NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 24, 2012
January 16, 2013
Actual Record Closed Date: February 10, 2013
Hearing Officer: Barbara J. Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2012
Attorney — Student
Mother — Student
Spanish Interpreter — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 16, 2013
Attorney — Student
Parents
Spanish Interpreter — Student
Attorney — DOE
Teacher (Via Telephone) — DOE
This is New York City case # . On October 24, 2012 and January, 16, 2013, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education (DOE) Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York , Esq. represented the DOE, , Esq., of , Inc., represented the Mother. interpreted for the Mother who does not speak English. A list of witnesses who testified and documents received into evidence is attached to this decision. The delay between hearing dates was due Hurricane Sandy and due to a medical situation involving one of the attorneys in this matter.
ISSUE
There are two issues in this impartial hearing. The first issue is whether the DOE failed to conduct a timely bilingual evaluation and provide a timely placement for ., and whether these failures constitute a denial of a “free and appropriate public education” (FAPE) that gives rise to the issuance of a P-1 Nickerson Letter. The second issue is whether the admitted failure of the DOE to provide a FAPE to . is a gross violation of the Individuals with Disabilities Education Act (IDEA) resulting in the denial of, or her exclusion from, educational services for a substantial period of time so that it gives rise to a claim for compensatory education. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Mrs.
C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990)
THE PARENT’S POSITION
When first entered the New York City DOE, the Mother alleges that she made a referral to special education on April 5, 2011, but the DOE “Committee on Special Education” (CSE) did not convene for . until February 9, 2012. The CSE recommended a special education class in a District special school, but the DOE never placed her there or implemented the February 9, 2012 Individualized Education Program (IEP). She also alleges a similar disregard for a later IEP. The Mother alleges that . has been without appropriate educational instruction and related services for more than an entire school year.
DEPARTMENT OF EDUCATION POSITION
The Department of Education concedes that it did not provide a “free and appropriate public education” (FAPE) to . from April 5, 2011 to October 24, 2012, which was the first day of this hearing. (Tr. 9-12) This is a period of eighteen months. The DOE does not concede that this is a “gross” violation of the IDEA that gives rise to the Mother’s claim for compensatory education. (Tr. 45) The DOE did not put on a case in chief, but it reserved the right to put on a rebuttal case and it did so. (Tr. 44)
FINDINGS OF FACT
. is a on March 31, 2011. (Tr. 60) At the time, she spoke no English at all. (Tr.
189) In had been diagnosed . (Tr. 65) She was placed in . (Tr. 57-8) Recently, not otherwise specified. (Ex. M) Since coming to New York City, she has been toward her family. (Tr. 55-7)
On April 5, 2011, the Mother enrolled in public school and she made a referral to special education. (Ex. D; Tr. 62-3) The DOE placed , a general education public school. By April 20, 2011, and returned to the public school. (Ex. E)
The IEP team had developed an IEP in Spanish for and the DOE received a timely copy of it. (Tr. 156) A guidance counselor who speaks some Spanish, verbally translated the recommendation section of the IEP to be “special education teacher support services” (SETSS)[1] in the Spanish IEP, but she did not translate the entire document because she is not fluent in Spanish. (Tr. 156-7, 206) Ultimately, the principal translated the entire IEP at some unknown later date. (Id.) Neither the Spanish IEP nor the translated IEP from is not in evidence in this impartial hearing.2
Ms. the DOE’s rebuttal witness, first believed that could not meet ’s needs “the very first day she walked into our school.” (Tr. 189) At the time, Ms ’s belief was based on the fact that . (Id.) But the IEP from had not yet been translated so Ms. was not familiar with ’s special education needs. Ms. admitted that she did not know ’s special education needs at that time. (Tr. 223) She also admitted that she was not aware of ’s IQ until a February 9, 2012 CSE meeting. (Tr. 221)
The Heritage High School is a general education public school that has collaborative co-teaching classes, but it has no self-contained special education classes. The testimony about what educational services provided was inconsistent and confused because Ms. was unsure of dates and she testified that the documentation she had was “confusing.” (Tr. 170-2, 187-8) had “English as a Second Language”
(ESL) two classes per day for forty-five minutes each class.3 (Tr. 163-4) received SETSS in English in a class of twelve students once per day for forty-five minutes. (Tr. 161-3, 206) experienced in this class.
MS. : Were you aware that she experienced in the school?
MS. : Yes.
MS. : How were you aware experienced in the school? MS. : The counselor told me. (Tr. 218)
It appears that attended two collaborative Regents level classes given in English with a general education teacher and a special education teacher in the spring of 2011 and the fall 2011. (Tr. 164-5, 167, corrected by the witness at Tr. 171, Tr. 224) Later, she may have had four co-teaching classes. (Tr. 176) sat in academic classes with a one-to-one bilingual crisis paraprofessional who had been assigned to another student. The other student refused the support of a paraprofessional. (Tr. 185, 208-9)
MS. : Okay. And did participate in any CTT classes?
MS. : Yes. (Tr. 165) But
HEARING OFFICER: . . . classes that you taught, were those collaborative?
MS. : Yes.
HEARING OFFICER; regents-level courses?
MS. : Yes. . . .
: What was her participation like in regents-level course in history and science?
MS. : In mine?
HEARING OFFICER : What were-- what is 's participation in regents-level history and science class in the 2011-2012 school year?
MS. : There was no participation. . . .
HEARING OFFICER : Did she take tests?
ESL is general education instruction rather than special education.
MS. : No.”
(Tr. 224-5) Furthermore evidence that was not capable of participating in these co-teaching classes is in the Social History dated November 9, 2011 that states:
School Performance:
As indicated, attends school only because she knows that this is her responsibility. However, states that she is not learning as all the information in her classes are in English.”
(Ex. G at 3) Lastly, ’s continuing inability to participate in these co-teaching Regents level classes is well documented in the classroom observation conducted by the DOE a full year later on September 13, 2012. (Ex. P)
“ clearly could not follow oral instructions, read the assigned materials, or complete the written assignments in the class. To her credit, advocated for herself by asking the instructor for support. However, it appeared to this writer that she required a less academically challenging, more supportive learning environment with access to instruction in her primary language – Spanish.”
(Ex. P)
I find that attended Regents level co-taught CTT classes at , but she did not participate in them as a matter of fact. finished the 2010 – 2011 school year at .
In the beginning of the 2011 – 2012 school year, was still attending On October 25, 2011, the DOE referred to the using a form for “an interview, audition or placement.” (Ex. F) It is unclear whether this was an interview, audition, or placement. Despite the April 5, 2011 referral to special education, the CSE still had not yet met so this referral to the was for another general education program rather than for a special education program.
On November 9, 2011, the DOE finally conducted a social history interview with ’s Mother. (Ex. G) The Mother reported that:
“ was diagnosed with several times as a result of her . As per parent, receives . . . takes .” (Ex. G at 2)
In reporting ’s at home, the Mother explained that the family is living in a .” (Ex. G at 2 and 3)
The DOE finally conducted the evaluation of . in Spanish on December 21, 2011 and January 26, 2012. (Ex. H) ’s WISC-IV scores are: Verbal Comprehension ,
Perceptual Reasoning Working Memory , Processing Speed , and Full Scale IQ (Ex.
H at 6) All of these cognitive scores are in the extremely . The academic scores are reported in Spanish so I can only rely on the narrative accompanying the scores. (Ex. H at 6) Her reading and math scores are reported to be at the third grade level. (Ex. J at 12)
A Vineland-II Rating Report establishes comparable deficits of all areas of adaptive function. (Ex. I) Taken together, these reports establish that is intellectually impaired.
Despite the April 5, 2011 CSE referral to special education, the DOE did not convene the CSE until February 9, 2012 because it needed to conduct the bilingual evaluation.[4] (Tr. 222)
“MS. : They needed to find a bilingual evaluator, and they are not easy to find, so that's why we serviced her as best we could until that happened . . . “ (Id.)
The IEP from the February 9, 2012 CSE meeting provides a placement in a special class in a District 75 special school with twelve-month services, counseling, and it provides for the alternate assessment. (Ex. J at 7) There was a deferral to the Central Based Support Team (CBST) to find a school site for while she continued attending to the end of the 2011 – 2012 school year.
had another after . (Ex. K at 1) She was hospitalized at (Id.) She also exhibited . (Id.) was and . (Ex. K at 2) A evaluation conducted on May 23, 2012 notes that attends a regular education ninth grade class. (Ex. L at 5) This evaluation does not recognize that the CSE had already convened and that the DOE was supposed to place in a District special school.
had a that year, but this time she was admitted to on July 6, 2012. (Ex. M)
On the day of admission, she threatened to hang herself when she was told that she could not go to the park because it was dark. (E. M at 1) Her : , and . (Ex. M at 3) The new diagnosis in the – NOS; vs . (Ex. M at 5) The report recommends:
“Patient would benefit from placement in a residential boarding school via NYC
Board of Education as she requires a therapeutic learning environment given her developmental/psychiatric needs.” (Ex. M at 5)
At the beginning of the 2012 – 2013 school year, was still attending .
“MS. : “Because I think I misspoke on what we gave her for the fall of
2012. . .”
(Tr. 187)
MS. : So I misspoke. So after we her IEP and it was--and they decided should be in a District school, which--so we could not meet her needs, as a team we decided that she should be given just ESL classes, because that's what we could service her in, and that's where her deficit for us, so she is in ESL . . . She's basically with the same teacher all day and the para. She is offered music as an elected. Other than that, she has nothing but Spanish classes. See, there's no math, no science, so I misspoke. . . . “ (Tr. 188)
, a school , conducted a classroom observation of in a co-teaching history class on September 13, 2013. (Ex. P) At times, “quietly looked around the room, appearing lost.” (Id) She took a quiz with the rest of the class, . During the class’s lively discussion of the geography of Japan, wrote in a notebook. I repeat the observer’s conclusion:
“ clearly could not follow oral instructions, read the assigned materials, or complete the written assignments in the class. To her credit, advocated for herself by asking the instructor for support. However, it appeared to this writer that she required a less – .”
(Ex. P)
In the fall of 2012, the DOE conducted CSE meetings for . (Tr. 192) The first fall 2012 CSE meeting convened on September 20, 2012, and the CSE classified ’s disability as an “ ” (ED).5 (Ex. Q at 1) The September 20, 2012 CSE deferred to the CBST for school selection. (Ex. Q at 9; Tr. 194) Testimony suggests, but does not establish, that the Mother may have rejected an offered District school. There is no “final notice of placement” (FNP) in evidence in this impartial hearing.
Although has both an and an , classification is not an issue in this impartial hearing.
It was alleged that there were three CSE meetings for C. in the fall of 2012, and that there was a second CSE meeting a few months after the first CSE meeting. I believe that Ms. confused the timing of the February 9, 2012 CSE meeting. I find that the CSE convened three times during the 2012 calendar year: February 9, 2012, September 20, 2012, and October 18, 2012. In testifying about the second CSE meeting for , Ms. testified:
MS. : “At that time, we discussed therapeutic day school or residential. At the conclusion of that meeting -
MS. : --it was determined that they would try residential therapy, a private residential therapy school, day school.
MS. : So in the testimony you just gave, you used the words residential and day school, so I'm a little bit confused—
MS. : (Interposing) Both of them were discussed.
MS. : Okay.
MS. : The meeting was about whether we would give her--so we reconvened because she was unhappy with the option of District —
MS. (Interposing) Okay.
MS. : --so we reconvened to on a different option. Both options were residential and therapeutic day.
MS. : Okay.
MS. : The mom, at the end of the meeting, chose therapeutic day, and that was reflected in the new IEP. (Tr. 194-6) It is unclear whether the CSE recommended a residential placement or a day placement because the September 20, 2012 IEP is silent as to the level of .
There was a third 2012 CSE meeting convened on the Thursday before the first day of this impartial hearing, which was October 18, 2012. (Tr. 196) The October 18, 2012 CSE recommended a therapeutic school for , and again deferred to the CBST for school site selection in a non-public school although it is still unclear whether it was to be a day or a residential program. That IEP is not in evidence in this impartial hearing.
The Mother filed an impartial hearing complaint through her attorney on September 6, 2012. (Ex. R) The complaint states that there had been mediation with an agreement to place in a placement by August 31, 2012, and that the DOE did not comply. (Ex. R at 2) There is no mediation agreement in evidence in this impartial hearing, although the request for mediation is in evidence as Exhibit U. The Mother’s complaint requests placement in a residential school through deferral to the CBST or a PI Nickerson Letter, compensatory education, and such other relief as may be deemed appropriate. (Ex. R at 3)
CONCLUSIONS OF LAW
The Mother requested two remedies: placement in a residential school through the CBST or a P-1 Nickerson Letter, and compensatory education in the form of extended IDEA eligibility. PLACEMENT:
An individual evaluation of a referred student must be initiated by a committee on special education and be completed within 60 days of receipt of consent to evaluate. New York Commissioner of Education Regulation Section 200.4(b) In this case, the Mother referred to special education on April 5, 2011.[6] The DOE had sixty days in which to evaluate , convene the CSE, recommend a program for her, and place her in a school. The DOE did not even complete the evaluation until January 26, 2012 and that is nine months from the initial referral. I find that the DOE committed a gross violation of the time line for an evaluation of C. because it delayed her receipt of an appropriate program.
The basic principle of the IDEA is the development and implementation of an Individualized Education Program (IEP) for each eligible student. Subsequent to its development, an IEP must be properly implemented. See Commissioner of Education Regulation Section 200.4(e)(7) Application of a Child with a Disability, Appeal No. 08087, and Application of a Child with a Disability, Appeal No. 09-111 The Second Circuit established that:
“The Department’s practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it. We have held, however, that the term “educational placement” refers “‘only to the general type of educational program in which a child is placed.’” (cites omitted) The Department may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP. (emphasis added)
R.E. v. New York City Dep't of Educ., 694 F.3d 167, 191-192 (2d Cir. N.Y. 2012). In this case, the CSE developed two IEP’s for and it made two deferrals to the CBST for selection of a school site, but the DOE never placed or implemented the programs offered in the IEP’s.
When the CSE recommendation is for an approved in-state or out-of-state private school, the DOE has an additional thirty days in which to place the student.
IEP Implementation. (1) Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approved in-state or out-of- state private school, the board shall arrange for such programs and services within 30 school days of the board's receipt of the recommendation of the committee.
New York Commissioner of Education Regulation Section 200.4(e) In the case before me, the February 9, 2012 IEP recommended a special class in a District 75 special school and the September 20, 2012 IEP recommended a special class in a private school, but the DOE has never implemented either of these IEP placements. I find that the DOE’s failure to implement the placement recommended in these two IEP’s are gross violations of the IDEA because it delayed ’s receipt of an appropriate program for a period of over a year.
Failure to conduct a timely bilingual evaluation and failure to implement a timely placement are also violations of the consent decree in Jose P. Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982) aff'd Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982) The certified class in Jose P. encompassed “all handicapped children between the ages of five and twenty-one living in New York City . . . who have not been evaluated within thirty days or placed within sixty days of [notification to the Department].” Because is a non-English speaking student who was not timely evaluated and not timely placed, the Jose P. stipulation applies to her. See R.E., 785 F. Supp. 2d at 43-44. The remedy for violation of the Jose P. consent decree is a “Nickerson Letter”:
“A ‘Nickerson letter’ is a letter from the New York Department of Education authorizing a parent to place a student in a New York State approved non-public school at no cost to the parent . . . The remedy of a "Nickerson letter" is intended to address the situation in which a student has not been evaluated or placed in a timely manner.”
Application of a Student with a Disability, SRO Appeal No. 10-011 I find that is a member of Jose P. class. Not only did the DOE violate the IDEA, but it also violated the consent decree in Jose P. I find that the Mother is entitled to a P-1 Nickerson Letter.
COMPENSATORY EDUCATION
Compensatory education is an equitable remedy that may be awarded to students who are no longer IDEA eligible when 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. Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) Compensatory education in the form of “additional services” may be awarded when, as in the instant matter, the student is still IDEA eligible, but the same standard of gross violation resulting in the denial of, or exclusion from, educational services applies. See Application of the Board of Education, Appeal No. 02-061
An impartial hearing officer has discretion in fashioning an award of compensatory education. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Application of a Child with a Disability, Appeal No. 02-019 Although "[t]here is no obligation (under IDEA) to provide a day-for-day compensation for time missed," most courts routinely do so, in the absence of evidence that such relief would be inappropriate or overcompensatory. (Id.) See Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860, 871-72 (D.N.H. 1992); Miener v. State of Missouri, 558 IDELR 123 (8th Cir. 1986).
In this case, the DOE conceeds that it denied C. a FAPE, but it contends that the violations were not “gross.” This impartial hearing raises the issue as to what violations of the IDEA constitute “gross” violations that may lead to compensatory education. In this case, I find that the DOE committed the following violations of the IDEA:
Failure to provide a timely bilingual evaluation for over six months,
Failure to convene a timely CSE meeting for a similar period of time,
Failure to implement the placement in two IEP’s developed for on February 9, 2012 and September 20, 2012, and
Violation of the consent decree in Jose P. I find that each of these violations is a gross violation of the IDEA in that each violation standing on its own delayed a FAPE for for a substantial period of time. Cumulatively, these violations have denied a FAPE for over a full year.
The DOE contends that it provided . with certain special education and related services so that these violations did not result in the denial of, or exclusion from, educational services for a substantial period of time. The DOE’s rebuttal case described the educational services did receive during the period of time in question. The DOE provided with ESL classes, but ESL classes are general education rather than special education classes. The DOE provided with some collaborative co-taught classes, SETSS, and some On the surface, it appears that the provision of these are educational services would preclude an award of compensatory education because there was no denial of, or exclusion from, educational services for a substantial period of time. But could not access the instruction offered in these special education classes and services or benefit from them. She attended the co-taught classes, but she was not capable of participating in them and the SETSS supported her attendance in those classes. was not regularly scheduled.
The IDEA mandates that school districts provide an eligible student with a disability a FAPE tailored to meet the unique needs of the student and that is reasonably calculated to enable a student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982). See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) School districts must deliver these special education services according to an IEP. The individualized education program (“IEP”) is one of the “cornerstones of special education.” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir.2006). The IEP is only considered adequate when it is likely to produce progress, not regression, and provides the student with an opportunity greater than mere trivial advancement. T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009).
In the case before me, the special education services that were provided to were not based upon any IEP. The IEP’s that were developed for her specified a different program. The DOE may not unilaterally create a program of special education services outside the CSE process by piecing together services that are readily available in the student’s current public school. To find otherwise, would mean that school districts could develop IEP’s but then provide the student with a completely different program.
In addition, the special education services did receive were not reasonably calculated to enable her to receive educational benefits. It is not reasonable to expect a child who has to benefit from instruction in Regents level co-taught classes taught in English. The SETSS she received supported her instruction in these classes.
I find that the DOE committed gross violations of the IDEA that resulted in a denial of, and exclusion from, educational services for a substantial period of time. is entitled to compensatory education.
CONCLUSION
The Department of Education denied . a “free and appropriate public education” for over a full school year continuing to the date of this final decision.[7]
The DOE failed to provide . with a timely evaluation, timely CSE meeting, and placement in violation of the consent decree in Jose P. I find that the Mother is entitled to a P-1 Nickerson Letter to place in an approved residential school immediately.
The DOE committed gross violations of the IDEA that resulted in the denial of and exclusion from educational services that for a substantial period of time.
ORDER
I order the Department of Education to issue an immediate P-1 Nickerson Letter for residential placement in an approved special education school, in-state or out-of-state, for the rest of the 2012 – 2013 school year and the entire 2013 – 2014 school year, including the summer of 2013.
I order the DOE to provide with one year of compensatory education until the end of the school year in which she Dated: February 14, 2013
__________________________
BARBARA J. EBENSTEIN, ESQ.
Impartial Hearing Officer
BE;mv
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 Omitted B Omitted C Omitted D New York City DOE Intake and Authorization, dated 4/5/11, 2 pages E New York City DOE 75M169 Discharge Letter, 3/8/11, 2 pages F New York City DOE Enrollment Referral Form, 10/25/11, 1 page G New York City DOE Social History, dated 11/9/11, 3 pages H DOE Evaluation, dated 1/26/12, 7 pages I Vineland II Adaptive Function Scale, 1/26/12, 8 pages J DOE IEP, 2/9/12, 15 pages K Discharge dated 4/20/12, 5 pages L Premier Healthcare Evaluation, dated 5/25/12, 8 pages M and Psychosocial Evaluation, dated 7/12/12, 5 pages N Letter, dated 21 5/11/12, 1 page O Letter from Ms. , dated 6/14/12, 1 page P Observation, dated 9/13/12, 1 page Q DOE IEP, 9/20/12, 12 pages R Hearing Request, dated 9/6/12, 3 pages S Subpoenas Signed 10/12/12, 2 pages T Withdrawn U Request for Mediation Undated, 2 pages V Omitted W Class Program 2012-2013, 1 page
Footnotes
[1] As the term ‘SETSS’ is unique to the New York City DOE, I do not find this testimony that the IEP recommended “SETSS” to be credible. I cannot discern what level of service the IEP provided based upon the record before me. I note that there are free and low cost instant computer translation services available online.
[4] The witness confused dates, and later acknowledged that the first CSE meeting for was February 9, 2012. (Tr. 210)
[6] There is no documentation of whether the DOE provided the Mother with a consent form or when it was received.
[7] The DOE had sixty days to evaluate so the violation began then. Counsel reports that is still attending .