New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: February 9, 2012

February 17, 2012

March 30, 2012 Actual Record Close Date: April 30, 2012 Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2012

Attorney (via telephone) — Student

NO APPEARANCES

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 17, 2012

Attorney (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2012

Attorney — Student

Parents

Parents

Director (via telephone) — Student

Teacher (via telephone) — Student

CSE Chairperson's Designee — DOE

Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

INTRODUCTION

On March 30, 2012, an impartial hearing was commenced and completed pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a FAPE to (“the child “) for the 2011-2012 school year. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 9:30 a.m.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On February 9, 2012, pre-hearing conference call was held. The parent’s attorney was on the phone but the DOE did not appear. The pre-hearing conference was rescheduled to February 17, 2012, At that time both parties appeared on the phone. When asked how much time the DOE required to put on its case, Ms. stated that she needed a half a day. (Feb. 17, 2012, T. 12) Ms. stated that she would need a half a day to a day. Id. During that conference, March 2 (in the afternoon) and March 30 (all day) were selected as hearing dates. On February 28, 2012, the DOE requested an adjournment of the March 2 date due to the unavailability of witnesses. The DOE’s request was granted. On March 30, the parties informed the IHO that on the night before the hearing, they had discussed the fact that the DOE was not going to have all of its witnesses available for the hearing. They both assumed that the DOE could ask for an adjournment and that its request would be granted. Thus, the parent’s attorney stated that she was not ready to go forward on that day. ince neither the DOE nor the parent saw fit to request the adjournment in advance, and the DOE had already requested one adjournment for the same reason which was granted, the DOE’s request was denied.

After calling two witnesses, the DOE stated at the hearing that it had one more witness to call, but she was not available that day. In light of the fact that: 1) the DOE had a month to get witnesses ready for the hearing, 2) the DOE selected the date, 3) the DOE had stated that it only needed a half a day to call two witnesses (February 17, 2012,

T. 12) and 4) the DOE had already requested one adjournment which was granted, the denial of the DOE second request for the adjournment was reasonable and within the discretion of the IHO. The parent’s attorney also asked to adjourn the case. That request was also denied. The hearing commenced as scheduled and was completed on the same day.

THE PARENT’S POSITION

The parent contends that: 1) the IEP was flawed in many respects, and 2) that the recommended placement was inappropriate. The further contend that the ) is an appropriate placement for the child and the equities tip in the parent’s favor.

THE DOE’S POSITION

The DOE contends that the child’s recommended program in a 12:1 class at IS 27 for the 2011-2012 school year would have provided the child with a FAPE. The DOE further contends that is an inappropriate placement for the child and that the equities do not favor the parent. Thus, the DOE contends that the child is not entitled to any relief.

EVIDENCE PRESENTED

The child is . (Ex. 1). He is a . For the 2011 – 2012 school year, he was recommended for a special class in a community public school with a classroom ratio of . He was also recommended for the related services of counseling once weekly for forty minutes, and for therapy twice weekly for thirty-minute sessions in a group not to exceed three students. (Ex. 1).

On May 20, 2011, the CSE held a review meeting and created an IEP. The CSE 1 was duly constituted. (Ex.1) The CSE was composed of the parent; a district representative who also sat as the school psychologist; , who sat as the general education teacher and the special education teacher; and, , who participated via phone as the child’s special education teacher. (Ex. 1-2; T. 111).

The CSE indicated that the child would be in a . It did not provide for the child to participate in any general education classes during the day. (Ex. 1-16, T. 119).

At the time of the CSE meeting, the child’s academic performance . (Ex. 1-4). The child’s math levels were reported to be at the level for math computation and the low for word problems. (Ex. 1-4).

The CSE created academic goals. The goals were that the child would develop skills to the / level in comprehension, the late level in decoding, the level in spelling, and the level in writing. (Ex. 1-9, 1-10, 1-11). In addition, the IEP contained goals related to language skills and remaining in task. (Ex. 1-13,15).

At the CSE meeting, the parent stressed her concern that the child requires smaller class ratio than for his core curriculum in math and literacy. (T. 119). She also indicated, and the IEP reflects, that he needs full special education teacher support throughout the day. (Id., Ex. 1-16)

The parent requested a copy of the IEP prior to the end of the 2010-2011 school year, as well as a placement recommendation so that she could view the program. (T. 121). The DOE sent a FNR on or about August 17, 2011. ( Ex. 4-1, T. 123).

The parent wrote to the CSE on August 24th in which she expressed the same concerns that she voiced at the IEP and informing the CSE that she was out of the state due to a family emergency. (Ex. B). She indicated that as soon as she returned home she would check the mail and respond to any placement recommendation. (Ex. B-1). She also noted that she would consider any DOE placement. The FNR recommended placement at IS 27. (Ex. 4).

Ms. is a NYS Certified Special Education Teacher. She testified that there was a seat available in the school’s class at the start of the 2011-2012 school year. Ms. testified that she has no idea who the child is except she read his IEP. (T. 37-38) She stated that the students in the class range from on reading (T.31) in math. (T. 32). She was unaware of the intellectual levels of the other children in the class. (T. 33) She testified that there are opportunities for small group instruction. (T. 34-35 ) There is no other adult in the classroom. (T. 36) Ms. testified that the class follows a general education curriculum but she applies it differently in the classroom. (T 37: 15-21). She testified that having reviewed the child’s IEP and given her professional experience and training, class at would have met his needs.(T. 38)

Ms. is the sixth grade special education math teacher for the . (T. 360) She was not familiar with the reading curriculum or the writing levels of the students in the class.

(T. 36, 42).

The IEP indicates that although the child was at the at the time of the IEP, review he was at the grade level in reading and at the grade level in writing. (Ex. 1-4). The child has been diagnosed with . Ex. (3-18).

Mrs. testified that the class follows the sixth grade curriculum as mandated by the state. (T. 39-40). Ms. was not familiar with the reading curriculum (T. 36) and Ms. also failed to provide any testimony or evidence about how the would be addressed. Neither witness, although given the opportunity, addressed the goals on the IEP nor discussed how they would be implemented. Neither witness discussed how the deficits noted in the IEP would be targeted by the class.

The curriculum and the materials utilized Class is the same as in the general education sixth grade class. (T. 41). The record shows that the child’s decoding or reading abilities . (Ex. 1-3, 1-4, 3-26, 3-28; T. 194, 197). There was no testimony to indicate how the general education curriculum and materials for reading would be modified.

In addition, the child has (T. 187). There was no testimony about the curriculum for writing or how the child’s goals for written expression would be addressed.

Ms. never specifically described how she would address the deficits that the child had in math. She testified that she uses “Pearson” math, which she explained is a new curriculum at (T. 37). The math class covers all the material that any class has to cover. Id. Ms. testified very generally that her would meet the child’s needs, but she never explained how it would do so. (T. 38). She further testified that everything is more visual and more personal in her class , but there was no testimony about how the math curriculum would be modified, if at all, for the child’s specific since the child’s math levels were only at levels. (Ex. 1-4).

All the students in the were working on level goals. (T. 57). Ms did not testify about how the child’s math abilities are similar to the other students in the class. She did not report on the functional levels of the others in the class.

The child that impact upon his educational performance. (Ex. 1-1, 3-17, 3-18). Ms. was asked on cross-examination what the child’s were after she had reviewed the IEP. (T.49). Her response was that she did not take notice because she only focuses on math. Id.

The child also has . (Ex. 1-16, 3-13, 3-14, 3-18). Ms. was asked whether she would address these but she did not understand the term . (T. 48). Similarly, when asked if she addresses auditory processing deficits or , she responded, “rarely.” (T. 47).

Ms. testified that the class is grouped with the general education population for the special/encore classes. (T. 44-45). The sixth grade class does not provide special education instruction for the “encore” or “minor” subjects, which include gym, computer, art, music, drama, journalism, and ELA enrichment. (T. 41, 45, 79, 88). Encore classes are taught by general education teachers. (T. 44-45,78) These classes can have as many as 30 students with one general education teacher. (T. 80).

Ms. , the assistant principal at , testified that she is also the special education supervisor at IS 27, and has worked in that capacity for the last 13 years. (T. 63) Ms. testified that there are opportunities to participate in extracurricular activities and sports at IS 27 (T. 65), and that there are several different programs offered to both students with and without IEP’s that may need supplementary social and academic intervention. (T.65-67) The school conducts parent teacher conferences twice during the school year, and the teachers at IS 27 participate in several staff developments dates throughout the school year. (T. 68- 69) Ms. testified that offers related services supports to its student both on an IEP mandated basis and on at-risk basis. (T. 66) Ms. also testified that the students have access to computers in the classroom, in computer labs and in the school’s library. (T. 69-70) Ms. testified that having reviewed the child’s IEP, “…it looks like he would fit as far as the functioning levels and what his needs are.” (T. 71). Ms. also testified that the child would have received and as mandated by his IEP, had he the 2011-2012 school year.

The IEP states that “all” of the child’s areas of instruction be in a . (Ex. 1-16). Ms. testified that at , only the “core subjects of ELA, math, science and social studies are taught by a special education teacher”. (T.88) Anything other than those four courses is generally given with the general education population. (T. 90). She also testified that there is no guarantee that the minor subjects are taught by a special education teacher. That varies. (T. 89) That determination is based upon “programming” and not upon the child’s IEP. (T. 89) She said that “our IEP’s only state that special education is for the four major subjects. “ (T. 90) She stated that the child’s IEP did not provide for any mainstreaming at all. (T. 91) She did not know if she would be able to provide the child with the program as mandated on his IEP. (T. 93) She stated that she would “do her best” to make sure that the child was not mainstreamed with general education children but she could not state with certainty that his mandate would be met. (T. 94) The parent first visited the placement in September. (Ex. C; T. 71, 124) She met with Mrs. , the parent coordinator who gave her the school tour. (T. 72, 73, 125). The parent was not given an opportunity to speak to the teachers and special education supervisor to review the child’s IEP and the program with them. (T. 125). The parent was told on that day that the child would be math curriculum at . (T. 126). The parent expressed her concern because the child was not at that level. (T. 128).The parent also spoke with Ms. and expressed her concerns. (T. 63, 128, 129). Ms. told the parent, and Ms. confirmed, that the school is required to teach students at grade level and they must and do use the sixth grade general education curriculum and textbooks regardless of the level on the IEP.

(T. 40, 41, 76, 80, 81, 82, 130).

After her visit and discussion with Ms. the parent wrote to the CSE stating that she did not think that was an appropriate placement for the child. (Ex. C, T. 132). No one ever responded to her letter. (T. 133). There was no evidence that any other placement was offered to the child.

For the 2011-2012 school year, the child unilaterally was placed by the parent at .

(T. 133). is a school for students with or and issues of . (T. 156-157). The head teachers have Master’s degrees in education. The assistant teachers are enrolled in Master’s degree programs. (T. 158). provides training to its entire faculty. (T. 155, 158159). The staff at is in constant communication with one another regarding each in order to address each student’s needs. (T. 160).

The middle school contains grades sixth through eight. (T. 156). The typical class size is 12 to 14 students with two or three teachers. (T. 157). At , the child is placed in a class of 14 students with three teachers. (T. 186) For literacy and math he is placed is a in groups of five or six students. (T. 193, 194, 197, 207). His class was functionally and socially appropriate for him. (T. 187, 188).

The curriculum at , the co-directors of the middle school. (T. 154, 162). The curriculum is fully modified for the students. (T. 169). All of the teachers are trained in the programs that are being used in the curricular areas. (T. 167).

At the start of the year, the child . (T. 187). He also needed to continue to work with and multi-step problems in math. Id. . (T. 189). MMFS addressed all of these deficit areas.

Over the course of the year, the child has made progress in writing. At the start of the year he would

At the start of the year were assessed utilizing pre-assessments, a writing sample, and a evaluation. (T. 194-195). He was found to have deficits in decoding. (T.195) They utilized and . ( T. 196). The group also utilized independent reading and group reading for decoding and fluency skills. Id. The child has benefited from the reading instruction in his literacy group. He responded well to the word study program, . (Ex. D-7). The child has demonstrated a thorough understanding of basic encoding strategies and patterns and continues to work on harder suffixes and spelling patterns in multisyllabic words. Id. He has made progress in his decoding. He volunteers to read aloud in class and is able to read the material. (T. 204). He is working on editing and incorporating the spelling rules. (T. 204). He has also improved to a level in comprehension and an early in decoding over the course of the year. (T. 234).

The child’s math teacher did a pre-assessment at the start of the year to determine his math needs. (T. 206). It was determined that he struggled with working memory and did not know his multiplication facts. Id. He also struggled with multi-step problems. Id. He was placed in a level math class that utilizes a level text for computation and the Singapore method for problem solving. (T. 207). The method provides students with a visual representation of a word problem so that students work through the problems by drawing pictures. (T. 208). Along with the visual representation of the problem is a checklist or instruction on how to do the problem. (T. 209). Over the course of the year, the child has relied less and less on the checklist and is internalizing the methodology to solve a word problem. (T. 210).

The child has made progress in math. At the start of the year, word problems were extremely challenging. (T. 213). He is gaining his multiplication facts. Id. He has improved in computation. (Ex. D-9). Through the use of manipulatives, the child has developed a stronger conceptual understanding of math. (Ex. D-10). He has improved to a late fourth grade level over the course of the year. (T. 234).

The child has . (T. 215). With the supports provided to him at , he is able to provide . (T. 216). With clear instructions, structure, and a routine, the child has done well over the course of the year. (T. 217)

The child has also received language therapy at . He receives this service twice a week as a pull-out service and a push-in service. (T. 218). He is working on making inferences, predictions, cause and effect. (T. 219). These are all areas of difficulty for the child that are being addressed in language therapy. Id. The language sessions also worked on addressing his . (Ex. D-23).

All the teachers at utilize the strategies that are being implemented in language therapy. (T. 220). The language therapist has supported the teachers by talking to the teachers about how to read aloud and present to the group. (T. 221).

Post-its are also utilized and beneficial to help the . (T. 205, 226). This strategy is used by all his teachers. (T. 205). The post-its help him to , help him with his attention and receptive language deficits. (T. 229). It is used in every class. Id. The child also has a that is utilized as needed to address his . (T. 248-249). The child meets with the school psychologist once a week in small group. (T. 241).

The child has matured over the course of the year and became a stronger, more confident student. (T. 233). He is able to write more, is more interested in reading, and feels better about his schoolwork. Id. He has become more successful with reduced teacher support. (T. 235, 239).

The parent signed the tuition contract with in February, 2011. She testified that was still open to the DOE placement, which was not offered until August 2011. (T. 136, 137). The parent stated that she had to sign the contract and make payments because she did not have another placement for the child and the DOE had not responded to any of her concerns. (T. 136-137, Ex. B). The parent testified that she asked that IEP be developed quickly and that the placement be sent to her early so that she could view it. (T. 121, 152). The parent informed the CSE that she wanted to know what the placement recommendation would be before she got “locked” into the contract. (T. 152). Since she did not know the placement, she said that she began to make payments in accordance with the terms of the contract. (T. 152).

Had the DOE offered an appropriate placement, the parent said that she would have considered it. (T. 137, Ex. B). She said that would “work with her” if she placed the child elsewhere. (T. 151). On August 24, 2011, the parent wrote a letter to the DOE stating her reasons why a placement was inappropriate for the child. (Ex. B) She wrote that letter while away on vacation. Id. When she returned, she learned that the child was placed at classroom. After visiting the school, the parent informed the DOE that she was rejecting the placement at in a letter dated September 21, 2011. (Ex. C) The DOE never responded to the parent’s letter rejecting the public school placement even after the parent notified the DOE that she was continuing to hold a space at MMFS. (Ex. B, T. 124; Ex. C, T. 133).

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17] In determining whether an IEP is appropriate, the court must consider “whether the School Board complied with the procedural requirements of the IDEA, and . . . whether the IEP. was reasonably calculated to confer educational benefits.” M.S. ex rel. S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 231 F. 3d 96, 102-103 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-207). In a tuition reimbursement case, the DOE has the burden of production and persuasion in an impartial hearing with regard to whether FAPE was offered.2 Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007. In this proceeding, the DOE must demonstrate the appropriateness of its IEP and placement. The DOE did not meet it burden.

Initially, what is clear is that any procedural inadequacies with regard to the IEP were de minimus and did not deprive the child of FAPE. Even without the testimony of Ms it is clear that the CSE was duly constituted and the goals were, if not reflective of the child’s current levels as the parent continually pointed out, were intended to show where the child should be within one year. In addition, the parent’s claim that she was denied the opportunity to participate cannot be credited. The CSE may not have satisfied all of her concerns but they listened to her and placed the full-day special education mandate in the IEP. Consequently, the DOE has not demonstrated that the CSE meeting was properly constituted or that the IEP process was flawed.

While the DOE met its burden with regard to the procedural requirements, it failed to meet its burden that it provided an appropriate placement for the child. As all of the testimony demonstrates, was not an appropriate placement for him, no other public school placement was offered, and thus, he was denied a FAPE.

The determination that the child should be placed in a school where he could not be guaranteed that his instructors would be special education teachers, is a clear violation of the mandate on his IEP. The CSE was explicit it is mandate that the child be placed in a special class environment for all periods per week in all areas of instruction in a class of Ms stated that , only the four major subjects were taught in a class with a student teacher ratio by a special education teacher. She could not necessarily provide the child with a full day of special education instruction in a setting. She said that the encore and special classes were not always taught by special education teachers. Moreover, she said that the specials and encore classes contain as many as 30 students including general education students. She admitted that this child’s IEP did not allow for such mainstreaming.

The evidence also failed to reveal how the special education teachers would modify the general education curriculum in math, reading and writing to meet the child’s needs. Event Ms. , who was the math teacher for special education at , did not explain how she would modify the for the child who was functioning two years below his grade level. In addition, since she teaches only math, she was unable to speak to the reading writing curriculum. She did not address the science or social studies curriculum either. Thus, the record is silent as to how or if the staff at could have met the child’s needs and addressed his deficits in all of the other core subjects.

The IEP simply could not be implemented at The DOE’s own witnesses testified that the child would most likely be required to attend several general education classes during the week, some as large as 30 students, without the assistance of a special education teacher. The child required a special education teacher in a group no larger than during the entire day which was reflected on the IEP. (DOE Ex.1-16) Failure to implement or to be able to implement the recommendations on the IEP constitutes a denial of FAPE.

Having found that the child was denied FAPE, the parent has the burden of proof to establish that her unilateral placement at was an appropriate placement. The DOE contends that it was not and that the parent failed to meet her burden here. It is not necessary for the parent to show that they have selected a perfect placement for the child or that it has mainstreaming opportunities. Frank G. v. Bd. of Educ., 459 F 3d 356, 359 (2d Cir. 2006), citing Warren G.v. Cumberland County School District, 190 F 3d. 80, 84 (3d Cir. 1999) It must only be ‘reasonably calculated” to provide educational benefit to the child. Bd. of Educ. v. Rowley, U.S. 176 (1982) The parent need not show that the school they have chosen furnishes every special service to maximize the child’s potential. You must look at the totality of the circumstances. Frank G.at p. 265.

The evidence presented shows that the child is doing well at and is receiving the services he needs there. At , the child is placed in a small class with three teachers (T 178,186) trained in special education and receiving speech/language therapy twice a week. (T. 218). These are needs that even the DOE has acknowledged on the child’s IEP. He can also speak to a psychologist when he has a need to do so. The evidence shows, as summarized above, that the child has made academic progress and well as progress in his social /emotional growth. As such, the is reasonably calculated to provide an educational benefit and is an appropriate placement for the child. Having found that the DOE failed to meet its burden to establish that it provided the child a FAPE and that is an appropriate placement, the only question remaining is whether the equities favor the parent. The DOE contends that because the parent signed contract with prior to the first IEP meeting and paid the fees, she had no intention of placing the child in a public school and that the equities cannot tip in the parent’s favor. The DOE’s contention is not supported by the evidence. Initially, at the time she signed the contract, the parent only paid the $8,000 deposit and chose the Tuition Management Service payment plan to pay for the rest of the tuition if the child remained at . This payment plan allowed her to make ten equal payments commencing April 1, 2011 to be completed by January 2012. (Ex. F) At the time of the May IEP meeting she had made only one or two out of ten additional payments that were due and did so for the purpose of saving a spot in the event the CSE did not recommend an appropriate program. The evidence shows that she would have considered a different public school placement if the program was appropriate. However, she was convinced that her son would not be able to function . She expressed those concerns to the CSE at the May IEP meeting and in letters. The CSE appeared to be non-responsive. Considering the placement that was recommended for the child, it is not surprising that the parent had such strong doubts, particularly where, as here, the parent’s request to speak to teachers at was denied. Parents are not obligated to “try out” a school district’s proposed placement to have standing to seek reimbursement relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484 (2009). By the same logic, parents need not try out the school district’s proposed placement before they decide to reject it in order for them to have the equities tip in their favor. Thus, in this case, the parent cooperated with the CSE to obtain an appropriate school placement for the child and that the equities tip in her favor.

ORDERED that the DOE shall reimburse the parent the full tuition for the 20112012 school year at in the amount of $45,960.00 within two weeks of the receipt of this decision. Dated: May 7, 2012

________________________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer

JTK:jj

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 1/5/12, 3 pp. B Parent Letter, 8/24/11, 3 pp. C Parent Letter, 9/21/11, 3 pp. D Division First Trimester Report,

September 2011-November 2011, 25 pp.

E Contract, 2/6/11, 2 pp.

F Affidavit, 10/24/11, 1 p.

DEPARTMENT OF EDUCATION

1 IEP, 5/20/11, 19 pp. 2 Classroom Observation, 11/3/10, 1 p. 3 Report Update, 3/23/11, 28 pp. 4 Final Notice of Recommendation, 8/17/11, 1 p.

1 Ms. indicated that Ms. is the person who chaired the CSE review; she’s a school psychologist. (T. 95). She is the witness who the DOE wished to call but was said to be unavailable at the time of the hearing despite the fact that the date of the hearing was selected by the parties in February. It was not reasonable for the DOE to expect that another adjournment would be granted on the day of the hearing. Thus, what she might have stated if she had appeared is pure speculation and will not be considered here.