
1009) College planning and application assistance was provided to him at the request of the parent. records some 10-12 physical altercations per year, although sometimes there are incidents that are not included. (T. 978, 1027-1028, Ex. 48) Available records indicate that the at the school. (T. 1001; Ex. 44)
With regard to how the school addressed the deficits described the school as having a “ ” in which students receive constant feedback daily from teachers and residential staff as well as other staff on their , attitudes and how they handle situations. (T. 1122) has a Masters degree in social work. (T. 971) Administrative staff members have , and degrees and who, in addition to their other duties, work with some students “advising.” (T. 1143, 1145-1146) “Advisors” at constitute about eight senior staff members who are responsible for between students in addition to other duties. (T. 1147-1148) There is no set schedule for seeing advisees one to one. (T.
1148) stated that the student‟s advisor, a longtime member of the residence staff, worked with the student on short and long term goals among other things and prepared the Advisor Progress Reports. (T.1013, 1146, 1147; Exs. RR, 11, 53) In addition, three psychologists and a psychiatrist provide services at the school to the students who wish to have them but the providers are not staff members and not paid by or members of its staff. (T. 1060, 1152-1153) This student‟s family provided at least weekly sessions with a licensed clinical psychologist and as needed sessions with a clinical psychologist who oversaw the student‟s medications. (T. 648, 725, 1003, 1004, 1006) The only written reports provided by the student‟s psychotherapist are the Therapists Progress Reports.
(T. 1154, Exs. 10, 53) There are routine verbal communications with and the Educational Director. (T. 1154)
testified that the program that the student receives gives him help with attentional issues, a small classroom enabling a focus on studies and organizational skills.
(T. 1007) The student made academic progress as well as progress, becoming more appropriately , and more motivated, more able to self-advocate, was involved in student activities and formed relationships with school mates. ( T. 733, 1010, 1110) The evidence shows that the student graduated with a local diploma in June 2011, the diploma objective specified on the IEP, and had passed all his courses. (T. 721, 1185, Exs. EEE, FFF) opined that is an appropriate placement for the student. (T. 1016)
I am persuaded that the student made certain progress at . However, although progress in a private school is a relevant factor that may be considered in determining whether a school is appropriate, it does not suffice to demonstrate that a placement is appropriate and that the DOE may be required to fund it. Gagliardo, 489 F. 3d at 115. In considering whether the parents have met their Prong 2 burden, I note the following:
The student has, as recognized by the CSE and not disputed by the parents, substantial and within a residential placement to make appropriate educational gains. Indeed, the parents placed him in a facility that permits almost no independence or unsupervised time even to its “group one” students and none at all to this student. Further, the parent testified with regard to how his needs were being met that he received therapy on a was provided as needed. (T. 648, 722, 724-725). I conclude that that was an essential aspect of the program that was provided and there is no evidence supporting a conclusion that he would have made the claimed progress without it. Nevertheless itself provided no routine or but rather facilitated the provision of therapy paid for the parents as an add-on. Moreover, the evidence with regard to its integration of this parentally provided therapy with ‟s was limited and vague. The only written reports provided by the to the school were the progress reports which appear to be summary updates. Although testified that there were verbal communications they appear to have been somewhat informal and there is no indication of how comprehensive they were with regard to this particular student. Further, I note that those communications were not directly with the student‟s teachers or advisor.
With regard to the student‟s advisor, the service that did itself provide, I note that the student was not seen one to one in accordance with a schedule nor was there reliable testimony as to frequency. Rather, it was on an as needed basis. Although testified that “like” it to be weekly (T. 1146}, there was no evidence that that occurred with this student nor is there any evidence as to the duration of the interactions that occurred. (T. 1057) With regard to the advisor, testified that he was senior residence staff with some 23 years experience (T. 1013) but although referred to at times as Dr. (T.1146), there was no testimony as to his educational background or any professional certifications.
With further regard to the failure to provide a recommended related service, I also note that the CSE recommended therapy and that that recommendation was not objected to by the parent or otherwise disputed. (Exs. 1, 8, A) Indeed, the student‟s outside also noted speech language difficulties, suggesting that they impeded his information processing and conversation. (Ex. RR). , however, does not provide therapy, there were no parental arrangements to provide it and, indeed no indication in the record that considered this matter at all.
A school‟s failure to provide every service and a parent‟s supplementation of a unilateral placement with additional mandated services does not require a finding that a placement is not appropriate. “[P]arents need not show that a private placement furnishes every special service necessary to maximize their child‟s potential.” Frank G., 459 F. 3d at 365. However, none of the mandated related services were provided here. Further, although I find persuasive the testimony that had generally a “ ,” in the circumstances here the parents were required to provide what I conclude was essential to enable this student to function there. In those circumstances, funding for a parental placement funding is more questionable.
I also note that with regard to the general program provided for this student, acknowledged that it was the same program provided for all students.(T. 1006) The sole individualization claimed came from the class assignments to appropriate grade and ability levels and from the ability of teachers of small classes generally to address a student‟s needs and the attention that the provide. A private placement is only appropriate if it provides education specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F. 3d at 108. It is also noteworthy that although the parent seeks reimbursement for a 12 month program no testimony has been submitted concerning the nature of the summer program the student received at .. testified that with regard to an academic aspect of the program that only remedial work was done during the summer and he had no knowledge as to whether this student required or received that. (T. 1102, 1105)
Based upon the foregoing, I find that in the “totality of the circumstances,” the parents have failed to establish that they provided a placement that reasonably served the student‟s individual needs, provided educational instruction specially designed to meet the student‟s unique needs, supported by such services as are necessary to permit the student to benefit from instruction. Gagliardo, 489 F. 3.3d at 112. I therefore find they have not met their Prong 2 burden.
(3) Equitable Considerations
In view of the foregoing findings I do not address the parties‟ claims based upon equitable considerations.
ORDER
This matter is DISMISSED.
Dated: November 16, 2011
_____________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTS ENTERED INTO THE RECORD
PARENT
A Notice to Unilaterally Place Child, fax transmission verification 6/15/10, 3 pages B NYC DOE Standard Operating Procedure Manual except, February '09, 3 pages C 8 NYCRR § 200.4-E, Undated, 5 pages D Email correspondence between , and , 4/5/10, 3 pages E Email correspondence between and , 4/8/10, 6 pages F Email correspondence from to , 4/19/10, 1 page G Email correspondence between and , 4/24/10, 2 pages H Email correspondence between and , 4/27/10, 4 pages I Email correspondence from to , 5/3/10, 1 page J Email correspondence between and , 5/4/10, 3 pages K Email correspondence betw. and , 5/5/10, 5 pgs. L Email corres. from to , including attachment, 5/5/10, 2 pgs. M Email correspondence betw. and , 5/12/10, 5 pages N Email correspondence between and , 5/13/10, 1 page O Letter from to , 8/25/10, 6 pages P Email correspondence, , , 4/5/10, 3 pgs. Q Email correspondence, , , 5/3/10, 3 pgs. R Email correspondence, , 5/4/10, 3 pgs. S Email correspondence, , , 5/12/10, 6 pgs. T Email correspondence, , , 5/20/10, 4 pgs. U Email correspondence, , , 6/4/10, 1 pg. V .com article, printed 4/7/10, 1 pg. W .com article, printed 4/7/10, 1 pg. X PEF news article, printed 4/7/10, 1 pg. Y s.com article, printed 4/7/10, 4 pgs. Z Thejournalnews.com article, printed 4/25/10, 2 pgs. AA Freepressrelease.com article, printed 4/26/10, 1 pg. BB NewYorkPost.com article, printed 5/25/10, 1 pg.
CC .ynn.com article, printed 4/5/10, 1 pg. DD School first quarter progress report, 11/5/2010, 7 pgs. EE CBST 1 form, 3/4/10, 1 pg. FF Email correspondence, , 10/29/10, 3 pgs. GG Email correspondence, , 5/5/10, 1 pg. HH Email correspondence, R. DeNoon, R. Smiley, 5/5/10, 2 pgs. II Letter from ) to , 4/26/10, 2 pgs. JJ Letter from to , 4/15/10, 1 pg. KK Letter from to , 4/26/10, 1 pg. LL response form, 4/23/10, 1 pg. MM Letter from to , 4/6/10, 1 pg. NN Letter from to , 4/12/10, 1 pg. OO Letter from to , 4/27/10, 1 pg. PP Email correspondence, , 10/29, 3 pgs. QQ response form, 6/3/10, 1 pg. RR School '10-'11 Second Quarter Progress Rept, dated 1/28/11, 7 pages
SS WITHDRAWN
TT WITHDRAWN
UU E-mail Correspondence, dated 5/3/10, 1 page VV Memorandum, dated 4/26/10, 1 page WW Social History Update, dated 6/13/07, 3 pages XX Initial Eval, dated 11/11/08, 5 pages YY Vocational Assessment, dated 1/30/07, 1 page ZZ Career Decision Making System Worksheet, dated 1/30/07, 1 page AAA Proof of Payments to School, 6/18/10 to 3/28/11, 8 pages BBB Fax from Parent to , 1/22/10, 1 page CCC Final Notice of Recommendation Marked, 1/21/10 resent, 1 page DDD Individualized Education Program, 9/22/09, 15 pages EEE Diploma from High School, 6/18/11, 1 page FFF Fourth Mid-Term Academic Reports, 5/20/11, 2 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, 9/23/10 9 pages 2 Due Process Complaint, 10/28/10, 4 pages 3 Educational Update, 11/5/09, 6 pages 4 Summary and School Report, 2 pages 5 Updated Evaluation, 8 pages 6 Notice of IEP Meeting, 1/28/10, 1 page 7 Social Update, 2/5/10, 2 pages 8 IEP, 2/5/10, 17 pages 9 Meeting Minutes, 2/5/10, 3 pages 10 Fourth Quarter 2009 Progress Report, 5 pages 11 Second Quarter 2010 Progress Report, 5 pages 12 Rationale for Deferral to CBST, 2 pages 13 School Academic Calendar, 1 page 14 School Petersen's Guide Information, 2 pages 15 Online Brochure, 4 pages 16 Email from , 4/28/10, 1 page 17 Letter to Ms. dated 8/25/10, 2 pages 18 Invitation from , dated 3/30/10, 1 page 19 Invitation from , dated 4/16/10, 1 page 20 Response form, dated 5/18/10, 1 page 21 Invitation from , dated 4/15/10, 1 page 22 Invitation from , dated 5/5/10, 1 page 23 Center Tour Confirmation, 1 page 24 School Transcripts and Grade Report, 3 pages 25 Invitation Letter, dated 3/30/10, 1 page 26 Second Invitation Letter, dated 4/5/10, 2 pages 27 Fax Cover Sheet, 1 page 28 E-mail from , dated 4/8/10, 3 pages 29 Letter, 7 pages
30 E-mail , dated 4/5/10, 2 pages 31 E-mail from , dated 6/3/10, 2 pages 32 E-mail from , dated 4/7/10, 1 page 33 Printout from website, dated 5/25/10, 3 pages 34 E-mail from , dated 5/20/10, 5 pages 35 E-mail from , dated 4/28/10, 6 pages 36 E-mail from , dated 4/21/10, pages 37 E-mail from , dated 4/5/10, 2 pages 38 E-mail from , dated 4/5/10, 3 pages 39 E-mail from , dated 4/27/10, 4 pages 40 E-mail from , dated 5/13/10, 1 page 41 E-mail from , dated 5/12/10, 6 pages 42 E-mail from , dated 4/24/10, 2 pages 43 E-mail from , dated 11/18/10, 2 pages 44 Valley View Logs, 2 pages 45 E-mail from to , 10/21/10, 2 pages 46 E-mail from Parent to , 10/21/10, 3 pages 47 E-mail from , 10/19/10, 1 page 48 School Reports of Physical Interventions, Various Dates, 8 pages 49 Fourth Quarter 2009-2010 Progress Report, 1 page 50 First Midterm 2010-2011 Academic Reports, 2 pages 51 Second Midterm 2010-2011 Academic Reports, 2 pages 52 Third Midterm 2010-2011 Academic Reports, 2 pages 53 Third Quarter 2010-2011 Progress Reports, 6 pages
IMPARTIAL HEARING OFFICER
I Parents Motion to Strike testimony of II DOE Objection to Motion to Strike III IHO Decision-Motion to Strike
IV Parents Post Closing Memorandum V DOE Post Closing Memorandum
Footnotes
[1] The last day that testimony was taken in this matter was June 28, 2011. On that date, DOE witness ”), the DOE‟s principal witness with regard to the placement that DOE claimed it provided and the parent‟s interaction with staff at that placement, was expected to complete her testimony. Her cross examination had been substantial but had not concluded and redirect examination had not occurred. At the hearing, the DOE‟s counsel stated that Shingles, who had returned to work, was then being treated for pneumonia and unable to testify. (T. 1164) Counsel requested that another day be scheduled to conclude her testimony, present another witness if one was available or otherwise address the problem. (T. 1166-1167) Over the objection of the parents‟ counsel, who sought to have the entirety of testimony stricken, the DOE‟s request was granted. (T. 1169) The first mutually available hearing date in view of pre-arranged vacation schedules was September 9 and another hearing date was scheduled to ensure that the DOE had an opportunity for rebuttal. (T. 1273) The parties thereafter jointly requested extensions of the compliance date to enable those hearings to occur. (T. 1273) At the hearing on September 9, DOE counsel informed