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E.M. v. Lewisville Independent School District

United States District Court, E.D. Texas, Sherman Division

March 27, 2018




         Pending before the Court are Defendant Lewisville Independent School District's (“LISD”) Motion for Judgment on the Administrative Record (Dkt. #36) and Plaintiff's Motion for Judgment on the Record (Dkt. #37). Having considered the motions and the administrative record, the Court finds that LISD's motion should be granted and Plaintiff's motion should be denied.


         Plaintiff E.M. is a student with autism, a speech impairment, orthopedic impairment, and an intellectual disability who is also diagnosed with childhood apraxia of speech and dysarthria. At the time the due process complaint was filed, E.M. was a nine-year-old student in third grade at Independent Elementary School in LISD. However, by the administrative due process hearing below, E.M., was a ten-year-old student receiving private speech therapy and had withdrawn from LISD. At all relevant times E.M. lived with her family in Lewisville, Texas, and LISD was the resident school district for E.M., which was responsible for providing her with a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”).

         I. 2010-2011 School Year

         E.M. first enrolled in LISD as a kindergartner, during the 2010-2011 school year. On April 13, 2011, LISD conducted its first Full and Individual Evaluation (“FIE”) for E.M. (AR 2742- 2761). This FIE (“2011 FIE”) identified that E.M. was a student eligible for special education and related services under the IDEA. The 2011 FIE determined that E.M.'s primary mode of communication was “sign approximations, gestures, single-sound diaphragmatically-supported vocalizations, and eye pointing” and that E.M. “did not demonstrate the use of variable-sound articulation to communicate.” (AR 2748). LISD also tested E.M.'s proficiency with an augmentative communication device, which demonstrated E.M. was able to use the device, but was more comfortable using an iPod touch (AR 2748). The 2011 FIE recommended a total communication approach[1] and recommended physical therapy, occupational therapy, speech therapy, small group instruction, social skills training, and a highly structured instructional program for E.M. (AR 2750-2751).

         II. 2012-2013 School Year

          During E.M.'s 2nd Grade Year, E.M.'s Admission, Review, and Dismissal Committee (“ARD Committee”) convened for its annual ARD meeting (“November 2012 ARD Committee Meeting”). E.M.'s parents were present at the meeting. The ARD Committee used the 2011 FIE during the 2012 ARD Committee Meeting. The ARD Committee also reviewed assessments, such as Classroom Assessment Scoring System (“CLASS”) and Verbal Behavior Milestones Assessment and Placement Program (“VB-MAPP”), classroom based assignments, current goals and objectives, parent information, referral data, and teacher observations of student performance.

         The ARD Committee determined that E.M. demonstrated the need for occupational therapy, physical therapy, sign language support, transportation, assistive technology, adapted physical education, parent training, transportation during extended school year services, and speech services. The ARD Committee additionally found that assistive technology was necessary for E.M. for a variety of areas, including: communication; visual; writing; physical; self-care; referring to accommodations; reading; math; and environmental. The ARD Committee decided that “[E.M.] needs a small group ratio of 1:1 to 1:3 ratio for acquisition of new language skills.” (AR 2775). The ARD Committee created a variety of goals and objectives and designed a school schedule for E.M., which included 200 minutes of sign language support daily, thirty minutes of direct speech therapy four times a week, and another forty minutes of consult speech therapy a week. These goals and services were all contained in E.M.'s Individualized Education Program (“IEP”) the November 2012 ARD Committee Meeting created (“2012 IEP”).

         After a consensus was reached on the 2012 IEP, LISD added additional reading assessments pursuant to one of E.M.'s private providers Gayle Wayman's request; however, LISD determined that it was difficult to administer a reading assessment because of E.M.'s lack of communication. E.M.'s parents called another ARD Committee meeting to discuss E.M.'s reading goals. The ARD Committee convened on May 23, 2013 (“May 2013 ARD Committee Meeting”). During the May 2013 ARD Committee Meeting, the ARD Committee and E.M.'s parents developed a new reading comprehension goal to be implemented along with the 2012 IEP. Additionally, based on concerns raised by E.M.'s mother, the ARD Committee “increase[d] speech services to 480 minutes and a 20 minute consult for the 6 weeks duration of [extended school year services].” (AR 2838). E.M.'s parents provided a copy of E.M.'s progress summary on her 2012 IEP speech goals, which showed little to no progress on all of her 2012 IEP speech goals.

         III. 2013-2014 School Year

          On September 26, 2013, E.M.'s ARD Committee convened for the purpose of the development of the reevaluation of E.M.'s IEP (AR 2859) (“September 2013 ARD Committee Meeting”). E.M.'s ARD Committee requested a new FIE to be completed by November 15, 2013, to include an assessment in speech and language, information from a physician, occupational therapy, physical therapy, adaptive physical education, autism, a functional behavior assessment (“FBA”), cognitive, adaptive behavior, achievement data, assistive technology, functional sign language, CLASS testing, BRIDGE testing, and VB-MAPP updates.

         E.M.'s new FIE (“2013 FIE”) was completed on November 12, 2013. The 2013 FIE was developed “through a review of records, parent and teacher questionnaires, a parent interview with [E.M.'s] mother, [C.S.], a teacher interview with Ms. Laura Pedersen, and a developmental history form also completed by [E.M.'s] mother.” (AR 658). Relevant to the parties' disputes here, the 2013 FIE demonstrated that E.M. was a non-oral communicator, who largely was not understood by listeners (AR 662). Despite articulation therapy since March 2011 with a concentration on development of imitative sounds, E.M.'s articulation sounds remained undeveloped, such that she was unable to participate in a standardized articulation test (AR 664). After an informal test, E.M.'s current intelligibility of vocalizations or word approximations was determined to be poor and vocalizations were only understood with support of non-linguistic context (AR 664, 678). At the time, E.M. did not even attempt word approximation unless prompted (AR 678). Moreover, her potential for intelligible speech was determined to be limited (AR 664).

         According to the 2013 FIE, E.M. used “gestures, sign language, and Word Wizard on an iPhone to communicate with various speaking partners. She initially used approximated signs or gestures to communicate, generally producing one to two word phrases.” (AR 678). E.M. was able to produce signs for various words and use modified sign language. While communicating with staff, instructors, and general peers (with prompts), E.M. used signs and assistive technology (AR 681). E.M. “demonstrated success when utilizing a high technology device.” (AR 681). In fact, despite her fine motor skills being impacted by her cerebral palsy, E.M. was able to type six words per minute using a computer (AR 667). E.M. also demonstrated extremely low cognitive skills (AR 670-671). However, E.M. was able to follow “100% of verbal directives across all observations from a variety of staff members without sign language interpretation needed. Out of the total directives, E.M. followed 97% of the directives given by various staff members within 3 seconds.” (AR 662).

         After LISD completed the 2013 FIE, E.M.'s ARD Committee convened for its first meeting of the annual ARD Committee Meeting to discuss E.M.'s 2013 IEP on November 21, 2013 (“November 2013 Meeting of E.M.'s ARD Committee”). Prior to the November 2013 Meeting of E.M.'s ARD Committee, Laura Pederson, E.M.'s classroom teacher, met with E.M.'s mother to review progress on the 2012 IEP goals. Each evaluator discussed their position of the FIE. Specifically, Brooke Wallace, the campus interventionist, discussed E.M.'s use of interpreter support and stated that if E.M. “does not know the sign she needs to use, she will use her iTouch to type two words and will sometimes type two word phrases.” (AR 2937). The AI teacher observed E.M. use signs, primarily single signs, but also determined that E.M.'s preferred mode of communication was her iPhone (AR 2937). Heather Brandon, the speech language pathologist, determined that E.M. was nonverbal and had an outside diagnosis of Childhood Apraxia Disorder (AR 2938). Further, Laura Reed, the speech language pathologist who also assisted with assistive technology, explained that E.M. used technology successfully and would frequently use her iPhone to respond (AR 2938). The ARD Committee ended the November 2013 Meeting of E.M.'s ARD Committee and agreed to meet again in December.

         On December 17, 2013, the ARD Committee reconvened to continue the annual ARD meeting (“December 2013 Meeting of E.M.'s ARD Committee”). E.M.'s ARD Committee determined that extended school year services were necessary for E.M. and developed a Behavior Improvement Plan (“BIP”), which was agreed to by all parties involved (AR 2939). The ARD Committee informed E.M.'s parents that it recommended a discontinuation of a sign language interpreter because E.M. had not increased her use of signs over the past year and she relied heavily on assistive technology to communicate when people did not understand her signs or sign approximations (AR 2939-2940). Moreover, the ARD Committee noted that E.M. was not hearing impaired and, thus, could be successful in the general education setting without her sign langue interpreter (AR 2940). As to voice approximations, the ARD Committee also reviewed the private speech and language evaluation from Dr. Vincent J. Carbone, a Board Certified Behavioral Analyst (AR 2940).[2] Additionally, E.M.'s mother had the opportunity to question E.M.'s speech teacher and classroom teacher about how often they encouraged E.M. to use vocalizations (AR 2940). E.M.'s mother also requested that the speech therapist who works with E.M. should be trained in apraxia, and the ARD Committee agreed (AR 2940). The ARD Committee discussed the proposed IEP goals and made corrections when necessary in addressing questions by E.M.'s mother (AR 2940). Everyone agreed to implement the new academic IEP goals, which meant that the speech therapist would continue to work on goals agreed to in the November 2013 Meeting of E.M.'s ARD Committee, the classroom teacher would work on integrated speech goals, but the speech language pathologist would not (AR 2940). The ARD Committee agreed to continue the annual meeting until January 2014.

         On January 15, 2014, the ARD Committee reconvened to continue the annual ARD meeting (“January 2014 Meeting of E.M.'s ARD Committee”). At the January 2014 Meeting of E.M.'s ARD Committee, E.M.'s mother expressed concern regarding assistive communication goals and Wallace, the behavior interventionist, explained how E.M. would be able to communicate using assistive technology (AR 2941). The board certified behavior analyst did not agree that this was the best way to promote language skills (AR 2941). However, the ARD Committee emphasized that it should focus on E.M.'s primary mode of communication, which it concluded was assistive technology (AR 2941). The ARD Committee continued to discuss functional modes of communication: Pederson expressed concerns regarding the verbal behavior curriculum; Wallace expressed concern about implementing an icon/picture based form of communication; and E.M.'s mother questioned the credentials of the ARD Committee members, but Susan Standish, the Director of Special Education, assured her that the ARD Committee members are trained professionals (AR 2941). The ARD Committee agreed to add the ability for E.M. to use any mode of communication to respond to language art goals (AR 2942). Brandon explained that direct articulation goals were not recommended because of E.M.'s lack of progress in articulation and that instead LISD is only recommending integrated speech goals. (AR 2942). E.M.'s father pointed out that there were discrepancies between progress in the extended school year reports and the instructional year, but then Brandon explained that E.M.'s progress was limited and was prompt dependent (AR 2942). The ARD Committee continued the meeting until February.

         On February 3, 2014, the ARD Committee reconvened for the annual ARD meeting (“February 2014 Meeting of E.M.'s ARD Committee”). The focus of the meeting was E.M.'s speech goals (AR 2943-2944). E.M.'s mother had presented proposed speech goals at the January 2014 Meeting of E.M.'s ARD Committee, which the LISD speech advisory group reviewed (AR 2943). LISD did not recommend accepting the proposed goals, and explained its reasoning. The ARD Committee discussed that E.M. showed limited progress on articulation goals, mainly required prompting, and E.M. used an augmentative device; accordingly, LISD wanted to continue to develop E.M.'s skills on this device (AR 2943). However, the ARD Committee emphasized that the current goals still supported a total communication approach in the classroom. E.M.'s mother questioned the way LISD collected data (AR 2943). The ARD Committee explained the methods by which LISD takes and collects data, but was not able to provide the data to E.M.'s mother when she asked (AR 2943). Standish explained that the 2013 FIE supported discontinuing direct speech therapy and, instead addressing vocalizations in the classroom. Pederson explained how she addresses vocalizations in response to a question from E.M.'s mother (AR 2944). LISD supported its recommendation to discontinue its articulation goals with the American Speech Language Hearing Association's (“ASHA”) guideline to discontinue articulation when benefit is not being made (AR 2944). The ARD Committee decided to continue the meeting to another time.

         On March 21, 2014, the ARD Committee reconvened to continue the ARD annual meeting (“March 2014 Meeting of E.M.'s ARD Committee”). E.M.'s mother began to question goals that had been previously agreed to be implemented in the December 2013 Meeting of E.M.'s ARD Committee and then stated concern about data collection and manding[3] based on Dr. Carbone's reports (AR 2945). The ARD Committee reviewed Dr. Carbone's newest information, but determined that it contradicted his previous report (AR 2945).[4] Allison Oeffner, E.M.'s general education teacher discussed E.M.'s interactions in the classroom and E.M.'s mother requested a new goal of spontaneous interaction with peers (AR 2945). Based on this request, LISD agreed to collect data and determine whether such goal is necessary (AR 2945). Wallace again explained how data was collected in this case (AR 2945). LISD also agreed to collect more data regarding E.M.'s mands and to adjust the goal if the data reflects it is necessary. E.M.'s mother additionally requested that a Present Levels of Academic and Functional Performance (“PLAAFP”) statement be added to LISD's PLAAFP, to which LISD agreed (AR 2945). E.M.'s mother objected that “Speech Therapy goal #1” did not provide for a 1:1 ratio, but the speech therapist identified that the Autism Supplement suggested a 1:1 to a 1:3 ratio and that a small group setting or direct speech therapy would be successful (AR 2946). E.M.'s father shared information regarding articulation goals for students with apraxia from ASHA. The ARD Committee added an additional accommodation to encourage E.M. to use vocalizations/approximations (AR 2946). E.M.'s parents requested an Independent Educational Evaluation (“IEE”) because they disagreed with the 2013 FIE (AR 2947).[5] The ARD Committee agreed to continue the meeting for ten days.

         On April 4, 2014, the ARD Committee reconvened to continue the ARD annual committee meeting (“April 2014 Meeting of E.M.'s ARD Committee”) (collectively with other committee meetings, “2013-2014 Annual ARD Committee Meeting”). E.M.'s parents suggested changes to accommodations, occupational therapy goals, BIP goals, and the autism supplement, and the ARD Committee agreed to the changes (AR 2948-2949). The 2013-2014 Annual ARD Committee Meeting ended in a non-consensus (AR 2949).

         On April 14, 2014, Plaintiff filed a special education due process hearing request (the “first due process hearing”) with the Texas Education Agency pursuant to the IDEA. The first due process hearing was held before a Special Education Hearing Officer (“SEHO”) in March 2015. On May 22, 2015, the SEHO issued a decision finding that the LISD provided Plaintiff with a free appropriate public education as required by the IDEA. On August 20, 2015, Plaintiff filed a complaint with the Court appealing the SEHO's decision (Dkt. #1).

         While the first due process hearing was pending, Plaintiff filed a second special education due process hearing request (the “second due process hearing”) on March 26, 2015. On August 21, 2015, the SEHO dismissed the second due process hearing, holding that the first due process hearing barred the second due process hearing by collateral estoppel, res judicata, and preclusion. On December 10, 2015, Plaintiff filed an Amended Original Complaint with the Court appealing the dismissal of the second due process hearing (Dkt. #2). Plaintiff filed a Second Amended Original Complaint on May 13, 2016 (Dkt. #14). LISD filed a Motion to Dismiss Part of Plaintiff's Second Amended Original Complaint on May 27, 2016 (Dkt. #15) asking the Court to dismiss claims regarding the second due process complaint because Plaintiff failed to properly exhaust her remedies. The Court granted the motion on January 9, 2017, and dismissed Plaintiff's appeal of the second due process hearing for lack of subject matter jurisdiction (Dkt. #24).

         On May 12, 2017, LISD filed a Motion for Judgment on the Administrative Record (Dkt. #36). On June 12, 2017, Plaintiff filed a response (Dkt. #41). On June 30, 2017, LISD filed a reply (Dkt. #43). On July 14, 2017, Plaintiffs filed a sur-reply (Dkt. #47). On May 12, 2017, Plaintiffs filed a Motion for Judgment on the Record (Dkt. #37). On June 9, 2017, LISD filed a response (Dkt. #38). On July 6, 2017, Plaintiffs filed a reply (Dkt. #45). On July 14, 2017, LISD filed a sur-reply (Dkt. #46).


         This case arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. The IDEA's purpose is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A).

         States receiving federal assistance under the IDEA must: (1) provide a “free appropriate public education” (“FAPE”) to each disabled child within its boundaries, and (2) ensure that such education is in the “least restrictive environment” (“LRE”) possible. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997); 20 U.S.C. § 1412(a)(1), (5). The FAPE provided must be developed to each disabled child's needs through an “individual education program” (“IEP”). Michael F., 118 F.3d at 247; see 20 U.S.C. § 1414(d). In Texas, the committee responsible for preparing an IEP is known as an Admissions, Review, and Dismissal committee. Michael F., 118 F.3d at 247.

         “When a parent challenges the appropriateness of an IEP, a reviewing court's inquiry is two-fold.” Hous. Indep. Sch. Dist. v. V.P., 582 F.3d 576, 583 (5th Cir. 2009). “The court must first ask whether the state has complied with the procedural requirements of the IDEA, and then determine whether the IEP developed through such procedures was ‘reasonably calculated to enable the child to receive educational benefits.'” Id. at 583-84 (citation omitted). “If the court finds that the state has not provided an appropriate educational placement, the court may require the school district to reimburse the child's parents for the costs of sending the child to an appropriate private school or institution.” Id. at 584 (citations omitted). “Reimbursement may be ordered only if it is shown ‘that (1) an IEP calling for placement in a public school was inappropriate under the IDEA, and (2) the private school placement . . . was proper under the Act.'” Id. (citation omitted).

         The role of the judiciary under the IDEA is limited, leaving the choice of educational policies and methods in the hands of state and local school officials. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003) (citing Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996)). “Under the IDEA, a federal district court's review of a state hearing officer's decision is ‘virtually de novo.'” Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003). “The district court must receive the state administrative record and must receive additional evidence at the request of either party.” Id. The court must reach an independent decision based on a preponderance of the evidence. Hous. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000); Michael F., 118 F.3d at 252. However, this requirement “is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982). Instead, “due weight” is to be given to the hearing officer's decision. Id. Thus,

courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to the state and local educational agencies in cooperation with the parents or guardians of the child.

Id. at 207.

         The party seeking relief under the IDEA bears the burden of proof. Schaffer v. Weast, 546 U.S. 49, 62 (2005). Specifically, “a party attacking the appropriateness of an IEP established by a local educational agency bears the burden of showing why the IEP and the resulting placement were inappropriate under the IDEA.” Michael F., 118 F.3d at 252.


         Plaintiff argues that the Court should disregard the SEHO's findings and credibility determinations. Further, Plaintiff asserts LISD did not provide E.M. a FAPE under the IDEA and committed both procedural and substantive violations. Plaintiff additionally claims that based on these violations, Plaintiff is entitled to reimbursement and attorneys' fees. LISD counters that it provided E.M. with a FAPE pursuant to the IDEA and, thus, reimbursement and attorneys' fees are inappropriate.

         I. SEHO Hearing and Findings

         The first due process hearing was held before the SEHO in March 2015.[6] On May 22, 2015, the SEHO issued a decision finding that the LISD provided Plaintiff a FAPE as required by the IDEA.

         Plaintiff argues that the SEHO's findings of fact[7] do not warrant any deference because the SEHO erroneously gave weight to LISD witnesses whose testimony was not supported by extrinsic, non-testimonial evidence. Plaintiff asserts that the SEHO applied different standards to the witnesses and found Plaintiff's witnesses less credible simply because the SEHO agreed with LISD's position. (Dkt. #37 at pp. 17-18) (citing K.S. v. Fremont Unified Sch. Dist., 545 F.Supp.2d 995, 1003-04 (N.D. Cal. 2008)). Plaintiff further asserts that the SEHO ignored testimony of E.M.'s private speech providers and her private Board Certified Behavior Analyst. LISD maintains that the Court should not disturb the SEHO's findings or credibility determinations.

         Under the IDEA, “[t]he district court must receive the state administrative record and must receive additional evidence at the request of either party.” Id. The Court must reach an independent decision based on a preponderance of the evidence. However, “due weight” is to be given to the hearing officer's decision. Rowley, 458 U.S. at 206 (1982). While the Court is to give “due weight, ” such is not necessary “when its own review of the evidence indicates that the [SEHO] erroneously assessed the facts or erroneously applied the law to the facts.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993).

         Plaintiff has cited no supporting authority for her contention that witnesses need to have extrinsic, non-testimonial evidence to support their contentions. To the contrary, LISD presented case law, albeit outside the Fifth Circuit, to suggest that the SEHO's credibility determinations should not be disturbed unless there is “non-testimonial, extrinsic evidence in the record that would justify a contrary conclusion.” (Dkt. #38 at p. 2) (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995); McCalister v. Dist. of Columbia, 45 F.Supp.3d 72, 76-77 (D.D.C. 2014)). Moreover, the Court has previously found that the SEHO has the “opportunity to observe witnesses and make credibility determinations.” Shafi v. Lewisville Indep. Sch. Dist., No. 4:15-cv-599, 2016 WL 7242768, at *9 (E.D. Tex. Dec. 15, 2016). While the Court is not making a decision on what the correct standard is in the Fifth Circuit, it is not convinced that each witness's testimony must be supported by extrinsic, non-testimonial evidence. As such, this does not serve as a basis to discredit any witness or the SEHO's decisions.

         Further, the case Plaintiff relied on to argue the applied different standards to different witnesses, presented clear findings from the SEHO that demonstrated the SEHO found the plaintiff's witnesses less credible because their testimony contradicted that of witnesses from the district. K.S., 545 F.Supp.2d at 1004 (detailing the SEHO's findings to be that the plaintiff's testimony was flawed because “they ‘contradicted the testimony [that plaintiff made significant progress] of the people who created the records, '” and explaining that relying on witnesses who made the records just because they made the record would eliminate the need for due process hearings).[8] Further, the K.S. court determined that the credibility determinations were “based primarily on non-testimonial substantive issues.” Id.

         Here, a majority of the SEHO's credibility determinations were based on testimony as opposed to non-testimonial issues. (AR 10-12) (“An SLP for the district testified credibly that the student may develop a core vocabulary of ten to fifteen words but that such acquisition of vocabulary could take as much as fifteen years.”; “This conclusion [, the IEE's conclusion that sign language was E.M.'s primary mode of communication, ] was not credible because the district established with credible testimony that sign language was not the student's primary mode of communication.”; “District personnel testified credibly that that the drafted goals were appropriate for the student.”; “The credible testimony of experts for the district supports the district's proposed plans for the student.”) (emphasis added). Moreover, there is no indication in the record that the SEHO made its credibility determinations simply because a witness agreed or did not agree with LISD's decision. Accordingly, the Court does not find a reason to disregard the SEHO's credibility determinations.

         Finally, Plaintiff claims that the SEHO ignored testimony from Plaintiff's witnesses but offers no citation to the place in the record that suggests the SEHO ignored testimony. Even though the Court is not obligated to scour the record, it made an independent review of the SEHO's findings of fact and did not find any indication that the SEHO ignored any testimony or ...

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