Broward | Case 15-2799 | 2015-09-30

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BROWARD COUNTY SCHOOL BOARD, Petitioner, vs. **, Respondent. _______________________________/ Case No. 15-2799E FINAL ORDER A final hearing was held in this case before Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on July 8 and August 5, 2015, in Fort Lauderdale, Florida. APPEARANCES For Petitioner: Barbara J. Myrick, Esquire Office of the School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Amanda L. Routman, Esquire Jennifer Robinson, Esquire Legal Aid Service of Broward County, Inc. 491 North State Road 7 Plantation, Florida 33317 STATEMENT OF THE ISSUE Whether the proposed change of the subject child's ("the Child") placement to a separate day school represents the least

2 restrictive environment ("LRE") within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. PRELIMINARY STATEMENT On May 19, 2015, Petitioner Broward County School Board, pursuant to section 1003.5715, Florida Statutes, filed a request for a due process hearing that sought approval to place the Child in an exceptional student education center ("special day school").1/ Petitioner's hearing request was necessitated by the Child's parents' ("hereinafter Respondent") refusal to provide consent to the proposed placement as recommended in the Child's IEP dated May 13, 2015. On May 21, 2015, the undersigned issued a Notice of Hearing scheduling the final hearing for June 11, 2015. On June 9, 2015, Respondent filed a motion to continue. Said motion was granted and the final hearing was rescheduled for July 8, 2015. On July 2, 2015, the parties filed an Amended Joint Statement of Undisputed Facts. To the extent relevant, those facts have been incorporated in this Final Order. The final hearing proceeded as scheduled; however, the hearing was not concluded. On July 17, 2015, the undersigned issued a Notice of Hearing setting the final day for the final hearing for August 5, 2015. The final hearing concluded on said date.

3 At the conclusion of the final hearing, the parties and the undersigned agreed to set the deadline for the filing of proposed final orders to September 4, 2015, and the undersigned's Final Order to October 5, 2015. The final hearing Transcript was filed on August 17, 2015, and a Notice of Filing Transcript was issued on August 18, 2015. The identity of the witnesses and exhibits and the rulings regarding each are as set forth in the Transcript. On September 1, 2015, Petitioner filed a motion for extension of time to file proposed final orders. On September 2, 2015, the undersigned issued an Order Granting Extension of Time for Proposed Final Orders and a Specific Extension of Time for Final Order. The parties timely filed Proposed Final Orders, which were considered in preparing this Final Order. Unless otherwise indicated, all rule and statutory references are to the version in effect at the time the subject IEP was drafted. For stylistic convenience, the undersigned will use male pronouns in the Final Order when referring to the Child. The male pronouns are neither intended, nor should be interpreted, as a reference to the Child's actual gender.

4 FINDINGS OF FACT Stipulated Facts: 1. The Child was born on May 29, 2007. 2. The Child has been diagnosed with Phelan-McDermid Syndrome ("PMS"), a genetic syndrome caused by the disruption of the SHANK3/ProSAP2 gene on the terminal end of chromosome 22. 3. In January 2012, the Child began attending a Broward County Public School, as a transfer student, while he was in pre- kindergarten. He was determined eligible for exceptional student education ("ESE") services in January 2012 in the areas of Developmentally Delayed and Language Impaired. He also received physical therapy and occupational therapy as related services. 4. In 2012, he attended the Achievement and Rehabilitation Center ("ARC") Broward, a private agency under contract with Petitioner to provide educational services to pre-kindergarten students with disabilities. 5. On May 9, 2012, the Child was determined to be eligible for ESE services in the areas of Intellectual Disability ("InD") and Language Impaired. He was further determined to continue needing physical therapy and occupational therapy as related services. 6. In the fall of 2012, he began attending another public elementary school in the Broward County School District

5 ("School A") in a "cluster program" for students with InD. The Child was placed in a separate classroom due to his need for personal assistance or supervision in all activities of daily living, self-care, and self-management. Additionally, he received specialized instruction and/or curriculum for a majority of learning activities. 7. During the 2014-2015 school year, the Child attended School A and was in second grade. Evidence Presented at Hearing 8. Prior to the subject IEP, during the 2014-2015 school year at School A, the Child received all of his special education services (academics, behavior, independent functioning, communication, and direct language therapy), and the related service of occupational therapy in an "ESE Class." Although not specifically delineated as such in the IEP, it is undisputed that the Child participated in an InD cluster program, a separate/special class2/ for InD students. 9. At School A, the Child's InD class consists of between seven to nine students and two adults--Ms. McCrea, the ESE teacher, and an educational support professional. The hours of the InD class are from 8:00 a.m. to 2:00 p.m. Based on the evidentiary presentation, a typical day begins with morning group time, wherein the students, all of whom are InD, participate in songs, work on learning the alphabet, utilize visuals, and

6 attempt the use of voice output devices (where applicable). At the conclusion of group time, the students consume a snack, work on art projects, and may play on the "Smart Board." 10. Following snack time, Ms. McCrea works with the children, including the Child, on a one-to-one basis. Ms. McCrea utilizes a cardboard trifold to separate the individual student from the balance of the class to avoid distractions. During the one-to-one time, Ms. McCrea attempted to primarily focus on the Child's IEP goals. Specifically, Ms. McCrea focused on the Child's academics, a non-preferred activity of the Child. 11. In the special class placement, the Child's availability for interaction with non-disabled peers in the non- academic setting is limited. Ms. McCrea and Katie Davy, an ESE specialist at School A, credibly testified that the Child has the potential opportunity for contact with non-disabled peers in the following circumstances: 1) when he first arrives to school; 2) when transitioning locations; 3) during lunch; 4) at dismissal; and 5) during "play pals."3/ 12. In practice, however, the Child's interaction with non- disabled peers in the non-academic environment is rare. School A has developed a program wherein non-disabled students may assist exceptional students in getting settled to their class upon arrival. The Child's father, however, escorts the Child when arriving.

7 13. The students in the InD cluster program do not have recess with non-disabled students. Although the Child is able to access the school campus and playground without any physical limitations, he requires constant supervision as he tries to wander from the group. Moreover, the Child has difficulty transitioning within the school environment, and requires constant supervision to maintain his safety and the safety of others. 14. During lunch time, the Child has a difficult time sitting down and getting settled without multiple adults addressing him using various prompts (verbal, visual, gestural, tactile, physical). Occasionally, the Child will point to another student and verbalize. The Child's availability to have contact with non-disabled peers at dismissal is also curtailed. The Child's father frequently checks the Child out from school early in an effort to prepare the Child for therapy sessions that occur away from school. 15. As noted above, the Child has been diagnosed with PMS. From the limited evidence presented on the syndrome, the undersigned finds that PMS is an autism-related syndrome, associated with intellectual disabilities, sleep disorders, and seizures. Most children with PMS have moderate to severe delays and often do not develop functional language.4/

8 16. Consistent with the PMS diagnosis, the Child has significant communication deficiencies. On January 8, 2015, an informal assessment was conducted by a speech-language pathologist concerning the Child's expressive and receptive language abilities. The results of said assessment are set forth, in pertinent part, as follows: He/She showed initial distraction by different items in the room and required multiple prompts to sit down at the table. Once seated, [the Child] would make eye contact with the SLP when his/her name was called several times, though he/she would not maintain eye contact as he/she continued to scan the room for objects of interest. Receptively, [the Child] was able to identify objects (in a field of 2) in 2 out of 20 attempts. He/She labeled two items, baby and dog, verbally. With verbal and gestural prompts, [the Child] would follow the direction to "sit down," when he/she got out of his/her chair, in 3 out of 10 instances. More complex directions such as "give me the ball" or "touch your head," etc. were not followed. Expressively, [the Child] uses very few words. He/She was able to say the words "baby," "dog," "ball," and "momma" during the assessment. He/she often uses "ball" when attempting to inquire about other objects or people. He/she would look and [sic] the SLP then look at an object and say "the ball." An attempt to use a voice output device only resulted in [the Child] hitting the buttons repeatedly and seemingly without intention of using to communicate. [The Child's] voice, from the few words and sounds he/she does vocalize, appears to be within normal limits for his/her age. [The Child's] Fluency and Articulation could not be assessed due to limited verbalization and [sic] complete Oral Mechanism Exam could not be completed due to [the Child's] decreased

9 ability to follow directions and due to behavioral issues. Pragmatically, [the Child] will make eye contact and vocalization when attempting to inquire or [sic] a wanted object. Near the end of the session, [the Child] would repeatedly try to get a basketball, that he/she saw in the room, and throw it against the door. When the ball was taken away from him/her and he/she was told that it was time to go, [the Child] lay down on the floor, kicking and yelling "momma" repeatedly. An Aide had to come in to the office to get him/she to go into the classroom. 17. The Child's IEP dated February 17, 2015, documents that, "[b]ased on the impact of his intellectual disability and language impairment, [the Child] may have difficulty using functional communication with peers and adult [sic] and following simple directions." The IEP documents his present level of academic achievement and functional performance in the domain of communication as follows: Due to [the Child's] excessive absences, an inadequate amount of data has been collected to report on progress or his/her current level of performance. He/She has been seen one time for Speech Therapy [sic] was 5% accurate in his responses. His/Her goals will be based upon his/her previous PLP, which is as follows: Based on speech- language pathologist interaction, [the Child] struggles to maintain joint attention when asked to follow through on a directive. Often, [the Child] will manipulate the situation by acting out (i.e. moving out of his/her seat, going to a corner, laughing while trying to move away from an adult), and therefore requires adult assistance often to comply with the direction. During lunch time, he/she has a hard time sitting down and

10 getting settled without multiple adults addressing him using various prompts (i.e. verbal, visual, gestural, tactile, physical). He/She will sit in his/her seat and eat his/her food independently, and once in a while, will point to another student and verbalize. His/Her speech is unintelligible and augmentative devices as well as picture symbols are used to help him/her during this time. Emphasis will be put on his/her ability to point and hopefully repeat or follow through on a directive more consistently to show understanding of what is being asked of him/her.[5/] 18. Petitioner's witnesses uniformly and credibly testified that, based in whole or in part on the Child's lack of communication skills, the Child consistently demonstrated inappropriate and often aggressive behaviors. Ms. McCrea credibly testified that the Child was aggressive a "good deal" of the time, and his aggressive behavior appeared to escalate if he was given a non-preferred activity such as sitting in a chair, or attempting to perform an academic activity. The Child hit most of the students in the class and would throw any object that was within reach, which in turn may also have hit the fellow students. 19. The Child's inappropriate behaviors would frighten the other students and would preclude them from learning. At times, when the Child was throwing, hitting, and kicking, the staff would be required to remove the other students, some of whom are medically fragile. Other times, the Child was required to be

11 removed for his safety and the safety of others. It is undisputed that the Child's aggressive behaviors were not intentionally malicious. 20. Sherry Bees, the principal at School A, was frequently called to the classroom to assist in the Child's removal or attempted re-engagement back to the classroom. She credibly estimated that the Child was probably removed from the classroom on a daily basis. 21. The Child's IEP, under the heading of "Domain: Social/Emotional Behavior," documents the Child's present level of academic achievement and functional performance as follows: Due to [the Child's] excessive absences, coming in late and leaving early, progress and data collection has been limited. However, when he/she has been in attendance, based on teacher observations, [the Child] is often physically aggressive hitting the other students in the class as well as the teachers, and throwing things. [The Child] will take his/her shoes and socks off and throw them. He/She requires constant adult supervision to maintain his/her safety and the safety of others. He/She needs multiple verbal as well as physical prompts to follow directions. [The Child] has demonstrated limited response to positive reinforcements. [The Child] will at times calm down if taken on a walk but needs 1 or more adults to assist him/her.[6/] 22. Over the course of the 2014-2015 school year, Petitioner attempted to ameliorate the Child's behavioral issues that are perceived to stem from the Child's PMS and resulting

12 communication deficits. These attempts include, but are not limited to, the following: 1) sensory interventions; 2) the creation of a Functional Behavioral Assessment and Behavioral Intervention Plan; 3) a speech and language assessment; 4) a psychological evaluation; 5) assistance from one of the School District's board-certified assistant behavioral analysts to conduct observations of the Child; and 6) employing a behavioral specialist to work one-to-one with the Child for several weeks. 23. Notwithstanding these efforts, the Child did not demonstrate any progress on his IEP goals throughout the 2014- 2015 school year. The Child's IEP annual goals included the following: Curriculum and Instruction: By November 15, 2015, given fewer than 3 verbal, visual, and/or gestural prompts, [the Child] will attend to a teacher-directed activity for 2 minutes, in 4 out of 5 opportunities. Social/Emotional Behavior: By November 15, 2015, given fewer than 3 verbal, visual, and/or gestural prompts and reinforcers [the Child] will refrain from aggressively touching his/her peers for 15 minutes in 4 out of 5 opportunities. Independent Functioning: By November 15, 2015, given fewer than 3 verbal, visual, and/or gestural prompts, [the Child] will walk in line with his/her peers, 4 out of 5 opportunities. By November 2015, given gestural and verbal prompts [the Child] will carry his/her tray from the lunch line to the table in 4 out of 5 opportunities.

13 Communication: Given a structured setting, and picture cards/objects paired with verbal and gestural prompts, [the Child] will point to the correct picture in 4 out of 5 opportunities by November 2015. 24. Petitioner's Complaint maintains that the Child has made limited educational progress due to his behavioral issues, as well as inconsistent attendance, and School A is unable to meet the Child's unique needs. 25. On May 13, 2015, an IEP team meeting was conducted. At the meeting, the IEP team recommended that the Child's placement should be changed from the special class to a special day school. A special day school is a school which is administratively separate from regular schools and is organized to serve one or more types of exceptional students.7/ The Child's parents did not consent to this proposed change in placement. 26. Specifically, Petitioner proposes a change of the Child's placement to a special day school in the Broward County School District ("School B"). School B is a school entirely composed of exceptional students. According to Lori Naslund, a School B ESE specialist, all of the students either have an eligibility of InD or autism spectrum disorder ("ASD"). Each classroom typically consists of an ESE teacher, a behavioral technician, and two classroom assistants. The average class has seven students.

14 27. Approximately 45 percent of the School B students are medically fragile (e.g., seizure disorders, G-tube feeding, respiratory distress, wheelchair bound, those requiring nursing assistance) and three full-time nurses are on staff. School B also possesses behavioral support staff to assist the needs of its student body, including two full-time behavioral specialists, and behavioral technicians throughout the school to assist, when needed. Bright Horizons also employs four speech and language pathologists to ensure that every class receives approximately 45 minutes to 60 minutes of speech language every day. 28. Petitioner's witnesses articulated several reasons why the IEP team (excluding the Child's parents) recommends the Bright Horizons placement. First, Bright Horizons would allow for increased support in the classroom to provide greater individual attention and to work on the Child's interventions. Second, due to the behavioral staff, there is an ability to work with the Child's behavioral concerns on a more consistent basis. Third, full-time speech language pathologists are available to work with the Child on a daily basis. 29. In opposition to the proposed placement, Respondent avers that Petitioner failed to explore different placement options. Petitioner offers different types of special classes, one of which being for those with ASD ("ASD cluster"). The ASD cluster includes an autism coach as an additional service

15 provider. The autism coach's duties include assisting the teacher in social skills groups, working towards the goals contained on the student's IEP, collaborating with parents, and obtaining and maintaining data. Despite PMS being an "autism- related disorder," Petitioner did not evaluate the Child to determine if he is autistic and/or to determine if he would be eligible for ASD prior to the proposed change in placement. CONCLUSIONS OF LAW 30. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 1003.57(1)(b) and 1003.5715(5), Florida Statutes, and Florida Administrative Code Rule 6A-6.03311(9)(u). 31. Petitioner bears the burden of proof with respect to each of the claims raised in the Complaint. Schaffer v. Weast, 546 U.S. 49, 62 (2005). 32. In enacting the IDEA, Congress sought to "ensure that all children with disabilities have available to them a free appropriate public education that emphasized 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); Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th. Cir. 2012). The statute was intended to address the inadequate educational

16 services offered to children with disabilities and to combat the exclusion of such children from the public school system. 20 U.S.C. § 1400(c)(2)(A)-(B). To accomplish these objectives, the federal government provides funding to participating state and local educational agencies, which is contingent on the agency's compliance with the IDEA's procedural and substantive requirements. Doe v. Alabama State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990). 33. Parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205-06 (1982). Among other protections, parents are entitled to examine their child's records and participate in meetings concerning their child's education; receive written notice prior to any proposed change in the educational placement of their child; and file an administrative due process complaint "with respect to any matter relating to the identification, evaluation, or educational placement of [their] child, or the provision of a free appropriate public education to such child." 20 U.S.C. §§ 1415(b)(1), (b)(3), & (b)(6). 34. Local school systems must also satisfy the IDEA's substantive requirements by providing all eligible students with

17 a free appropriate public education ("FAPE"), which is defined as: Special education services that--(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [20 U.S.C. § 1414(d)]. 20 U.S.C. § 1401(9). 35. "Special education," as that term is used in the IDEA, is defined as: [S]pecially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including-- (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings . . . . 20 U.S.C. § 1401(29). 36. The components of FAPE are recorded in an IEP, which, among other things, identifies the child's "present levels of academic achievement and functional performance," establishes measurable annual goals, addresses the services and accommodations to be provided to the child and whether the child will attend mainstream classes, and specifies the measurement tools and periodic reports that will be used to evaluate the child's progress. 20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R.

18 § 300.320. "Not less frequently than annually," the IEP team must review and, as appropriate, revise the IEP. 20 U.S.C. § 1414(d)(4)(A)(i). 37. In addition to requiring that school districts provide students with FAPE, the IDEA further gives directives on students' placements or education environment in the school system. Specifically, 20 U.S.C. § 1412(a)(5)(A), provides as follows: Least restrictive environment. (A) In general. To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 38. Pursuant to the IDEA's implementing regulations, states must have in effect policies and procedures to ensure that public agencies in the state meet the LRE requirements. 34 C.F.R. § 300.114(a). Additionally, each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. 34 C.F.R. § 300.115. In turn, the Florida Department of Education has enacted rules to comply with the

19 above-referenced mandates concerning LRE and providing a continuum of alternative placements. See Fla. Admin. Code R. 6A- 6.03028(3)(i) and 6A-6.0311(1).8/ 39. In determining the educational placement of a child with a disability, each public agency must ensure that the placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child; the meaning of the evaluation data; and the placement options. 34 C.F.R. § 300.116(a)(1). Additionally, the child's placement must be determined at least annually, based on the Child's IEP, and as close as possible to the child's home. 34 C.F.R. § 300.116(b). 40. With the LRE directive, "Congress created a statutory preference for educating handicapped children with nonhandicapped children." Greer v. Rome City School Dist., 950 F.2d 688, 695 (11th Cir. 1991). "By creating a statutory preference for mainstreaming, Congress also created a tension between two provisions of the Act, School districts must both seek to mainstream handicapped children and, at the same time, must tailor each child's educational placement and program to his special needs." Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989). 41. In Daniel, the Fifth Circuit set forth a two-part test for determining compliance with the mainstreaming requirement:

20 First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. See §1412(5)(B). If it cannot and the school intends to provide special education or to remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate. Daniel, 874 F.2d at 1048. 42. In Greer, infra, the Eleventh Circuit adopted the Daniel two-part inquiry. In determining the first step, whether a school district can satisfactorily educate a student in the regular classroom, several factors are to be considered: 1) a comparison of the educational benefits the student would receive in a regular classroom, supplemented by aids and services, with the benefits he will receive in a self-contained special education environment; 2) what effect the presence of the student in a regular classroom would have on the education of other students in that classroom; and 3) the cost of the supplemental aids and services that will be necessary to achieve a satisfactory education for the student in a regular classroom. Greer, 950 F.2d at 697. 43. Here, it is undisputed that the Child cannot be satisfactorily educated in the regular classroom, with the use of supplemental aids and services. Respondent does not seek and has not previously sought for the Child to be so educated. Rather,

21 Respondent argues in its Proposed Final Order that the child can receive an educational benefit with appropriate supplementary aids and services in a different special class setting (an autism cluster) on the campus of a regular school.9/ 44. Accordingly, the instant proceeding turns on the second part of the test: whether the Child has been mainstreamed to the maximum extent appropriate. In determining this issue, the Daniel court provided the following general guidance: The [IDEA] and its regulations do not contemplate an all-or-nothing educational system in which handicapped children attend either regular or special education. Rather, the Act and its regulations require schools to offer a continuum of services. Thus, the school must take intermediate steps where appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. The appropriate mix will vary from child to child and, it may be hoped, from school year to school year as the child develops. If the school officials have provided the maximum appropriate exposure to non-handicapped students, they have fulfilled their obligation under the [IDEA]. Daniel, 874 F.2d at 1050 (internal citations omitted). 45. During the 2014-2015 school year, the Child received all of his academics in the special education setting, a special class. The Child's recess was also provided apart from the regular education environment. The Child's placement provided

22 the opportunity for exposure to non-disabled peers during lunch, transitioning, play-pals, and when arriving and departing from the campus. As discussed above in the Findings of Fact, however, due to the nature and severity of the Child's disability, he did not, or could not, meaningfully avail himself of the opportunities to interact or model with non-disabled peers. 46. The majority of the Child's IEP team opines that FAPE cannot be provided to the Child absent a special day school setting. The undersigned is mindful that great deference should be paid to the educators who developed the IEP. A.K. v. Gwinnett Cnty. Sch. Dist., 556 Fed. Appx. 790, 792 (11th Cir. 2014)("In determining whether the IEP is substantively adequate, we 'pay great deference to the educators who develop the IEP.'")(quoting Todd D. v. Andrews, 933 F.2d 1576, 1581 (11th Cir. 1991)). As noted in Daniel, "[the undersigned's] task is not to second-guess state and local policy decisions; rather, it is the narrow one of determining whether state and local officials have complied with the Act." Daniel, 874 F.2d at 1048. 47. The May 13, 2015, IEP proposes a change of the Child's placement to the next point (in terms of escalating restrictiveness) on the continuum of possible placements. While it is undisputed that the proposed placement offers less potential for interaction with non-disabled peers, in practice, from the evidence presented, it is anticipated that the same will

23 be a distinction without a difference. The undersigned concludes that Respondent's proposed placement of the Child in a special day school mainstreams the Child to the maximum extent appropriate. Accordingly, the proposed placement is approved. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Petitioner's proposed change of the Child's placement from a separate/special class to an exceptional student education center/special day school is approved. DONE AND ORDERED this 30th day of September, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2015. ENDNOTES 1/ "Exceptional student education center" or "special day school" means a separate public school to which nondisabled peers do not have access. § 1003.57(1)(a)1.a., Fla. Stat. 2/ Pursuant to section 1003.57, Florida Statutes, a "separate class" means a class in which a student spends less than

24 40 percent of the school week with nondisabled peers. A "special class" is defined as "the provision of instruction to exceptional students who receive the major portion of their educational program in special classes located in a regular school." Fla. Admin. Code R. 6A-6.0311(1)(c). 3/ On a weekly basis, non-disabled students come to the special class and interact with the InD students. 4/ The undersigned notes (but does not make any findings of fact) the following description of PMS, as found on the PMS Foundation website: PMS is typically caused by deletion, or loss, of the terminal segment of the long arm of chromosome 22. The loss may result from a simple deletion, an unbalanced translocation, or ring chromosome, or other structural change. In the majority of cases, the SHANK3 gene is lost as a result of the deletion; other cases have been described with mutations within the SHANK3 gene. The SHANK3 gene, which codes for the SHANK3 protein, is found in the brain, heart, kidney, and other organs. Its most important role is in the brain. It supports the structure of excitatory synapses and is involved in processes crucial for learning and memory. It also has an important, if not fully understood, role in proper brain development. Defects of the SHANK3 gene are highly associated with autism. Individuals with PMS often have autism or autism spectrum disorders. There is a wide range of severity of symptoms observed in people with PMS. Like other autism-related syndromes, PMS is associated with intellectual disabilities, sleep disorders, and seizures. Most children with PMS have moderate to severe delays and often do not develop functional language. Infants with medium to large chromosomal deletions may have very low muscle tone, poor motor control, and problems with eating and sleeping. Other symptoms may include poor

25 thermoregulation and dysplastic finger nails or toenails. Behavioral issues may stem from autism (e.g., repetitive behaviors), from poor communication skills, or from an unknown origin. 5/ The language contained in the Child's IEP remained essentially identical in the IEPs dated February 17, 2015; April 2, 2015; and the subject IEP dated May 14, 2015. 6/ The verbiage noted in this passage is essentially identical in the subsequent IEPs dated April 2, 2015, and the subject IEP, dated May 13, 2015. 7/ See Fla. Admin. Code R. 6A-6.0311(1)(d). 8/ In Florida, a school district may not place a student in an exceptional student education center ("special day school"), without parental consent. Where, as here, the parent does not consent, the school district may not proceed with such placement unless the school district obtains "approval" through a due process hearing. See § 1003.5715, Fla. Stat. Section 1003.5715 does not abrogate any parental right identified in the IDEA and its implementing regulations. § 1003.5715(7), Fla. Stat. 9/ Respondent dedicates much of his Proposed Final Order endeavoring to convince the undersigned of procedural or substantive inadequacies of the Child's IEP (as well as former IEPs). Inasmuch as Respondent has not filed a due process hearing complaint raising these claims, see section 1003.5715(7), Florida Statutes, (noting that said section does not abrogate any parental right identified in the IDEA and its implementing regulations), such claims are not properly before the undersigned for adjudication. COPIES FURNISHED: Liz Conn, Dispute Resolution Program Director Bureau of Exceptional Education and Student Services Department of Education 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400 (eServed)

26 Barbara Joanne Myrick, Esquire Office of the School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Amanda Leigh Routman, Esquire Legal Aid Service of Broward County, Inc. 491 North State Road 7 Plantation, Florida 33317 (eServed) Jennifer Robinson, Esquire Legal Aid Service of Broward County, Inc. 491 North State Road 7 Plantation, Florida 33317 (eServed) Matthew Mears, General Counsel Department of Education 325 West Gaines Street, Suite 614 Tallahassee, Florida 32399-0400 (eServed) Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Floor 10 Fort Lauderdale, Florida 33301-3125 (eServed) NOTICE OF RIGHT TO JUDICIAL REVIEW This decision is final unless, within 90 days after the date of this decision, an adversely affected party: a) brings a civil action in the appropriate state circuit court pursuant to section 1003.57(1)(c), Florida Statutes (2014), and Florida Administrative Code Rule 6A- 6.03311(9)(w); or b) brings a civil action in the appropriate district court of the United States pursuant to 20 U.S.C. § 1415(i)(2), 34 C.F.R. § 300.516, and Florida Administrative Code Rule 6A-6.03311(9)(w).