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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: July 15, 2011
September 14, 2011
October 12, 2011
December 6, 2011
December 13, 2011
December 21, 2011
January 20, 2012
February 7, 2012
February 8, 2012
February 9, 2012
March 5, 2012
April 5, 2012
April 25, 2012
May 15, 2012
May 16, 2012
May 23, 2012
July 19, 2012
August 13, 2012
September 28, 2012
Actual Record Closed Date: December 19, 2012
Hearing Officer: Judith Schneider, Esq.
THIRD CORRECTED: February 14, 2013 (Order Clarification)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 15, 2011
Attorney — Student
Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2011
Attorney — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2011
Attorney — Student
Parents
Parents
CSE District Representative, — DOE
Assistant Principal, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2011
Attorney — Student
Parents
Parents
CSE District Representative — DOE
Assistant Principal (via telephone) — DOE
Teacher and IEP Coordinator, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2011
Attorney — Student
Law Graduate — Student
Parents
Parents
CSE District Representative — DOE
IEP Teacher (via telephone) — DOE
DR., School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2011
Attorney — Student
Attorney — Student
Parents
Parents
CSE District Representative — DOE
Education Administrator/Case Manager, CBST — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 20, 2011
Attorney — Student
Law Graduate — Student
CSE District Representative — DOE
DR., School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 7, 2012
Attorney — Student
Law Graduate — Student
CSE District Representative — DOE
School Psychologist (via telephone) — DOE
Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 8, 2012
Attorney — Student
Law Graduate — Student
CSE District Representative — DOE
School Psychologist (via telephone) — DOE
DR., Psychologist, (via telephone) — DOE
Teacher, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBUARY 9, 2012
Attorney — Student
CSE District Representative — DOE
School Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 5, 2012
Attorney — Student
Parents
Parents
Supervisor of Special Education, (via telephone) — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 5, 2012
Attorney — Student
Parents
DR., Transitional Coordinator (via telephone) — Student
Evaluator (via telephone) — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2012
Attorney — Student
Parents
Parents
DR., Pediatric Neuropsychologist (via telephone) — Student
Assistive Technology Consultant (via telephone) — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2012
Attorney — Student
Parents
Parents
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 16, 2012
Attorney — Student
Parents
Parents
Program Director, (via telephone) — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2012
Attorney — Student
Attorney — Student
Parents
Parents
CSE District Representative — DOE
DR., Psychologist — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2012
Attorney — Student
Parents
Parents
Summer Associate — Student
District Representative — DOE
DR., School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2012
Attorney — Student
Parents
Parents
CSE District Representative — DOE
Central Speech Supervisor (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2012
Attorney — Student
Law Intern — Student
CSE District Representative — DOE
On July 15, 2011,Sepember 14, 2011, October 12,2011, December 6, 2011, December 13, 2011, December 21, 2011, January 20, 2012, February 7, 2012, February 8, 2012, February 9, 2012, March 5, 2012, April 5, 2012, April 25, 2012, May 15, 2012,
May 16, 2012, May 23, 2012, July 19, 2012, August 13, 2012, September 28, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“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”). Claims arising under Section 504 of the Rehabilitation Act of 1973 were also asserted. (Ex. A )
POSITIONS OF THE PARTIES
The parents claim that the student was denied a free appropriate public education (“FAPE”) in the 2007-2008, 2008-2009, 2009-2010 and 2010-2011 school years and that the violations of the IDEA were gross The parents also claim that the DOE violated Section 504 of the Rehabilitation Act of 1973. They assert that applicable statutes of limitations (“SOL”) should be tolled in this matter. Further, with regard to consideration of the SOL they claim that their amended request was actually filed on November 24, 2010. The parents request “compensatory education in the form of services and extended eligibility for at least two years” and specify as the desired services individual tutoring, individual speech language service, individual job coaching services, transitional services for parents and student, assistive technology devices and trainings and an independent central auditory processing evaluation as well as DOE payment for previously conducted independent evaluations ordered in the course of this proceeding and transportation to the services ordered if necessary.(Exs. A, XXX)
The DOE denies that it failed to provide a FAPE in the school years claimed and denies violation of Section 504. It asserts the date of filing of the amended hearing request was June 2, 2011, and that the SOL bars many of the claims asserted by the parents.[1] Further, the DOE claims that the compensatory services requested are not appropriate for this student and unwarranted in the circumstances here.[2] (Ex. XXXI)
CASES PRESENTED
A. A list of documents in evidence is appended.[3]
B. DOE
The DOE presented the following witnesses:
Regarding the 2005-2006 and 2006-2007 school years:
Regarding the 2007-2008 school year: Dr. ,
Regarding the 2008-2009 school year: Dr. , , IEP Teacher at (“ ”);
Regarding the 2009-2010 and/or the 2010-2011 school years: , school psychologist; , CBST case manager; , Home Instruction AP;
Regarding the student at : Dr.
The DOE also presented the following witnesses in rebuttal of the parents’ claims concerning compensatory services/education: Dr. , regarding the independent neurological evaluation and its recommendations: , regarding the independent speech/language and assistive technology evaluations; Dr. , regarding transition issues and recommendations.
C. Parents
The parents presented the testimony of the following witnesses:
, the student’s grandmother:
, the student’s grandfather;
Dr. , the pediatric who conducted the March 2012 independent neuropsychological evaluation ( Ex. VV); pathologist who conducted the March 2012 independent evaluation (Ex. RR);
, the ”) consultant who conducted the March 2012 independent evaluation (Ex. GG); decision in this matter could be narrowed. Parents’ counsel asserted, and the DOE’s representative did not dispute, that although he made repeated attempts to have that discussion, he received no response.
Dr. , a transitional coordinator who issued the March 2012 report and recommendations regarding transition needs (Ex. II)
, Program Director, , regarding vocational training (Ex. JJJ)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings in the Factual Findings Section below are uncontested except as otherwise indicated. Additional relevant factual findings are included below in the “Amended Hearing Request “ and “Analysis and Conclusions of Law” sections. [4]
A. Factual Findings
1) Procedural History
This proceeding was initiated at the request of the student’s grandparents (“parents”), the student’s guardians by correspondence dated September 23, 2010.[5] (Ex.
B) A recommendation for a residential placement and a deferral to CBST had been made in March, 2010. (Ex. D) In the initial request the parents sought an immediate placement at (“ ”), New York State approved non-public school(“NPS”) located in Pennsylvania, as well as interim services (Ex. B) Impartial Hearing Officer Eric Nachman was initially appointed for this matter. On September 27, 2010, the CSE convened. (Ex. C) On October 12, 2010, the student was enrolled in . (Ex. 25)
An amended hearing request dated November 24, 2010 was submitted to the Impartial Hearing Office on that date but was not recorded in that office’s computer system or in the IHRS. (Exs. A, III ) The parties dispute whether the DOE’s representative was notified of the amended hearing request. (Exs. XXX, XXXI, Compare Exs. QQ and 55)
Subpoenas were thereafter requested of IHO Nachman which sought documents concerning the 2006-2007, 2007-2008, 2008-2009, 2009-2010 and 2010-2011 school years. (Ex. II) IHO Nachman, among other things, limited the subpoena to the 20082009, 2009-2010 and 2010-2011 school years. (T. 6-7, Ex. II) A hearing was scheduled for mid-January 2011, which was, among other things, to discuss the parents’ objection to the limitation of the subpoenas but was adjourned as were several scheduled hearings thereafter at the request of the district or by IHO Nachman who was gravely ill. (T. 8, 10, Ex.III) The DOE produced no documents pursuant to those subpoenas. (T. 40, Ex. IV)
I was appointed on June 1, 2011, after IHO Nachman’s death. (Ex. III) At that time impartial hearing office records and the IHRS indicated only the September 23 request. Upon my inquiry to counsel regarding the status, it was discovered that the November 24 “filing” had not been entered in the system and counsel, on June 2, submitted the document to the case manager. Although initially requesting retroactive filing, counsel, while specifically not waiving claims that the actual filing and acceptance date was November 24, 2010, agreed to proceed with the processing with the June 2 date to enable the immediate commencement of a resolution period in the system and the case moving forward as expeditiously as possible. (Ex. IV) My grant of amendment was recorded on June 8, 2011. The resolution period was not waived by the DOE and the resolution phase concluded on July 8th. (Ex. III)
The parents resubmitted in their entirety the subpoenas initially submitted to IHO Nachman seeking documents and the district objected. (T, 11, 37) Despite repeated instructions to specify objections prior to the July 15, 2011 hearing to, among other things, discuss the subpoenas, that was not done. (T. 10-11, Ex. IV) At the hearing, the district objected to the breadth of the subpoenas and stated that it wanted to file a motion to dismiss. (T. 16-20)
The district’s motion to dismiss various IDEA and Section 504 claims based upon the statute of limitations and/or for insufficiency and the parents’ answer, delayed by DOE attorney medical emergency and Hurricane Irene consequences, were submitted on August 11, 2011 and August 31, 2011 respectively. (Exs. VII, VIII) On September 7, 2011, I denied the district’s sufficiency motion as untimely and found the motion to dismiss to be unsupported by evidence in the record at that time and premature. (Ex. IX) Subpoenas for documents relating to the 2006-2007 through 2010-2011 school years were issued on September 14, 2011 after a hearing to consider the district’s objections. (Exs. 5, XI) A DOE request to conduct a bifurcated hearing to address SOL issues was denied. (T. 33-36) The testimonial phase of the hearing commenced on October 12, 2011.
On December 6, 2011, the second day of testimony, the parents requested an interim order requiring district funding for various independent evaluations. (T. 389-394, Ex. XII) On February 7, 2012, after receipt of memoranda from the parties, I granted independent evaluations. (Exs. XII, XIII, XIV, XV, XVI, XVIII, XVIX)
On January 20, 2012, the parents withdrew certain claims concerning the 20062007 school year. (T. 660-661, 665, 667, 667, Ex. XVII)
The initial compliance date in this matter after the filing of the amended request was in August 2011. The parties moved to extend the compliance date in view of extensive testimony and evidence, the scheduling of witnesses, and submission of closing memoranda and delays caused by Hurricane Sandy. In considering the requests I weighed the cumulative impact of the relevant factors 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 and the parties were provided with written decisions. (T. 23, 36, 50-60, 196, 280-282, 558559, 657-659, 845, 1389, 1509, 1659, 1869-1870, 2383, 2399, 2401-2402, 2563-2565, 2733-2735, Exs. II, XXIX )
The current compliance date is January 18, 2013. The record closed on December 19, 2012 upon my receipt of all agreed upon post-closing submissions. [6]
2) Student’s Educational History
The student is now . (Ex. C) It is undisputed that she has substantial developmental and learning disabilities including a diagnosis of and that she displays extremely . (Exs. C, D, E, G, H, R, T, V, 23, 25) She has been attending , an located in Pennsylvania, since October 12, 2010 when she was placed there by the CSE. (Exs. C, QQ, 25) She has a history, from at least 2006, of taking and she is currently taking . (VV-5)
The student has lived with her grandparents since birth and they have been her legal guardians since early childhood. (T. 1874-1875) Her mother also and has been diagnosed with . (Ex. R-2 ) Prior to the student attended only New York City schools.
(T. 1875-80) She has been receiving special education services since (T. 1876, Ex. 50) Her FSIQ was reported in January 2002 to be 63 as determined by the WISC III. (Ex. U) For the 2004-2005 school year, the , she was classified and she was placed in a class in a community school. (Ex. 33 )
For the 2006-2007 school year, her year, the student was in a class in a community school, classified as . (T.1877, Ex. 22) Mr. , the school psychologist who evaluated her in 2005 and in Spring 2006 testified, based upon his review of the documents presented to him, that he had observed no , and had concluded that the student was “too high functioning” for a District program, for which she had been referred by staff, despite her scores on the WASI he had administered. He observed that she did not present as intellectually deficient socially and had some scores. (T. 880-888, 897, 901,, 908, 914, Exs. 17, 33) However, he had strongly recommended additional tutoring. (T. 908) The team continued to recommend a class in a community school with . The student continued to be classified as . (Ex. 22) There is nothing in the record indicating that tutoring or any additional help was provided.
On May 30, 2007 a CSE meeting was convened and an IEP for the 2007-2008 school year was drafted. (Ex. H) There is no indication that a psychologist participated or that new testing was done. The student’s present performance was estimated by teachers to be at levels, at or below the WIAT-II levels reported by the prior year. (Ex. H, 22, 17) That IEP continued the classification and recommended a in a community school, (apparently 3x30 5:1) and modified promotional criteria. (Ex. H) It was noted that the student sometimes fabricated stories. (Ex. H) No was provided.
The student at ”) in September 2007. (1879, 626, Exs. DD, EE) She attended a program with classes including Regents algebra, global history and science. (T. 1882, Exs. DD, EE, H) The parents made a written request for an evaluation and (“ ”) staff also contacted the CSE and recommended a therapeutic day program. (Ex S.2) The dates of those initial communications are not in the record. A evaluation, dated April 8, 2008, was conducted by Dr. and a social history update dated April 9, 2008 was created by Ms. a social worker. (Exs. T, S) In preparing the update, staff was contacted with the student’s grandmother (“ ” or “the parent”) present and the student’s history was discussed. (Ex. S) Subsequently, received records showing treatment since 2006. (Ex. V) Information provided by was provided to the CSE and included in the IEP. (Compare Exs. G, S, V)
The CSE convened on April 16, 2008 and attendees included and the student’s grandmother (“ ”). (1900-01, Ex. G) The IEP created (“2008 IEP”) changed the student’s classification from and recommended a 12 month program in an alternate assessment “special class in a specialized school (D ), ” with related services of speech/language therapy 7, (“ ”) three times a week (3x40 5:1) and twice a week (1x40 and 1x40 ). (Ex. G) The CSE intended the recommendation to be implemented as soon as possible and within two weeks. (T. 545, 722) No placement was immediately provided, however, and the student remained at for the rest of the 2007-2008 school year. (T. 736-737) Although services had been initiated by the CSE, there is no indication that that was provided during the remainder of the 2007-2008 school year. There was no testimony concerning provided during the 2007-2008 school year and no evaluation or progress report in or for this period is in the record.
Although a 12 month program was recommended for the 2008-2009 school year, it is undisputed that no placement was provided for the Summer 2008. The student did not receive any educational services, related services, or transitional services during
OTC refers to “Occupational Training Center.” Summer 2008. (T. 724-725) On August 20, 2008, the student was hospitalized at for nine days due to , noncompliance with . (T. 2132-2133, Ex. R)
In September 2008, the parents returned the student to . (T. 1918, 2140) On September 10, 2008, , the principal and an AP, convened with both parents present to create an Interim Service Plan (“ISP”), then used when a placement was found quickly enough or there were other delays in implementing an IEP. (T 721, 757, Ex. F) The ISP stated that the student required intensive supervision and again recommended placement in a District class and it intensified the mandate, providing more than recommended in the April 2008 IEP. (T. 749-750,755, Exs. E, F) On September 15, a Functional Behavior Assessment (“FBA”) and a Behavior Intervention Plan (“BIP”) were created. (Ex. Q) There is no claim that there was a previous FBA or BIP at and none were referenced in the 2007 or 2008 IEPs. (Exs. H-6, G-4)
The student was moved to ”) on October 16, 2008. (T. 337, Ex. 3) It was acknowledged that BSCD did not receive the 2008 IEP, the FBA and BIP, or any student evaluations and had no knowledge of any but was aware, via DOE computerized records, that a program and certain mandated services were recommended. (T. 346, 367-368, 372-373, 379-380, 466) The student was placed in a class. It was acknowledged that nothing in the records indicated that she received for at least the first half of the year and that it appeared that she had not. (T. 347) There is nothing in the record indicating any attempts to obtain the prior IEP (still in effect), evaluations, social history and FBA and BIP. Those documents would have provided information concerning the student’s history which it was acknowledged did not have. (T. 466) There is nothing in the record indicating attempts to obtain information from any source other than the DOE computers.
On January 28, 2009, more than three months after the student’s arrival, because had no IEP the CSE convened to develop an IEP (the “2009 IEP”). (T. 367-368, 372373, 379-380, Ex. E) The parents were not present. (T. 1975-1978, Ex. E) The 2009 IEP recommended a D 12 month program and related services ( twice per week and counseling (group) once per week), a reduction in services previously mandated. (Ex. E.1, 15) The 2008 IEP still had not been obtained and the CSE specified it was changing to a 12 month program although that was provided previously. (Ex. E-2) It is undisputed that no evaluations whatever had been obtained or considered by the CSE. (T. 372-373) The school was not aware of the student’s at the time the 2009 IEP was developed or during the balance of the 2009-2009 school year. (T. 466) The student attended for the remainder of the school year and returned for the 2009-2010 school year. (T. 2145, 2083-84, E-14)
Although a 12 month program was recommended for the 2009-2010 school year, the record is virtually devoid of evidence with regard to the contents of the student’s school program during Summer 2009. It was acknowledged, however, that the student was not participating in a job internship student available to some students or in a summer work program. (T. 329-330, 332-333)
The student was admitted to on August 18, 2009 and was not discharged until September 21, 2009; she was readmitted on October 16, 2009 and discharged on December 21, 2009. (Ex. 59 8 ) Dr. , the student’s in a letter to the CSE dated September 9 , 2009 reported that all lesser levels of care had been unsuccessful and recommended a residential educational placement. (Ex. K) The student attended for a period but that period cannot be determined from DOE records which were acknowledged by staff to be inconsistent in various particulars. (T. 505-506, 510, Exs. 3, 14) I find the attendance and discharge records unreliable for any purpose. By letter dated October 30, 2009, Dr. again wrote the DOE, this time mailing the letter directly to it, and repeated that the student required a residential placement. (T. 2151-2152, Ex. L) Dr. dated December 10, 2009, states that the student was admitted for away, noncompliance with medications and acting . (Ex. O)
On November 9, 2009, , a DOE psychologist who had also evaluated the student in 2002 but could not recall that evaluation, conducted a (the “2009 DOE evaluation”)
(T. 974, Exs. P, U) characterized her verbal exchanges with the student as “overall was noted throughout the session. (Ex. P) There is no evidence in the record indicating
8 Although the source of the information provided in Ex. 59 is unclear, it was submitted by the DOE which presumably is not disputing its contents. Further, as discussed below, the information is consistent with the testimony of with regard to what occurred in Fall 2009. that Ms. consulted with Dr. or other in connection with that evaluation and does not recall whether that was done. (T. 1002) testified that it was her understanding when she visited the hospital that was preparing to discharge the student but that, possibly, they did not do so because there was no placement. (T. 1010-1011)
The student was discharged from the hospital on December 21, 2009. (T 2148, Ex. 59) The parents assert and I find credible, notwithstanding contradictory and inconsistent school office records, that she did not return to school after that. (T. 2155, Exs., 3, 14)
On January 5, 2010, the CSE convened, with in attendance, but an IEP was not created. (T 1309-10) At the meeting, informed the CSE that she would be taking the student to Trinidad from January 14 until February 24, 2010. (T. 1348, Ex. 36) A letter requesting the student’s discharge from the DOE was, I find, drafted by CSE staff and signed by the parent. (T, 991-992, 1311 Ex. 36) The parent contacted the CSE upon her return from Trinidad in late February. (T. 1924, 2013)
The CSE convened and an IEP was created on March 4, 2010 (the March 2010 IEP”) (Ex. D) The student’s classification remained and the IEP noted and that the student’s . (Ex. D) The CSE recommended a deferral to the CBST for a residential placement and related services of with home instruction (“ ”) until a placement was found. The amount of was not specified. (Ex. D) It is uncontested that was scheduled for two hours per day and she began in April and continued until the end of the 20092010 school year. (Ex. XXX) WW claims that the student commonly received only 2-3 sessions per week because of cancellations by the DOE. (T. 2162) Documents indicating attendance information were submitted but the teacher, who had been scheduled to testify, refused to appear. (Exs. 6, 7, 10,11)
It is uncontested that during the 2010-2011 school year, was provided through the end of the summer session in mid-August. The DOE contacted the parent with regard to the resumption of on September 14. (Ex. 8) It is uncontested that it resumed October 4 and that six hours were provided through October 8. (Ex. XXX)
It is undisputed that during the entire period of home instruction the student received no related services. Related services for students are not provided by HI but must be arranged through the CSE. (T. 225-226) HI was limited to specific courses. (T. 232, Ex. 12) However, students pending CBST placement are entitled to all their recommended services. (T. 619-620)
By March 11, 2010, the CBST had received the referral and the matter of locating a placement was assigned to . (T. 590, Ex. 26) It was acknowledged that the CBST was required to find a placement by April 22, 2010, 30 school days after it received the referral. (T. 634-637, Ex. 26) See 8 NYCRR 200.4(e)(1) and 8 NYCRR 200.6. The CBST sent the student’s informational packet to various schools in New York State on April 1. (T. 630, Ex. 26) Rejections were received from all by May. (T. 591) No further packets were sent until August when packets were sent to some out-of-state approved schools, including Devereux, as well as to a few New York State schools which the CBST believed were not appropriate. (T. 629-631, Ex. 26) DeNoon was on medical leave for about two months and returned in late August or September. (T 601-602) She had no knowledge concerning her replacement, if any, and/or any actions taken by any replacement. (T. 602-603) There is no evidence or claim concerning any DOE action between the rejection of the initial packets by May and the contacts to out of state schools in August.
contacted the parents in August 2010, and the parents visited the school later that month. (T. 2172-2173) By letter dated September 2, 2010, notified the CBST that the student was accepted, contingent on funding. (Ex. N, MM) The parents were also notified and accepted the placement. (T. QQ) The DOE however, did not issue an approval at that time. (Exs. QQ, CCC)
With regard to the student’s program after the conclusion of the summer term and pending CBST placement, the parents were initially contacted on September 14, 2010 but no services were provided at that time. (T. 1933-45) The DOE asserts that the parent requested a particular teacher who was not available until October. The parent asserts that she was not informed that her preference would in any way cause a delay.
On September 23, 2010, the parents filed the initial impartial hearing request seeking immediate funding for the student’s placement at as well as interim services pending that placement. (Ex B)
After repeated requests to the DOE for implementation of educational and related services, on October 4 the parents requested a pendency hearing. (Exs. QQ-7 and 22-26,
B) That request was withdrawn later that day when the DOE provided assurances that services would be implemented. (QQ-7-8) It is undisputed that services commenced on October 4 and the student received 6 hours through October 8. Related service authorizations for were issued on October 5, 2010 but were not implemented. (Ex. 46) The CSE convened on September 27, 2010 and recommended a “New York State Approved Non Public School Residential” and counseling (1x30 3:1) (Ex. C) The student was admitted to Devereux on October 12, 2010. (Ex. 25)
B. Analysis and Conclusions of Law
1) IDEA Statute of Limitations Issues
The parties agree that under the relevant provision of the IDEA applicable in New York a party may present a complaint which sets forth an alleged violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged violation that forms the basis of the complaint. 20 U.S.C. 1415[f][3][c] There are however two exceptions: when the complaining party was prevented from requesting an impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information that was required to be provided to the parent. 8 NYCRR 200.5[j][1][i] The SOL is an affirmative defense and accordingly the burden is on the district. Appeal No. 11-121
The parties dispute the date of accrual of the parents claim with regard to the determination of when the parents knew or should have known about the violations. I do not address that issue and the parties’ claims with regard to it in view of my finding that the parents’ claims in this matter are not barred by the SOL because the record does not demonstrate that the parents received notice of their due process rights sufficient to inform them they had the right to bring an impartial hearing.
The parents claim that they did not become aware of the right to request an impartial hearing until June-July 2010 when informed of that by a doctor at “ ” facility, and that they then immediately sought an attorney. (T. 2183-2184, see also T. 18611965, 1966-1967)
The DOE relies upon notices alleged to have been appropriately provided, consents alleged to have been obtained and IEP meetings alleged to have been appropriately held. (Ex. XXX) However, the DOE has proffered few notices and those I find do not support their claim. Further, I note, although not required for my determination, that there has been no been no testimonial evidence regarding DOE procedures concerning the mailing generally and what is actually routinely affixed to those communications nor has there been testimony as to the whether rights were discussed at IEP meetings attended by the parents.
The parents have denied receipt of the documents relied upon by the DOE. (T. 1958-1966, 2183-2184) Their testimony that mail is routinely stolen or destroyed and since delivery is very unreliable, for some 20 years they have maintained a Post Office Box and had provided that information to the DOE is credible and is supported by DOE records from 2002 showing a post office box, albeit inaccurately stated. (T. 2121-2130, Ex. 51) Further, they testified that an incorrect and/or incomplete street address was used by the DOE when mail was sent to them because the apartment number was incorrectly stated and in those circumstances they would not receive it. (T. 2224)
As discussed herein, the documents relied upon show a variety of addresses even from the same school, and/or do not indicate actual mailing or delivery even when that information is required as in several IEPs, discussed below.
Further, with regard to the reliability of the DOE evidence, I note that the DOE in its closing memorandum relies for its claim that notification of rights was provided upon documents whose admission as DOE exhibits was denied because although initially represented to be true copies of documents in DOE records, they were patently and admittedly not. (T. 2741-2745 discussing exhibits identified as numbers 38-41, IHO Ex.
XXXI) The DOE unsuccessfully sought to have admitted into evidence Final Notices of Recommendation purported to be copies of documents in DOE records that had been sent to the parents in 2005, 2006, and on August 18 and October 6, 2008. The parent denied receipt of those documents which, I note, all had a street address but no apartment number at all. Each of the documents identified as Chancellor and the DOE representative acknowledged that Mr. did not have that position until many years later.
(T. 2741) I also note that notwithstanding the denial of admission, in its closing memorandum the DOE also relies on the August 18, 2008 purported FNR to support its claim that a school (“BSCD”) had been offered prior to September 2008. That the parent would have received and ignored an FNR that provided the transfer the DOE acknowledges she and the student’s therapist had been seeking since at least April is simply not credible. (Ex, S)
With regard to the documents admitted into evidence, I note the following:
The June 7, 2006 IEP which the parent participated in, does not provide any information about notice or IEP mailing and its address specifies an apartment number the parents assert is incorrect. (Ex. 22)
The May 30, 2007 IEP does not provide any information about notice or IEP mailing and its address specifies an apartment number the parents assert is incorrect. The parent did not attend and credibly testified that if she had received notice she would have attended. (T. 1878) I note that she testified that she was retired at that time. (T. 1878)
With regard to notices for the 2008 IEP: The March 14, 2008 notice does not have a mailing address and for the student’s address specifies an apartment number the parents assert is incorrect. (Ex. 42) The April 9, 2008 notice does not have a mailing address and for the student’s address specifies an apartment number the parents assert is incorrect. (Ex. 44) This review was requested by the parents and attended. The IEP does not indicate that it was mailed and the address specifies an apartment number the parent asserts is incorrect.
The January 28, 2009 IEP, was not attended by the parent although the IEP specifies a notice and then later the IEP were sent. (Ex. E) The parent testified that she was out of the country at the time and did not receive a copy. (T. 1977)
The March 4, 2010, IEP, which the parents participated in, specified the post office box number. (Ex. D) Although a notice was indicated to have been sent it was not submitted in this proceeding and there is no evidence as to the address specified. The evidence shows that the meeting was arranged pursuant to the parents’ telephone call informing the CSE that they had returned and accordingly, the parents attendance therefore does not indicate receipt of any written notice.
After the parent’s May 14, 2010 letter to the CSE, which noted repeated requests and stated that the proper address was the box number (Ex. KK), related service authorizations issued the following October specified only a number with no indication that it was a post office box. (Ex. 46) I conclude that a mailing to an address so stated would be likely to be deemed undeliverable.
Finally, although the parents acknowledged that they received notice as to the existence of certain rights in 2002, that does not, I find, support a conclusion that these parents therefore should have been aware that they had the right to bring an impartial hearing in connection with 2007-2008 and thereafter claims. (Exs. 50, 51, 52, 53) I note with regard to that conclusion the requirement that notices are to be provided at least once a year indicating concern that the information in them would be forgotten and, further, that these are unsophisticated parents as the record demonstrates. See e.g. Draper v. Atlantic Ind. Sch. System, 518 F. 3d 1275 (11th Cir, 2008) I also note that the four documents submitted for that year bear three different addresses, and that the one on which the post office box is specified states it incorrectly. (Exs. 50, 51, 52, 53)[10]
I find the parents claim that they were unaware of their right to seek an impartial hearing credible. Further, the record does not demonstrate that they were informed of those and other rights. Accordingly, I find that the parents’ claims in this proceeding are not time-barred.
b) Amended Complaint Filing Date
In view of my findings with regard to the Statute of Limitations, I do not address the parents claim that the filing date of the Amended Complaint should be deemed to be November 24, 2010.
3) FAPE Considerations During Various School Years
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The DOE has the burden of proof with regard to all issues concerning its provision of a FAPE. Educ. Law 4404[1][c]
The parents claim that the district failed to provide a FAPE for each of the 20072008, 2008-2009 and 2009-2010 school year and for a significant part of the 2010-2011 school year. For the reasons discussed below, I conclude that the district has failed to establish that it provided a FAPE in the period claimed.
1) 2007-2008 school year
The CSE convened on April 16, 2008 after, among other things, a request from the parents who were concerned about the placement and program. (T. 679, Ex. S) It was known to the CSE that the student was at that time on behavior and thoughts. (T.
690) The IEP noted teacher reports of severe teasing which she was not able to manage and that students provoked actions from her and then laughed at her responses. (Ex. G) It also referenced information in a report from stating a history of, among other things, . (Exs G, S) A social history had been prepared for the review and noted that the parent reported that the student complained of and, further, that a community based therapist recommended a more therapeutic setting and specifically recommended a day treatment program. (Ex. S) The CSE classified her at that meeting, and a District 12 month program was recommended and was initiated. (T. 750-753) Further, the CSE concluded that an would benefit this student rather than . (Ex. G-4)
Dr. evaluation and participated in the review and the evidence shows he was present when the staff discussed the . (Ex. S) He testified that at that time the student’s management needs were more than a community school could offer. (T. 727) Further, at that time was interfering with instruction. (T. 742) The CSE’s expectation was that its recommendation for a transfer would be implemented immediately or within two weeks. (T. 545, 722) However, Dr. could not recall any follow up after the IEP to see if the student had been moved and no evidence was submitted indicating that had occurred. (T. 748) Further, although Dr. characterized the student’s situation as a severe issue, I note that the District Placement Office Referral Form indicates no special alerts and does not specify that a placement needed to be found immediately. (T. 536, Ex. FF) It is undisputed that the student remained in the same program until the end of school year, two and a half months later. (T. 737) Dr. also acknowledged that she was taking an algebra class that was tracking Regents Algebra which subject was not appropriate for this student who he had determined, using the WIAT-II, was at a mid math. (T. 736738, Ex. T-6) There is nothing in the record indicating that counseling was implemented or that any other accommodation made or action taken to alleviate the severe adverse circumstances acknowledged by the CSE. Rather, the evidence supports a conclusion that after the review the student was simply abandoned or forgotten. I conclude that a gross failure to implement the IEP occurred for a substantial period of time and is sufficient to support a conclusion that the DOE failed to provide a FAPE for the 20072008 school year.
With regard to the parents’ claims concerning the earlier portion of the school year I note the following: I find Dr. credible in that I find that he testified accurately concerning his recollections and current understanding based upon his review of the documents presented to him. Although the date of the parents’ request for a reevaluation is not in the record, the parents have not asserted that the response to that specific request was untimely or unduly delayed and I therefore conclude that it was not. Although the student had been receiving treatment for psychiatric issues throughout her attendance at , there is no evidence or claim that that was made known to school officials or the CSE prior to the instant review and I conclude that it was not. Further, I find credible the parents testimony as to what they believed and their recollection of what the student reported to them concerning her interactions with the other students. However, I conclude that the student was not a fully reliable reporter concerning the circumstances of the incidents and the parents’ testimony was principally non-specific with regard to dates, persons spoken with and the precise communication made about their concerns. Further, it was supported by no documentary evidence.
However, I conclude that the DOE has failed to establish that the 2007 IEP was properly implemented at and that the program provided to her there could enable this student to make meaningful educational gains. There was no testimonial evidence regarding the program and no school witness other than Dr. . I note that the student was taking a regents level algebra course and other Regents classes. Although documents reported she had passed. I find that not credible as a measure of her success in the program when her math ability tested at in April 2008 when Mr. , using the same instrument, found her to be at a level in May 2006. (Ex. 17-3) In the circumstances and in the absence of testimonial evidence concerning the program, the other grades reported, in view of the student’s cognitive level which was reported later in the year to be testing at a full scale IQ (“FSIQ”) of 42, are similarly suspect. Accordingly, I find a DOE failure to provide FAPE for the entire 2007-2008 school year. However, I also note that I am persuaded that there were significant negative interactions involving the student and her peers that school officials were aware of prior to the April 2008 evaluation.
2) 2008-2009 School Year
The evidence, discussed above, shows that without regard to whether the 2008 IEP was defective, the DOE failed to implement it and provided none of its recommended program and services during Summer 2008. (T. 724-725) Further, as discussed above, with regard to SOL issues, I do not credit the DOE’s claim that it offered the parents a placement on August 18, 2008, allegedly supported by an unreliable document whose admission was denied. (Ex. XXXI) I find credible ’s testimony that a placement was not offered to her until she visited district offices in downtown Brooklyn in mid-October 2008 in an in-person appeal. (T. 4045, 2046-2050) I note that staff had no knowledge of any placement and developed and implemented an ISP and an FPA and BIP because there was a failure to implement the IEP. There is no indication that any efforts were made by staff to determine why the student had not been placed or even if the referral had been received. The student continued in what was at that point known to be a stop-gap placement which it was acknowledged could not meet her needs. Further, although the FBA/BIP reported and proposed strategies, there is no indication that either the parents or was contacted or consulted with regard to its creation and provisions. Based upon the foregoing, I conclude that the student was denied a FAPE from July 1 through October 15, 2008, her last day at before her transfer to a District program. Accordingly, I do not address other claims relating to this period except to note my finding as to Dr. ’s credibility as set forth above with regard to the 2007-2008 school year.
Further, I find the denial of a FAPE in the 2008-2009 school year did not cease upon the student’s transfer. The student was transferred to a District program, on October 16, 2008. (T. 470-472, 499, Exs 3,14) The undisputed evidence, discussed above in the Factual Findings section, shows that never received the 2008 IEP, the ISP, the or any of the evaluations and had no knowledge of the student’s history. There is no indication that any attempt to obtain these documents was made. Rather, I conclude that staff had no knowledge concerning this student’s particular deficits and needs but merely deposited her in an available classes. Indeed it was also acknowledged that even though the student’s speech mandate was known to , it appears that was not provided for at least half a year. Therefore, I conclude that the 2008 IEP was not implemented at from the time of entrance until it was superseded on January 28, 2009.
Although the CSE eventually did, on January 28, 2009, develop an IEP, the evidence shows that that IEP was defective. It is the DOE’s burden to establish that the recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025.
In the instant matter, there was no evaluative material whatever from the student’s prior placement (as described above), the CSE failed to conduct any new evaluations and no information was obtained from the parents who did not participate in the review or otherwise provide information. Moreover, had no information concerning the student’s and that information would have been available if the student’s prior records had been obtained. (T. 466) I also note that there is no evidence or claim that staff attempted to obtain the evaluative material to consider in the review. Accordingly, the CSE had no basis upon which to conclude that the continuation of the District program it recommended was appropriate for this student or whether another program/placement at that time was necessary to enable the student to make meaningful educational gains. Further, no explanation for the change in related services was provided at this hearing or in the documentary material submitted. Although various report cards for the student during her enrollment at were submitted, I give them little weight here where they were summary reports there was no testimony from anyone who knew the student. (Ex. 2) I conclude that the January 2009 IEP in effect for the balance of the 2008-2009 school year was not reasonably calculated to enable the student to make meaningful educational gains and was defective.
Based upon the foregoing, I find a failure by the DOE to provide a FAPE for any part of the 2008-2009 school year.
Accordingly, I do not address the parents other claims concerning the 2008-2009 school year program However, I include herein my findings with regard to the parents credibility concerning “bullying” reported to them but note that with regard to this school year and that issue that the testimony was general and non-specific and not bolstered by any documentary evidence.
3) 2009-2010 and 2010-2011 School Years
a) With regard to this 2009-2010 school years, I have found, as discussed above, that the 2009 IEP in effect until superseded on March 4, 2010 was defective.
b) Evaluations and CSE reviews:
As discussed above in the Factual Findings section, the student had extensive periods of between August and December 2009 but was in school for a relatively brief period between them. (Ex. 59) WW credibly testified that on September 10 he delivered Dr. ’s September 9 letter to the school and requested a reevaluation. (T. 2144-2145) That testimony was not rebutted and I note is consistent with the parents’ concern over an extended period about the need for a different and more supportive environment. WW confirmed a week later that the letter had been given to an appropriate person. (T. 2445) There is no evidence or claim that written consent for an evaluation was obtained at that time and I conclude that it was not. There is no evidence or claim that a reevaluation commenced at that time and I conclude that it did not. There is no evidence or claim that the CSE informed the parent that an evaluation was refused. See 8 NYCRR 200.4(b)(5)(iv). I conclude that the parents’ request was ignored.
The student was still in September 9 letter was delivered. (Ex. 59) She thereafter resumed attendance at BSCD. (T. 2147, 2155, Ex. 59) WW further credibly testified that in October the parents were telephoned and told to remove the student because she had been and that the principal told him when he arrived that the student was not to be brought back unless a doctor said she to return. (T. 2147-2248) I note that this testimony was not rebutted. Further, it is also noteworthy that evidence submitted by the DOE specifies that an evaluation commenced on October 9. (Ex. 59) credibly testified that the DOE had no further communication with the parents until after the student’s discharge from . (T. 2156; see also T. 990, 998) That testimony ws not rebutted. That discharge occurred on December 21, 2009. (Ex. 59) In that period, had conducted her November 9 evaluation and formed the opinion that the student might have been discharged but for the absence of a placement. (T. 1010-1011) I conclude that the parents were not notified of the CSE evaluation, their consent was not obtained and information from them was not obtained prior to the January 2010 review eventually scheduled. The absence of written consent and communication with the parents I find noteworthy as a further demonstration of DOE disregard for appropriate procedures in this matter.
acknowledged that placement efforts can commence while a student was hospitalized so long as there is an IEP and that the likelihood was that a substantial amount of time would be required to find a placement for this student. (T. 1012-1013) I note that a review can be conducted while a and that in view of the date of the parents’ evaluation request, it could have been completed long before the January 2010 CSE review date if the DOE had acted promptly. See 8 NYCRR 200.6
Ultimately, it was not until March 4, upon the parent’s return from Trinidad that a CSE review was held and the recommendation for a residential NPS placed on the IEP.
c) CBST and Placement Activities:
The evidence shows that the CBST received the referral from the CSE on March 11, 2010. (T 509, Ex. 26) The CBST was required to find a placement within 30 school days of its receipt of the referral, in this case by April 22. (T. 634-637, Ex. 26) See also
8 NYCRR 200.4(e)(1) and 200.6. Packets were sent out on April 1 to several New York State schools but all rejected the student by May. (Ex. 26) It was not until August 2 that packets were sent to out of state schools. (Ex. 26) Some packets were sent at that time to in-state schools but Ms. , the case manager, testified that those schools were known to the to be not appropriate for this student. (T. 629-631, Ex. 26) had been on medical leave for about two months but returned in late August-September. (T. 602) She had no knowledge as to whether anyone or who replaced her. (T. 601-602) I conclude that there were no efforts made to find a placement subsequent to the initial rejections, received by May, until August. I note that credibly testified that the only suggestion made other than occurred in late summer or early fall. (T. 2169-2170, 2183) To the extent that DeNoon’s testimony may indicate otherwise, I do not find it credible and note that it is supported by no documentary evidence. testified that although she usually creates case notes, she did not do so in this case and she testified repeatedly as to an inability to recall.
(T. 605, 606-607, 612) I find that no legitimate reason for the delay before out of state placements were sought has been asserted or established by the DOE.
Further, with regard to the period of time between the acceptance by Devereux and the placement, I find that the DOE was still seeking a New York State placement and was dilatory in approving . I note the credible testimony of that the DOE had informed him that an application to a school was being made but the parents learned upon inquiry to the school that it had not yet opened and no date for that had been set. (T. 2183)
Based upon the foregoing, I find that the DOE failed to provide a FAPE for the 2009-2010 school year and through October 15, 2010 of the 2010-2011 school year. In view of these findings, I do not address other parent claims with regard to those school years.
D) Section 504
The parents assert claims under Section 504 of the Rehabilitation Act. Specifically, the parents assert that the DOE failed to take appropriate steps to address bullying and harassment at both although there is an affirmative duty on schools to do so.
However in this matter, I conclude that has not been established. I note that the claims rest principally on the parents’ reports of the student’s claims to them, that other than a short period prior to the 2008 IEP, in which IEP the issue was addressed, there is virtually no documentary evidence that this was brought to either school’s attention or that the school was aware of a particular problem and there is an absence of specificity in the testimony with regard that and with regard to dates generally.
Under Section 504, discrimination must be established by evidence that: 1) the DOE intentionally acted on the basis of the disability; 2) the DOE refused to provide a reasonable modification; or 3) a DOE’s rule disproportionately impacts disabled people. See Washington v. Indiana High School Athletic Ass’n, Inc., 181 F. 3d 840, 847 (7th Cir.), cert.denied, 528 U.S. 1046 (1999) Although “[i]ntentional discrimination may be inferred when a school acts with gross negligence or reckless indifference in depriving a child of access to FAPE’, R.B. v. ex. Rel Board of Education of the City of New York, 99 F. Supp. 2d. 411, 419 (S.D. N.Y.), I find the evidence insufficient to demonstrate that that occurred here.
E) Requested Relief
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) Further, “[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).” Appeal No. 11-027 “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027
In the instant matter, I conclude, based upon the foregoing discussion of the deprivation of a FAPE, that there was a gross violation of the IDEA for a substantial period of time. To the extent that the student received some educational services during that period, the evidence is insufficient to determine the precise nature of it or to what extent it actually was appropriate for and provided benefit to this student or, as discussed below, that educational progress was made.
Further, I find that the parents have cooperated fully and have not significantly impeded the CSE. The student’s in January-February 2010 was during the period when, had the CSE made the residential placement recommendation earlier, the CBST would have been looking for a placement. It is unknown what the parents would have done if a search was actually ongoing and the consequence of the absence is appropriately viewed in the context of the DOE’s numerous and extended failures in this matter. Further, I conclude that these unsophisticated parents did not deliberately withhold documents and information concerning the students but rather the DOE failed to consult them as required. I note that the last social history update prior to the acceptance in the record was conducted in April 2008 and the student’s mental health provider participated in that. (Ex. S)
With regard to the DOE’s claims that the student had benefited from and progressed in the educational programs it provided, for which it has cited no record support, I find that progress from the 2007-2008 school year to the admission had been minimal at best. (Exs. W, 2, 334, 17, T, P) I note that Dr. , the concluded the same based upon her comprehensive review of the student’s educational history. (Ex. VV) The DOE’s claim, in its essence, is that nothing more could have been expected. (Ex. XXXI)
Further the credible evidence shows that the student, if given appropriate support can make progress with regard to academics and has done so (T. 1224, 1227-1229, 1243-1244, 1456, 1775, Ex. VV) The evidence also shows that she can learn a target skill relevant to employment and is motivated to learn. (T. 1227-1228, 1246-1247, 1456, 1474) I note that both psychologist Dr. and independent evaluator Dr. testified that the student’s functional and adaptive skills are at a higher level than her standardized testing scores would suggest.
(T. 1163-1164, 1689, 1695-1700, 1708, Ex. WW)
Accordingly, I consider the parents’ requested relief and the requirements of an appropriate compensatory program in this case. I note with regard to that issue that no position relating to the quantity or quality of the remedy sought for any year in particular has been specified by the parent so that meaningful compensation could be awarded for any specific school year. Appeal No. 11-121. and sessions not provided are difficult to determine in view of the student’s absences which cannot be accurately determined from the evidence in this matter as well as the lack of any DOE evidence showing what was provided to the student before the CBST deferral. Further, the HI records with regard to attendance from April-August 2010 are incomplete and disputed. I also note that the DOE has failed to present any evidence with regard to what would be appropriate should entitlement be demonstrated but has merely objected to the parents’ proposals although it has the burden of proof and persuasion. Appeal No. 11-091 at n.10. Moreover, even had one to one equivalence been determinable, I conclude that it would be inappropriate in view of the student’s age and increased need for vocational training and the attainment of sufficient functional skills to maintain that. (Ex. VV)
I find first that the student is entitled to an extension of eligibility of two years. Since the student will be 21 in December 2013, her period of eligibility will continue through June 30, 2016. Educ. Law 3302[1],4401[1],4402[5][b]. I have found a gross violation of the IDEA for an extended period. I note particularly with regard to that finding that from midApril through mid-October 2008 the student had no placement or services at all or was in a placement that the CSDE acknowledged could not meet this student’s needs and I conclude that in this student’s circumstances, there was a complete denial of a FAPE for that entire period (Ex Q) Further, there is no indication that had obtained or conducted any evaluations or other evaluative material for this student until November 2009 when the student had been enrolled for more than a year. Indeed, it had not even obtained the student’s IEP but nevertheless placed the student in classes from October 2008-January 2009 with no information about her at all and thereafter with an IEP it formulated with no knowledge of this student’s unique needs. Finally, I note the delay in undertaking a reevaluation in Fall 2009 followed by the delay from May 2008 with the result that it was not until October 2010 that she entered a facility. No reliable evidence has been presented to support a conclusion that the student received any educational benefit from in that period and no related services were provided. (Exs. 6, 7) I note that the student’s teacher was under the DOE’s control and did not testify.
I turn now to the parents requests.
a) ”) Evaluation
Both Dr. , the , noted disparities between the student’s IQ and her adaptive functioning. (Exs. VV, 25) I also note that past evaluators, although conducting adaptive functioning testing, have made similar observations with Mr. recommending against a District placement because the student appeared to be functioning at a higher level than her IQ indicated. (Ex. 33)
Dr. acknowledged that the IQ score that she obtained was consistent with many past assessments and indicated moderate ”) (T. 1733) However, she opined that the student’s adaptive score was a better indicator of the student’s cognitive capacity and diagnosed mild . (T. 1695) She opined that this student had remarkable deficits in language processing, among other things, which could be a barrier to a higher IQ test result. (T. 1695, 1704, Ex. VV-20) Acknowledging that typically persons with have language processing difficulties, she stated that they are below average in all developmental and neuropsychological constructs but this student is atypical in the degree difficulties and her impairment exceeds what one would expect in the mild range. (T. 1745, 1769)
Dr. , in rebuttal, did not dispute the description of but asserted that consistency of the student’s IQ scores over past testing was the best measure of their reliability and validity.
(T. 2267, 2271-2273, 2282, 2329) With regard to adaptive functioning scores, he stated that was her area of strength in adaptive skills and that a student who presented well socially could give the impression that they were cognitively higher functioning than they in fact were. (T. 2268) Further, he opined that the were in all areas of processing and that she did not get much higher scores in areas. (T. 2268, 2271-2172) Dr. did not see evidence of any central auditory processing disorder. (T. 2387, 2366) Dr. stated, however, that Dr. ’s evaluation was thorough and conducted according to best practices but they had reached different conclusions. (T. 2272, 2377) He acknowledged that he had not seen the SL evaluation, that that could identify potential and that that could have informed Dr. ’s conclusion. (T. 2368) , , testified that cannot be identified through cognitive or academic assessments and that the student was functioning higher than her would indicate. (T. 16181619, 1622-1633, Ex. RR) could be addressed in part by therapy (T. 1804, Ex. VV-22) but also by computer-based programs to address which an can provide. (T. 1630, 1642) I note that , who testified for the DOE in rebuttal, did not dispute but rather expressed concerns relating to a possible difficulty in interpreting the results of the test. (T. 2611-2614) I conclude it is established that could be a factor affecting this student’s performance and there is a treatment which might improve performance. In these circumstances, a evaluation will be ordered.
However, I find no basis for the parents’ request for an independent evaluation. If the parent is dissatisfied with the evaluation provided by the district, they may seek an independent evaluation as set forth in applicable regulations. However, the order in this matter will require that the evaluation be timely.
b) Transition related services
There is little evidence concerning transition activities or programs that have been previously provided although it was acknowledged that this student did not participate in the work study program. (T. 455-456) With regard to the absence of evidence, I note that although the DOE asserts that it has been hampered in this matter because of the age of the parents’ claims, the program and fall within the SOL it asserts applies. The parents seek 400 hours of “job coach” services as well as assistance to the parents and student with regard to vocational and aging out issues.
1) Job Coaching
Evidence presented with regard to “job coaching” demonstrated that such services, which I deem to include pre-placement activities as well as on the job assistance and followup, would be beneficial and that this student, with appropriate coaching, could learn skills that could carry over to other employment. (T. 1484) Further, I note that appropriate job coaching would develop the student’s language skills as well as generalization capacity or the development of compensatory strategies and was recommended by Dr. . (T. 1723, Ex. VV-
21) Further, Dr testified that the student would benefit from and should receive vocational help and specifically identified supportive placement and vocational training and travel training, all included in the parents’ proposed program. (T. 2389, 2340) Indeed Ms. , in disputing the parents’ SL requests emphasized that vocational training would provide the skills discussed. (T. 2607-2609, 2015, 2657, 2681)
The DOE asserts that has provided some services in this area and accordingly the requested services are not warranted. However, ’s Supervisor of Special Education, testified as to the limitations of the vocational program provided and that it was substantially insufficient in view of her needs. (T. 1461, 1475, 1481) Moreover, I note that the issue to be considered is whether it is appropriate as compensation in view of past DOE failures.
However, the parents seek without explanation 400 hours. , testified as to her general expectations as to how many hours an appropriate program would require that it would be 150-200 over a year. I conclude that an amount in excess of that is appropriate in view of this student’s need for ongoing support, continued reinforcement of language, and particularly in view of the likelihood that her residential and employment location will change during her period of enhanced eligibility. However, I note that the pre-placement activities will not need to be repeated and generalization of certain skills is expected. (T. 2099, 2114-2116) Accordingly, 300 hours will be ordered.
b) Additional Transition Services
The parents also seek 150 hours for the provision of transitional services for the student and parents in accordance with the recommendations of Dr. . (Ex. II) Dr. asserts that services are necessary in order to, among other things, determine the student’s vocational and other preferences, assist the parents in determining what is appropriate for the student and in navigating the adult service system, to communicate with the various state agencies which might have responsibility when the student enters the adult service system and to identify an appropriate residential placement within proximity to the parents. (T. 1537-1544, Ex. II) With regard to the need for these services, I note that vocational planning and ongoing job support will be provided pursuant to this order by the job coach. Further, social work staff began efforts to make appropriate connections with relevant state agencies almost two years prior to the student’s anticipated aging and it is to be anticipated that those efforts will continue and accelerate as the time draws nearer and that the school will be a resource for the parents. (T. 1176, 2475, 2577-2578, Ex. II-3) I also note that Dr. testified that these matters are considered by the CSE as the time approaches and is the subject of CSE advocacy. (T. 2433, 2435, 2537)
While this student’s , I am not persuaded that the services requested are warranted. Further, the evidence does not show that the DOE was remiss in a substantial manner with regard to services to the parents concerning transition to adult services. In this regard I note that that Dr. did not testify as an expert with regard to DOE responsibilities and, in any event, I find her testimony did not establish any significant DOE failure resulting in direct or indirect detriment to the student with regard to this issue. (T. 2549, 1575) The district is not required to provide an ideal menu of programs to compensate for a denial of a FAPE but rather one that will enable the student to make meaningful gains. c) Individual Tutoring
The parents request individual tutoring three times a week for at least two years. I am persuaded that the student would benefit from one to one tutoring addressing functional academic skills including reading and math and life skills including those relating to employment. I conclude that it would enable her to improve necessary functional academic skills, would support workplace success and would fit into her program and would not meet with resistance.
Dr. opined that no remedial instruction would help this student and that functional academics would provide minimal benefit. (T. 2236, 2337-2239, 2344-2345) However, he never met the student. Those who had, including those who worked with her, testified persuasively that she could benefit from additional instruction. (T. 1203, 1225-1246, 14611464, 1800-1801, Ex. VV-21) Indeed Dr. opined that the student has the capacity to achieve an increase to at least levels and that was lower than what would otherwise be expected because of her other issues. (Ex. 1782) Improvement in functional skills would enhance her employability and capacity for independence. Three hours per week for two years will supplement and reinforce the program she is currently receiving and provide transitional maintenance.
d) therapy
The parents seek twice a week for at least two years. I have provided substantial job coaching and remedial instruction. I conclude that additional is not appropriate in this case. I am persuaded by the testimony of Ms. that the goals and treatment in the recommended therapy principally concern matters that will be addressed in the vocational program. (T. 2607-2609, 2015, 2657, 2681) Moreover, the provision of extensive job coaching is not to compensate for DOE failures with regard to transition alone but as part of an appropriate remedy in view of the student’s current needs and all the past deprivation established including the failure to provide speech services.
5)
The parents seek an array of and trainings for the use of those devices for the student and/or persons who will train the student in their use. (Ex. GG) Compensatory education in the form of should be granted when it is necessary to assist the student in accessing the instructional portion of a compensatory award. Appeal No. 11-127 . I conclude that the devices sought may in some instances be helpful but the parents have not demonstrated that they are necessary here. Further, the use of the equipment would require in some instances extensive training time not only for the student but also for the persons who would train the student, and it is not clear who that would be and how that could be provided. I also note that the evaluato, because of problems of theft and maintenance with regard to certain equipment, recommended that provision be deferred until the student leaves . However, the student’s subsequent placement is unknown at this time and there is no basis now for concluding that the material would be any more secure later. The AT request is denied.
ORDER
1. The student will be provided with extended eligibility for services under the IDEA for two years. Her period of eligibility will conclude on June 30, 2016.
2. The student is entitled to receive 300 hours of individual job coaching from persons chosen by the parents on a schedule to be determined by the parents. The hourly rate for the job coaching provided may not exceed $63 while the student is enrolled in Devereux. (T. 2099) However, if/when the placement at is changed, the hourly rate will be at the reasonable and customary market rate. Her period of eligibility for the receipt of job coaching services will conclude on June 30, 2016.
3. The student is entitled to receive three (3) hours per week of individual tutoring from persons chosen by the parents. The hourly rate for the tutoring provided while the student is enrolled in may not exceed $85. (Ex. MMM) However, if/when the placement at is changed , the hourly rate will be the reasonable and customary market rate. Her period of eligibility for the receipt of these tutoring services will conclude on June 30, 2016.
4. The DOE shall conduct a and provide the evaluator’s report to the parents within 30 days of the issuance of this order. If the report is not received by the parents within that period, the parents are entitled to obtain an independent evaluation at the usual and customary market rate to be paid for the DOE upon the submission of appropriate credentials. In the event that an independent evaluation funded by the DOE is conducted, the parents shall submit the evaluator’s report to the CSE within two weeks of issuance of that report.
5. The CSE shall convene to consider the evaluation within two weeks of the parents’ request that it do so.
6. The DOE shall immediately pay as follows for the independent evaluations conducted pursuant to the interim order in this matter: $4000 ( ); Therapy Source- $700 ( ); LLC2011- $1375 (assistive technology).
7. The student is entitled to transportation to all services and evaluations provided by this order. Original Decision Rendered: January 3, 2013 THIRD CORRECTED: February 14, 2013
(Clarification of Order)
______________________________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer JS
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTS ENTERED INTO THE RECORD
BY THE PARENT
Ex. Description Date # of Pages
A Amended Impartial Hearing Request & emails 11/24/2010 14 regarding submission,
B Impartial Hearing Request 9/23/2010 5
C IEP 9/27/2010 17
D IEP 3/4/2010 17
E IEP 1/28/2009 16
F Interim Service Plan 9/10/2008 2
G IEP 4/16/2008 15
H IEP 5/30/2007 13
I OMITTED
J OMITTED
K Letter to CSE 9/9/2009 1
L Letter to CSE 10/30/2009 1
M Acceptance Letter 9/2/2010 2
N ISP 11/9/2010 29
O Evaluation 12/9/2009 3
P Evaluation 11/9/2009 4
Q FBA & BIP 9/15/2008 & 6
9/29/2008 R Discharge Summary 8/29/2008 5
S Social History Update 4/9/2008 5
T Report 4/8/2008 7
U Evaluation 1/29/2002 4
V Report w. fax to 4/10/2008 13
W Educational Evaluation 1/30/2002 5
X Emails between Multiple, 11
starting
9/28/2010
Y Regulations of the Chancellor, A-17 8/5/2009 3
Z NYC DOE website Chancellor’s Regulations As of 4
11/10/2011
AA NYC DOE website Offices and Programs As of 3
11/10/2011
BB Regulations of the Chancellor, C-175 6/9/2009 4
CC Special Education Service Delivery Report, 4/30/2009, 1
5/15/2009, &
5/20/2009
DD Student Report Card, . 2007-2008 1
EE Student Program Card, . 2007-2008 1
FF District Placement Office Referral Form Undated 1
GG . Evaluation March 9, 2012 28
HH Evaluation Invoice March 15, 2012 1
II Report and Recommendations March 12, 2012 5 JJ Resume Undated 5
KK Letter to CSE RE: Address May 14, 2010 1
LL NYC DOE Transfer, Discharge, and Graduation 2009-2010 6
Code Guidelines
MM OMITTED
NN Regulations of the Chancellor, A-240 September 5, 3
2000
OO Regulations of the Chancellor, A-240 January 20, 3
2011
PP Regulations of the Chancellor, A-210 June 29, 2009 3
QQ Parent’s Timeline and E-Mails February 17, 53
2012
RR Therapy Source Evaluation March 12, 2012 7
SS Therapy Source Invoice March 28, 2012 1
TT Level 1 Vocational Assessment February 22, 3
2012
UU October 2010 to 1
January 2012
VV Report Multiple dates 47
in March 2012
WW OMITTED
XX OMITTED
YY OMITTED
ZZ OMITTED
AAA OMITTED
BBB Invoice April 13, 2012 1
CCC e-mails Multiple dates, 3
Aug. Oct. 2010 DDD NYC DOE 2010-2011 School Year Calendar March 2, 2010 2
EEE NYC DOE SOPM September 2008 149
FFF NYC DOE SOPM February 2009 153
GGG NYC DOE 2009-2010 School Year Calendar March 11, 2009 2
HHH NYC DOE Website: School Improvement Scenarios As of 3 for November 28,
2011
III Regulations of the Chancellor, A-820 June 29, 2009 12
JJJ , Comprehensive Employment Services Program Undated 3
Overview
KKK NYC DOE Home Instructions Schools: Hand Book 2011- 20 for Per Session . Teachers with appendices 2012
LLL District , Office of Transitional Services: What are Undated 2
Transitional Services? Hand-out
MMM letter re additional services May 9, 2012 1
NNN NYC DOE Schools Website As of December 6
7, 2011
OOO NYC DOE School Portal As of December 10
7, 2011
PPP Quest Therapeutic Services, Inc. Letter RE rate May 16, 2012 1
QQQ NYSED Memo RE: Algebra, with attachment September 2007 5
RRR NYS School Report Card: 2007-2008 3
SSS OMITTED
BYTHE DEPARTMENT OF EDUCATION
1 2009-2010 Term 2 Report Card 2009-2010 2
2 2008-2009 Terms 1-4 Report Card 2008-2009 7
3 Attendance History- re 2009-2010 attendance 1 4 2009-2010 Home Instruction Referral 3/15/10 1 5 District Scholastic Achievement-Home Instruction March 2010 1 6 Home Instruct. Progress Rpt. referencing attendance April 2010 2 7 Home Instruct. Progress Rpt. referencing attendance May 201 2 8 Letter from Ms. , 9/14/10 1 9 Letter from Parent requesting Ms. 9/14/10 1 10 Perm. Record-courses/grades- Cptr Printout from 2007-2009 1 11 Form 407-Attendance Record-Home Instruction October 2010 1 12 Attendance Record, Home Instruction October 2010 1 13 Attendance Record- Home Instruc. Oct. 4-8, 2010 October 2010 1
14 DOE’s Student Office Card- District 2/26/10 1
15 Notice of IEP Meeting 1/14/09 2
16 NOT ADMITTED (Illegible Document)
17 Re-evaluation by 5/30/06 6
18 Progress Report 6/5/06 1
19 Student’s Classwork Sample Reading 4/1/06 2 20 Student’s Classwork Sample Math 4/7/06 1
21 Eval. (Grade 3) by 1/29/02 4
22 IEP 6/7/06 12
23 Comprehensive Assessment 10/7/11 24
24 Individualized Service Plan 11/7/11 9
25 Assessment 8/5/11 5
26 CBST Student Referral-Printout 2010 2
27 Residential 12 months Assessment 11/7/11 3
28 Social Services Review 10/10/11 2
29 Screening 10/28/11 12
30 NOT ADMITTED
31 Clinical Summary 9/20-11/20/11 6
32 Individualized Service Plan 11/9/10-5/9/11 10
33 Evaluation-Triennial 6/2/05 4
34 Fax Receipt 12/9/11 1
35 Email from 10/5/11 1
36 Letter from Parent and CSE Attendance record 1/5/10 2
37 Attendance History 2004-2010 2
38-41 NOT ADMITTED
42 Notice of Request to Review IEP 3/14/08 1
43 NOT ADMITTED (Illegible)
44 Appointment Letter 4/9/08 1
45 Contact Sheet Var. dates 2008 2
46 RSAs- SL and Counseling 10/5/10 4
47 Initial Social History Report 1/25/02 6
48 SL Evaluation 3/4/02 4
49 WITHDRAWN
50 Consent for Initial Evaluation 1/25/02 1
51 M2 Meeting Notice for EPC/CSE Review 2/4/02 1
52 C7-Final Notice 6/26/02 1
53 A1- Authorization 9/10/02 1
54 NOT ADMITTED
55 Email- Nachman, ( rec) 10/2010-1/2011 17
56 Dev. Accept Let & email ( ) 9/2/2010 9
57 OMITTED
58 OMITTED
59 Letter from 7/9/10 1
60 NOT ADMITTED
61 WITHDRAWN
62 WITHDRAWN
BY THE IMPARTIAL HEARING OFFICER
I Compliance date extension decisions various II Subpoenas signed/denied by IHO Nachman 12/10/10 7
III Hearing Office Case History as of 12/6/11 12/6/11 4
IV E-mails- re amend compl.filing and subpoenas 6/7-6/8/11 3
V E-mails re objections to Parent subpoenas 7/8-7/11/11 5
VI E-mails re Extend time-DOE filing Mot to Dismiss 8/5/11 2
VII DOE Motion to Dismiss with Exhibits 8/11/11
VIII Parents Opposition to Motion to Dismiss 8/31/11
IX IHO Decision re Motion to Dismiss with transmit let 9/7/11
X E-mails re DOE req. to adj. 9/14 hearing& subpoenas 8/18-9/7/11 3
XI Subpoena signed by HO Schneider 9/15/11 2
XII E-mails re independent evals. & remedies requested 12/12-12/13/11 2
XIII E-mails re DOE doc. submit and indep. eval memo 12/23-12/27/11 4
XIV Parents Motion re Interim Ord-Indep. Evals. 1/5/12 23
XV E-mail to re DOE Opp. to Indep Evals 1/9/12 4
XVI DOE Opp. To Indep. Eval 1/11/12
XVII E-mail re Parents withdrawal certain claims 1/26/12 2
XVIII Interim Order (re Indep Evals.) 2/8/12
XIX Corrected Interim Order (re Indep Evals.) 4/10/12
XX Subpoena 2/9/12 3
XXI E-mails re scheduling, adj., document prod. 2/17-3/22/12 6
XXII E-mails re DOE evidence 7/30-7/31/12 1
XXIII E-mail re scheduling re DOE evidence 9/10/12 1 XXIV Parents Initial Obj. to DOE Proposed Evidence 9/26/12 8
XXV E-mail to DOE re Evidence List 10/17/12 1
XXVI E-mails re req. for exten . to file closing memos 10/3-10/9/12 1
XXVII E-mails re req. for compl date exten . to file closing 10/30-11/12/12 7
memos
XXVIII E-mail- Parents supplemental submission 11/30/12 3
XXIX E-mails re record close date and extension of 12/22/12 3 compliance date
XXX Parents Closing Memo
XXXI DOE Closing Memo
Footnotes
[1] The amended hearing request is recorded as filed on June 2, 2011 and approved by the Hearing Officer on June 8, 2011. (Ex. III)
[2] As and after the evidence concerning the student’s educational program was presented by the DOE, the parties were repeatedly urged to confer to determine whether, in view of that evidence, the issues for
[3] Exhibit references specified in the transcript in some instances do not correspond to the Exhibit list appended. In view of the numerous issues the DOE was given substantial latitude with regard to the submission of evidence. DOE Exhibit reference numbers were changed during the course of the proceedings. T. 2395 The appended list is consistent with the marked documents in the record.
[4] The DOE in its closing memorandum asserted numerous factual claims but provided virtually no transcript pages and limited exhibit numbers which has inhibited consideration of those claims. Further, as discussed herein, I note that the DOE has referenced as exhibits documents not in evidence. (See for example Ex. XXX at 11 where Exs. 38-41 are cited in claimed support for the DOE’s position although admission was denied. (T. 2744 )
[5] The DOE’s claim, first and untimely made in its closing memorandum, that the grandparents have failed to establish guardianship is, I conclude, spurious. I note that it is inconsistent with the DOE’s actions in this matter in which the record shows that it has given the grandparents the sole role in educational decisions involving this student and the grandparents are acknowledged as guardians in numerous DOE created documents. (See for examples H-5, S,U, W) Further, I note that Ex. 23, submitted by the DOE, specifies that an order of custody was issued on September 21, 1999. (Ex. 23-3)
[6] After their receipt of the DOE’s closing memorandum, the parents without permission submitted responsive documents disputing certain district claims and the DOE objected. The district was granted the opportunity to respond by December 11. (Ex. XXXVIII) On December 12, I was informed that no response would be forthcoming.. The DOE’s closing memorandum as well as an exhibit initially proffered but not provided was received by me on December 19th. (Ex.XXIX )
[9] I note that no explanation was given although the DOE had notice of the parents’ objection to admission on that, as well as others, grounds. (T. 2739, 2741-2745, Ex. XXIV)
[10] In view of the foregoing, the mere fact that the student has a long history with the DOE and that notices other than those submitted in this proceeding have been issued is given no weight.