Broward | Case 17-0705 | 2017-08-03

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS **, Petitioner, vs. Case No. 17-0705E BROWARD COUNTY SCHOOL BOARD, Respondent. _______________________________/ FINAL ORDER A due process hearing was held in this case before Jessica E. Varn, an Administrative Law Judge of the Division of Administrative Hearings (DOAH) in Ft. Lauderdale, Florida, on March 30 and 31 and May 12, 2017. APPEARANCES For Petitioner: Petitioner, pro se (Address of Record) For Respondent: Susan Jane Hofstetter, Esquire School Board of Broward County K. C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE Whether the Individual Education Plan (IEP) developed in January of 2017 was designed to meet the student’s reading needs.

2 PRELIMINARY STATEMENT On February 1, 2017, Petitioner filed a request for a due process hearing, challenging the design of the student’s IEP developed in January of 2017. On February 14, 2017, a pre- hearing telephone conference was held, wherein the undersigned advised the parties regarding the procedure for the due process hearing and coordinated the date of the due process hearing. A Notice of Hearing was issued on that same date, setting the hearing for March 30 and 31, 2017. The hearing commenced on those dates but was not concluded. By agreement of the parties, the third and final day of the due process hearing was held on May 12, 2017. During the hearing, Petitioner presented the testimony of XXXXX XXXXX, the student’s Exceptional Student Education (ESE) teacher for the last XXXX school years; the student; XXXX XXXXXXXXX; XXXX XXXXXX, the Principal of School A; the student’s father; and XXXX XXXXXX, ESE Specialist for School A. Petitioner’s Exhibits 1 through 22 and A through R were admitted into evidence. The School Board presented the testimony of XXXX XXXX XXXXXXX, Curriculum and Program Specialist; XXXXX XXXXXXX, Due Process Coordinator; XXX. XXXXXXX; XXX. XXXXX; XXXXX XXXXX, school psychologist; and XXXXX XXXXXXXX, Program Specialist. School Board Exhibits 1 through 4, 10, 13 (pp. 486-487),

3 23 through 27, 29 through 33, and 39 through 40 were admitted into evidence. Official recognition was taken of 20 U.S.C. § 6368(3) and (6); and Florida Administrative Code Rule 6A-6.053. At the conclusion of the hearing, the parties agreed to file proposed final orders 21 days after the transcript was filed. The final order was due no later than July 24, 2017. The Transcript was filed on June 12, 2017. On July 3, 2017, the parties timely filed proposed final orders. In Petitioner’s proposed final order, several appendices were filed, attempting to present new evidence into the record. These appendices are sua sponte stricken from the record, and were not considered in the preparation of this Final Order.1/ During Petitioner’s rebuttal at the due process hearing, Petitioner called into question the credibility of XXX. XXXXX, the ESE classroom teacher who had taught the student for the last XXXX years and had testified twice at the hearing. Based on Petitioner’s belief that XXX had successfully impeached XXX. XXXXX’s testimony in its entirety, during rebuttal, Petitioner requested compensatory education for XXXX years, which is the time the student attended School A and was taught by XXX. XXXXX in a XXXXXXXXXXXXXXX classroom. As this was a new request for compensatory education, and was formulated only after Petitioner had the opportunity to review all of Petitioner’s educational records, which were made available to XXX during the

4 course of this due process hearing, the undersigned re-opened the record in this case by Order dated July 19, 2017. The parties were permitted to introduce any evidence, either with live testimony and/or written arguments, as to the issue of a potential remedy in this case; that is, the issue of compensatory education and the length of time it could span. The School Board elected to file written argument on the remedy issue, and requested 21 days in order to do so. Petitioner objected; over this objection, the undersigned permitted both parties to file written pleadings no later than July 31, 2017. Petitioner filed a written argument as to the appropriate remedy on July 17 and July 31, 2017. The School Board filed its written argument on July 31, 2017. The parties’ proposed final orders and written submissions on the limited issue of a potential remedy in this case were considered in preparation of the Final Order. The deadline for the Final Order was extended to August 7, 2017. Unless otherwise noted, citations to the United States Code, Florida Statutes, Florida Administrative Code, and Code of Federal Regulations are to the current codifications. For stylistic convenience, the undersigned will use XXXX pronouns in this Final Order when referring to Petitioner. The XXXX pronouns are neither intended, nor should be interpreted, as a reference to Petitioner's actual gender.

5 FINDINGS OF FACT 1. The student in this case is a XXX-year-old who is eligible for exceptional student education due to XXX XXXXXX XXXXXXXX XXXXXXXX (XXX), XXXXXXXX XXXXXXXXXX (XX), and XXXXXX XXXXXXXXX (XXX). XXX also receives XXXXXXXXXXXXXXXXX as a related service. 2. Due to the severity of XXXX XXXXXX, XXX is a complex learner who requires intensive instruction and several accommodations to learn. XXX is well XXXX grade level in all XXXXXX areas, struggles to XXXXXXXXX XXXXXXXX and often exhibits XXXXXXXXXXXXX, otherwise known as XXXXXXX, behaviors. The student is instructed using an XXXXXXXXXXXX curriculum. 3. For the past XXXX years, XXX has attended the same XXXXXX school, and XXX placement has been in a XXXXXXXXXXXXXXXX classroom with only XXXXX other XXXX students. XXX is with non- disabled peers for XXXXXXXXXXX, grade level XXXXXXXXX such as XXXXXXXXXXX, and XXXXX. XXX has had the same teacher, XXX. XXXXX, for all XXXXX years of XXXXX school; XXX repeated XXXXX grade this last school year. 4. In XXX classroom, there were XXXXXXXXXXXXXXXXXXXXXX students, some with XXXXX and XXXXXXXXXX needs, and some XXXXXXX XXXXXXXX students. 5. According to all who have taught XXX or assessed XXX, XXX is eager to learn, XXX likes school, XXX is a hard worker,

6 and XXX is teachable. The undersigned notes that during the student’s testimony at the hearing, XXX repeatedly requested to be XXXXXXXXXXXXXXX, indicating an eagerness to be there. 6. Petitioner’s father credibly testified that the student XXXX progress in XXX reading skills while in XXXXXXXXXX school. But since entering XXXXXX school, where XXX has only received instruction from XXX. XXXX for XXX years, XXX has made XXXXXXXXXX XXXX progress in the different components of reading. The student remains at an XXXXXXXXXXX school level for reading, XXXXXXXXXXXX XXXXXXXXXXXXX reading levels as when XXX entered XXXXXX school, despite XXX eagerness to learn and XXX work ethic. 7. Petitioner’s expert witness also provided credible evidence that the student’s reading skills ranged from XXXXX to XXXXX grade in different reading areas; notably, XXX was at a XXXXXX grade or XXXXXXXXXXX in the area of comprehension. Even the School Board characterizes XXX reading progress as “XXXXXXXXX.”2/ 8. XXX. XXXXX explained that because XXXX was the student’s ESE teacher, XXX was responsible for developing the student’s IEP. XXX. XXXXX was tasked with identifying the student’s strengths and weaknesses, XXX selected the reading goals, XXX identified the type of reading instruction the student needed, XXX worked on helping the student reach IEP goals, XXX administered the reading assessments, and XXX tracked the

7 student’s reading progress on XXX IEP goals with XXXXX progress reports. 9. During the first two days of hearing, XXX. XXXXX testified that XXX had made a mistake, or typo, in drafting one of the reading goals on the January 2017 IEP. XXX explanation was that XXX had placed the student at a XXXXX grade level (XXXXX grade) in terms of XXX reading level, when in actuality, XXX was reading at a XXXXX grade level (XXXXX grade). XXX further explained that the goal was therefore also a mistake, or typo, because it was set for XXXXX grade levels higher (XXXXX grade), rather than drafting the goal to meet fifth grade standards, which was more appropriate given the student’s pace in learning reading skills.3/ 10. XXX. XXXXX testified a second time on the final day of the hearing, which was held over a month after the first two days of the due process hearing. On XXX second attempt to explain the apparent discrepancies in the reading goal on the IEP, XXX. XXXXX testified that XXX had, upon further review, not made any mistake as to the student’s grade level for reading. During the month between hearing dates, XXX had suddenly remembered that XXX had assessed the student’s grade level with several assessments, and that looking at all of the assessments as a whole, the student was actually reading at a XXXXX grade level; therefore, the IEP

8 goal which was aimed at achieving a XXXXX grade level was indeed appropriate, and not a mistake or typo.4/ 11. During her second day of testifying, XXX also provided a great amount of detail in explaining the XXXXXX IEP data sheets XXX utilized to track the student’s progress on XXX various IEP goals. XXX enthusiastically noted that XXX either took the data while XXX was working with the student, or would complete the sheet during lunch period, or at the end of a school day. At the latest, XXX would be sure to complete the sheets by the following day. An “I” indicated that the student had completed a task independently, and “V” signified that the student had needed verbal prompting to complete the task. The (+) and (-) symbols were used to denote whether the task was completed or not.5/ 12. Upon review of the school calendars for the last XXXX years, which mark holidays, as well as weekdays when school was closed, coupled with credible information provided by Petitioner as to dates when the student was on vacation or school was cancelled due to a hurricane warning, it is evident that XXX. XXXXX’s data sheets are inaccurate. Among the data sheets that were entered into evidence, a minimum of XXX entries were completely false.6/ 13. These false entries date back to the fall of 2013, and include weekend days, days when the school was closed due to teacher planning days, days when the student was on vacation, and

9 days when the school was unexpectedly closed for a hurricane warning. These IEP data sheets, cast in the most favorable light, could be characterized as careless mistakes; or, cast in the least favorable light, the false data sheets could be seen as a deliberate attempt to mislead the parents of a XXXXXX disabled student, who is incapable of XXXXXXXXX XXXX XXXXXX with ease. Without passing judgment on XXX. XXXXX’s intent, the evidence clearly showed that the IEP data sheets contain false information. 14. XXX. XXXXX’s testimony, in its entirety, was disjointed, inconsistent and not credible. As would be expected, the remainder of the School Board’s witnesses based their professional opinions and their actions or inaction on what XXX. XXXXX, the student’s teacher, reported to them. Sadly, because the other professionals relied on XXX. XXXXX’s veracity, no action was ever taken to address the student’s XXXXXXXX XXXXXXXX in reading. 15. XXX. XXXXXXX, the ESE Specialist for School A, oversees the ESE services provided at School A. XXX deferred entirely to XXX. XXXXX on how the IEP reading goals were drafted, which programs were utilized to coordinate the student’s curriculum, and on how the student was progressing on XXX IEP reading goals. XXX. XXXXX never indicated that the student was making XXXXXXXXXXXXXXXXXXXX; therefore, XXX. XXXXXXX never became aware

10 that XXX. XXXXX needed more support or that there was ever a need for a change to the IEP reading goals. 16. XXX. XXXXXXX, a Curriculum and Instruction Specialist for the ESE department for the School Board of Broward County, testified regarding the scope of reading programs available for ESE students. XXX deferred to XXX. XXXXX, as the student’s classroom ESE teacher, on which programs were selected to meet the student’s reading needs, and relied on XXX. XXXXX to indicate that the student was XXXXXXXXXXXXXXXXXXXXXX reading progress in order to intervene on behalf of the student. XXX. XXXXX never informed XXX. XXXXXXX that the student was XXXXXXXXXXXXXXXXX in XXX reading skills; therefore, XXX. XXXXXXX never reviewed the effectiveness of the student’s reading curriculum. 17. Similarly, XXX. XXXXXX explained during XXX testimony that classroom teachers, in this case, XXX. XXXXX, draft the IEP reading goals, select the different reading programs to be used for a student’s curriculum, administer reading assessments, track a student’s reading progress, and report the gathered information to the parents. 18. Finally, XXX. XXXXXXXX, a Program Specialist for the School Board of Broward County, also agreed that the classroom teacher, XXX. XXXXX, is charged with determining, based on the assessments of XXX students, which instructional methodology would be most effective in meeting a student’s reading needs.

11 19. As all the School Board witnesses agreed, XXX. XXXXX was responsible for teaching the student, tracking XXX reading progress, assessing XXX reading levels, identifying XXX strengths and weaknesses, and developing the reading goals on the IEP. The IEP reading goals were based entirely on the truthfulness of XXX. XXXXX’s records. Since the reading goals were all designed utilizing unreliable information, the design of the IEP as it pertains to the student’s reading needs is by default not calculated to address the student’s actual reading needs. 20. Petitioner also brought forth credible evidence that the student was not provided with sufficient accommodations to decrease XXXXX and XXXXXX XXXXXXXX in the classroom. Again, XXX. XXXXX is the only witness who could testify as to the actual accommodations that were utilized to facilitate the student’s learning. Since XXX testimony is found to be lacking in credibility, the undersigned is not persuaded that necessary accommodations to decrease XXXXXXX and XXXXX XXXXXX were in fact implemented, or that a XXXXX XXXXX was ever employed with fidelity. 21. Based on the evidence, the undersigned is left wondering whether any of the IEP reading goals, which were drafted for the last XXX years based on potentially more false records, were ever designed to meet the educational needs of the student, whether they were faithfully implemented, and whether

12 the reading assessments were true measures of the student’s abilities. Given the lack of credibility of the sole classroom teacher for the last XXXXXX years, the remaining School Board witnesses (who deferred to XXX. XXXXX on all matters of substance) and documentary evidence (authored entirely by XXX. XXXXX, or completed based on XXX direction or XXX input), the evidence in this case is not persuasive and falls short of establishing that the IEP goals were reasonably calculated to meet the reading needs of this student. CONCLUSIONS OF LAW 22. DOAH has jurisdiction over the subject matter of this proceeding and of the parties thereto. See § 1003.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 6A-6.03311(9)(u). 23. Petitioner bears the burden of proof with respect to each of the issues raised herein. Schaffer v. Weast, 546 U.S. 49, 62 (2005)("The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief."). 24. In enacting the IDEA, Congress sought to "ensure that all children with disabilities have available to them a free appropriate public education [FAPE] 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.

13 Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th Cir. 2012). The statute was intended to address the inadequate educational 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 each agency's compliance with the IDEA's procedural and substantive requirements. Doe v. Ala. State Dep't of Educ., 915 F.2d 651, 654 (11th Cir. 1990). 25. Parents and children with disabilities are accorded substantial procedural safeguards to ensure that the purposes of the IDEA are fully realized. Bd. of Educ. 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). 26. In Rowley, the Supreme Court held that a two-part inquiry must be undertaken in determining whether a local school

14 system has provided a child with FAPE. First, it is necessary to examine whether the school system has complied with the IDEA's procedural requirements. Id. at 206-07. A procedural error does not automatically result in a denial of FAPE. G.C. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1270 (11th Cir. 2012). Instead, FAPE is denied only if the procedural flaw impeded the child's right to a FAPE, significantly infringed the parents' opportunity to participate in the decision-making process, or caused an actual deprivation of educational benefits. M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007). 27. To satisfy the IDEA's substantive requirements, school districts must provide all eligible students with a FAPE, which is defined as: [S]pecial 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). 28. The central mechanism by which the IDEA ensures a FAPE for each child is the development and implementation of an IEP. 20 U.S.C. § 1401(9)(D); Sch. Comm. of Burlington v. Dep't of

15 Educ., 471 U.S. 359, 368 (1985) ("The modus operandi of the [IDEA] is the . . . IEP.")(internal quotation marks omitted). The IEP must be developed in accordance with the procedures laid out in the IDEA, and must be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).7/ 29. In assessing an IEP's substantive adequacy, deference should be accorded to the reasonable opinions of the educators. Sch. Dist. of Wisc. Dells v. Z.S., 295 F.3d 671, 676-77 (7th Cir. 2002) ("Administrative law judges . . . who hear IDEA cases are, we grant, specialists . . . and are not required to accept supinely whatever school officials testify to. But they have to give that testimony due weight."). Here, the educators’ opinions were based on XXX. XXXXX’s veracity, and on XXX accuracy in keeping educational records on the student’s progress. Since the records contain false information, and XXX. XXXXX is found to be lacking in credibility, the undersigned gives no weight to the testimony of any of the School Board’s witnesses as to the adequacy of the IEP. 30. Lacking credible evidence based on educator opinion, a student's lack of progress can also be an important factor in determining whether a challenged IEP was reasonably calculated to confer some educational benefit. M.S. v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 326-27 (4th Cir. 2009); see also Lexington Cnty.

16 Sch. Dist. One v. Frazier, 2011 U.S. Dist. LEXIS 107813, *23-24 (D.S.C. Sept. 22, 2011) (citing M.S. for the proposition that "progress or lack thereof" is a factor in determining educational benefit). Here, the student is certainly challenged by XXX XXXXX XXXXXX; however, XXX is teachable, XXX is a hard worker, and XXX does not suffer from an XXXXXXXXX XXXXXXXX. For XXXX years of XXXXX school, with the same ESE teacher for all XXXX years, XXX has essentially remained XXXXXXX in XXX reading progress. 31. Based on the totality of the evidence, the undersigned is not convinced that the reading goals on the IEP were properly designed to meet the student’s educational needs. XXX. XXXXX developed the IEP, and XXX sadly lost XXX credibility when creating false educational records. Absent from this record is independent evidence supporting XXX. XXXXX’s rendition of the student’s reading progress, XXX actual reading abilities, and XXX reading assessment results. The data taken to support the student’s reading needs and reading progress was proven to be false, the teacher’s testimony was not credible, and the student has made XXXXXXXXXXXXX in XXXX years of XXXXXX school. 32. Further, credible testimony was presented by the father and XXX expert witness establishing that the student made XXXX XXXXXXXXXXXXX in reading after XXXX years of XXXXXX school, despite the student’s eagerness to learn, XXX capacity to learn, and XXX work ethic.

17 33. The undersigned also cannot find with any certainty that the student’s XXXXX issues, both XXXXX and XXXXXXX, were properly minimized in order to facilitate reading, given that the only direct evidence establishing that the XXXX XXXX was utilized came from XXX. XXXXX. The XXXXXX’s testimony that the XXXXX issues were never properly addressed is credited as true, and is uncontroverted. 34. The School Board therefore denied this student FAPE for the last XXXX years, and the student is entitled to compensatory education. 35. In calculating an award of compensatory education, the undersigned is guided by Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005), wherein the D.C. Circuit emphasized that IDEA relief depends on equitable considerations, stating, "in every case . . . the inquiry must be fact specific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Id. at 524. The court further observed that its "flexible approach will produce different results in different cases depending on the child's needs." Id. at 524. 36. This qualitative approach has been adopted by the Sixth Circuit and a number of federal district courts. See Bd. of

18 Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) ("We agree with the district court . . . that a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the child's] educational problems successfully.); Petrina W. v. City of Chicago Pub. Sch. Dist., 2009 U.S. Dist. LEXIS 116223, *11 (N.D. Ill. Dec. 10, 2009) ("Because a flexible, individualized approach is more consonant with the aim of the IDEA . . . this Court finds such an approach more persuasive than the Third Circuit's formulaic method"); Draper v. Atlanta Indep. Sch. Sys., 480 F. Supp. 2d 1331, 1352-53 (N.D. Ga. 2007) (holding that, in formulating a compensatory education award, "the Court must consider all relevant factors and use a flexible approach to address the individual child's needs with a qualitative, rather than quantitative focus"), aff'd, 518 F.3d 1275 (11th Cir. 2008); Barr-Rhoderick v. Bd. of Educ., 2006 U.S. Dist. LEXIS 72526, *83-84 (D.N.M. Apr. 3, 2006) (holding that an award of compensatory education "must be specifically tailored" and "cannot be reduced to a simple, hour-for-hour formula"); Sammons v. Polk Cnty. Sch. Bd., 2005 U.S. Dist. LEXIS 45838, *21-22 (M.D. Fla. Oct. 7, 2005) (adopting Reid's qualitative approach). 37. As to how far back in time the undersigned is permitted to award compensatory education, the Court in G.L. v. Ligonier

19 Valley School District Authority, 802 F.3d 601, 620-21 (3d Cir. 2015) explained that 20 U.S.C. § 1415(b)(6)(B) and 20 U.S.C. § 1415(f)(3)(C) create a two-year limitations period for filing a due process complaint from the date a parent knew or should have known of IDEA violation, but that these provisions do not limit the period to be considered for compensatory remedy for cases filed within the limitation period. The Court stated that once a violation is reasonably discovered by the parent, any claim for that violation, however far back it dates, must be filed within two years of the date a parent “knew or should have known” of the violation. If the claim is not filed within those two years, all but the most recent two years before the filing of the complaint will be time-barred. If it is timely filed, then, upon a finding of liability, the entire period of the violation should be remedied. In other words, § 1415(f)(3)(C), like its synopsis in § 1415(b)(6)(B), reflects a traditional statute of limitations. 38. Guided by the above-stated principles, and given that reading skills permeate every academic subject, including mathematics, for every single day of a student’s academic year, Petitioner is entitled to XXXX years of compensatory education, including ESY services. These XXXX years are calculated based on the number of years the student was educated in XXX. XXXXX’s XXXXX classroom, which amounted to XXXX years of XXXXX school. ORDER

20 Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the School Board of Broward County denied this student a FAPE by failing to design an IEP that was reasonably calculated to provide the student with educational benefit; specifically, the IEP failed to address the student’s reading needs. Petitioner is entitled to XXXX years of compensatory education, including ESY services. All other requests for relief are denied. DONE AND ORDERED this 3rd day of August, 2017, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 3rd day of August, 2017. ENDNOTES 1/ During the due process hearing, Petitioner indicated XXX intent to file appendices to XXX proposed order; the undersigned made it clear that additional documentation would not be considered if it was not properly placed into evidence during the course of the due process hearing. (Tr. p.366: lines 4-12).

21 2/ School Board’s Proposed Final Order, p. 24. 3/ Q: So basically [**] reading now barely your XXXXX result at XXXXXXXXXXXXXXXXX and you want [XXX] next year to read at XXX XXXXXXXXXX, is this my understanding real? A: XX don’t know. That’s—-XX wouldn’t have jumped XXX up, that must have been a mistake on my part. XX don’t think XX would have jumped [XXX] a whole XXXXX years being that XX know it took [XXX] XXXXX years to move up one level. Q: Okay. A: So that could have been a mistake which would be very easy to be fixed at the time of the IEP. (Tr. p.82: 12-21) Q: When you measure something, don’t XXX need a baseline? To measure something you need a start point or measure line, right? A: Right. Q: What would your baseline be here? A: My baseline was that on [XXX] grade level that [XXX] only had the XXX grade. I do think that’s a typo either way— Q: Okay. A: --so if it would have been done appropriately, it [the reading goal] would have been XXX grade level with XXXXX percent accuracy. It would have been that [XX] was going to now be able to pass those words on a XXX grade level. (Tr. 83-84: 20-25, 1-10). 4/ Q: With regard to this first annual goal, XXX had previously testified that there was a typo on the grade level based on the XXXXX, XX think it’s XXX grade level, you see that? A: Uh-huh. Right. Q: Can you talk about the data again and see if in fact the XXX grade level is correct? A: XXXXX grade level is correct. XX think it was when XXX were asking me the question, XXX not really sure, XX think XX was answering on the XXX itself. Collaboration of all of this testing would be a target point of XXX grade is where [XXX] –-

22 XXX would make sure [XXX] spelling would be and decoding would be at the XXXX grade. [XXX] spelling, XXX, decoding is XXX grade. Q: So your previous testimony had been that that was a typo, but now based on review of all the assessments—- A: Yeah, it wasn’t just based on the XXXX. If XX was looking just at the XXX, then that would have been a typo, but it’s not a typo. That’s [XXX] level. (Tr. 701-702: 11-25, 1-6). 5/ The School Board did not seek admission of the daily IEP data sheets into evidence, despite having the opportunity to do so when XXX. XXXXX testified. 6/ Petitioner Exhibits A through N. 7/ On March 22, 2017, (after the instant Complaint was filed) the United States Supreme Court readdressed this prong, finding that a school board must offer an IEP that is reasonably calculated to enable a student to make progress appropriate in light of the student’s circumstances. Endrew F. v. Douglas Cty. Sch. Bd., 137 S. Ct. 988, 991 (2017). Given that this is a substantive change to the legal standard, it is not applicable to the instant case, which was filed prior to the decision being issued. Assuming, arguendo, that it is applicable, applying the facts of this case to the Endrew standard would result in the same outcome. 8/ Petitioner also requested that the undersigned find that the XXXXXXXXXXXXXXXXXXXX, one of a handful of programs which was used to instruct the student, is deficient. The undersigned need not reach that issue to resolve this case; however, the undersigned reiterates the well-settled proposition that school districts are granted much leeway in selecting educational methodologies. COPIES FURNISHED: Susan Jane Hofstetter, Esquire School Board of Broward County K. C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed)

23 Petitioner (Address of Record-eServed) Leanne Grillot Department of Education 325 West Gaines Street Tallahassee, Florida 32317 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Floor 10 Fort Lauderdale, Florida 33301-3125 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).