Broward | Case 17-3245 | 2017-09-26

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BROWARD COUNTY SCHOOL BOARD, Petitioner, vs. Case No. 17-3245E **, Respondent. _______________________________/ FINAL ORDER A final hearing was held in this case before Diane Cleavinger, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), on August 31, 2017, in Fort Lauderdale, Florida. APPEARANCES For Petitioner: Susan Jane Hofstetter, Esquire School Board of Broward County K.C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: No Appearance STATEMENT OF THE ISSUES The issues in this case are whether the School Board’s decision to deny the Student a XXXXXXXXXXXXXXXXXX Evaluation and a XXXXXXXXXX Evaluation as Independent Education Evaluations (IEE) at public expense was appropriate and whether Respondent’s request for reevaluation of the Student in the areas of XXXXXXX

2 Impairment, XXXXXXX Functioning, and eligibility for services under the category of XXXXXXXXXXXXXXX should be granted. PRELIMINARY STATEMENT On June 2, 2017, a due process complaint was filed with DOAH by Petitioner Broward County School Board stating that it was seeking consent for the reevaluation of Respondent in the areas of XXXXXXX Impairment, XXXXXXXXX Functioning, and eligibility for exceptional student education (ESE) services under the category of XXXX. Petitioner further asked that Respondent’s request for IEEs in the areas of XXXXXXXXXXXXXXXXX evaluation and XXXXXXXXXXXX evaluation be denied. The complaint was filed because the parent refused to give such consent to any of the above-referenced evaluations. Thereafter, after telephonic discussion with the parties, this matter was set for hearing. The parties were advised both orally and by written Notice of Hearing of the date, time, and location of the hearing. At the hearing, Petitioner presented the testimony of five witnesses and offered 28 exhibits into evidence. Neither Respondent nor Respondent’s parent appeared at the hearing. After the conclusion of the hearing, a discussion with Petitioner regarding the post-hearing schedule occurred. Based on that discussion it was determined that proposed final orders were to be filed on or before September 29, 2017, with the final order to follow by October 30, 2017. On September 5, 2017, an

3 Order Memorializing Deadlines for Proposed Orders and Final Order was issued and provided to both parties. After the hearing, Petitioner filed a Proposed Final Order on September 29, 2017. Respondent did not file a proposed final order. Petitioner’s proposed order was accepted and considered in preparing this Final Order. Additionally, unless otherwise indicated, all rule and statutory references contained in this Final Order are to the version in effect at the time the subject IEPs were drafted. Finally, for stylistic convenience, xxxx pronouns are used in the Final Order when referring to the Student. The XXXX pronouns are neither intended, nor should be interpreted, as a reference to the Student's actual gender. FINDINGS OF FACT 1. The Student was first made eligible for ESE services on XXXXXXXXXXXX, with the eligibilities of XXXXXXXXXXXXXXXXXXXXX (XX) and XXXXXXXXXXXXXXXXX (XX) when XX was XXXX years old. The Student remained eligible for XX and XX through XXXXXXXXX, at which point XXXX eligibilities were discontinued following a reevaluation and the recommendation of the IEP Team. 2. On January 8, 2015, the parent consented to reevaluation of the Student in the areas of XXXXXXX, XXXXXXXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXXX Functioning, XXXXXXXXX Functioning, and/or XXXXXXXXXXXXXXXXXXXXXXXXXXXXX (XXXX). A XXXXXXXXXXXX evaluation

4 of the Student was completed on XXXXXXXXXXXXXX, by school psychologist, XXXXXXXXXXXXXXXXX. In conducting the evaluation, XXXXXXXXXXXXX reviewed the Student’s records; observed the Student at school in a variety of settings; interviewed teachers; interviewed the Student; utilized appropriate, normed, and valid objective rating scales; and projective testing. The evaluation of XXXX met the requirements for evaluations as found in Florida Administrative Code Rule 6A-6.0331(5). 3. A report of the evaluation was finalized on XXXXXXXXXX. The report reflects that the Student did not demonstrate “any significant XXXXXXXX XXXXXXXXXXX that interferes with learning, but that [the Student] does have XXXXXXXX issues which could be eased by increased XXXXXXXXXXXX development and may be related to underlying XXXXXXXXXXXXX and XXXX,” which may stem from changes at home or school. The report further indicated that “[XXXX] XXXXXXXXXXXXXXXXX issues are due to [the Student’s] XXXXXXXXXXXXXXXXXXX, XXXXXXXX XXXXXXXX of early XXXXXXXXXXXX XXXX, changes in home or school environment, XXXXXXXX XXXXXX relationships and XXXXXX XXXXXXXXXX issues that are often found with XXXXXXXXX of XXXXXXXXXXX students.” XXXXXXXXXXXXXX recommended XXXXXXXXX intervention for XXXXXXXXXXXXXX development and positive reinforcement for compliance in the classroom, which recommendations were put into place during the school year. The

5 ZZZZ evaluation covered all the areas of suspected disability at that time. 4. Notably, the school has not conducted a XXXXXXXXXXXXXXXX evaluation of the Student. More importantly, the evidence did not demonstrate the need for a XXXXXXXXXXXXXXXXXXXXX evaluation, since the XXXXXXXXXXXXXXXXXXXX evaluation was sufficient to identify any eligibility or special need required by the Student and because a XXXXXXXXXXXXX evaluation is more closely linked to the educational setting than a XXXXXXXXXXXXXXXXXXX evaluation. At the time, the parents did not disagree with the XXXXXXXXXXXXXX evaluation and did not request an IEE. 5. Additionally, a XXXXXXXXXX evaluation was initiated on May 1, 2015, and completed on May 7, 2015. The XXXXXXXX evaluation met the requirements for such evaluations. The report was finalized on May 11, 2015. Based on these evaluations, the Student was made eligible for ESE services for XXXXXXXXXXXX (XX) and was also designated as “XXXXXXX.” 6. On XXXXXXXXXXXX, an IEP was developed with the input of the parents, which reflected these eligibilities. The parents of the Student agreed with the IEP developed on XXXXXXXXXXXX. The Student’s ESE eligibilities remained the same in 2016 and the parents of the Student agreed with the IEP developed XXXXXX, XXXXX.

6 7. One year after the 2015 evaluation, during the XXXXXX, XXXXX, IEP meeting, the IEP noted per the Student’s teacher that “[the Student] demonstrates age appropriate XXXXXXXX and XXXXXX XXXXXXXX the majority of the time.” Parent input at the meeting was that “[t]his year has been one of the best years for [the Student] at [the Student’s school]” and the evidence showed that the Student’s XXXXXXXX warranting evaluation in 2015 had abated during that year. 8. At the beginning of the XXXXXXXXXXX school year, the Student exhibited XXXXXXXXXXXX, which were typical of XXXXXXX children. These behaviors did not raise any educational concerns or impact the Student and XXX ability to access XXXX education. However, during the second quarter of the 2016-2017 school year, following xxxxxXXXX XXXXX, the Student’s XXXXXXX changed. XX became XXXXXXXX, XXXXXXXX, and had XXXXXXXXXXXXXXXX. XXX behavior resulted in a parent–teacher conference. 9. During the meeting, the Student’s parent discussed the Student’s changed XXXXXXXX and disclosed that there had been some XXXXXXXXXXX over the break, that the Student had been XXXXXXXX XXX long-time XXXXXXX, and that these might be reasons why the Student was acting differently. The Student’s parent indicated that the Student had been XXXXX at XXXXXX and that the Student’s XXXXXXXX at home were XXX or XXXXX than at school.

7 10. Unfortunately, the Student’s XXXXXXXXX increased. Due to the increase, the Student’s teacher reached out to both parents in late XXXXXXXXX to discuss the Student. A meeting was scheduled for the first week in XXXXXXXX, during which meeting the Student’s other parent disclosed that the Student had XXXXXX XXXXXX, was on XXXXXXXXX, had an XXXXXXXXXXXXXX, and also indicated that the Student had a lot of trouble with XXXXXX XXXXXXX, being able to make XXXXXX, and that no one XXXXX XXX. The other parent also indicated that “[the Student] had a history of problems at school and now may be the time to bring information to school.” This information was new to the teacher because XXX had observed that the Student did have ZXXXXXX in the classroom and evidenced XXXXXXXXXXXXX. In response, the teacher placed the Student at the front of the room and let XXX choose a peer buddy to accommodate XXX XXXXXXXXX issues. The teacher also rearranged XXX classroom into desks (it originally had tables) because XXX recognized the Student was more comfortable in a XXXXXXXXXXXXX setting. Another intervention included XXXXXXXXXX the Student from XXX classroom when XX got XXXXXXX. Because the Student did not want to be XXXXXXXXX from XXXX classroom, XXXX XXXXXXXXXX lessened dramatically. 11. In XXXXXXXXXX, the teacher began to collect XXXXXXXXXX data on the Student. Because the Student was XXXXXXXXXX the teacher’s data sheets, XXXX changed the way XXXX collected the

8 data to a XXXXXXX log. According to the teacher, the Student stated, “XX know what you’re doing, they’ve done this before, you can’t XXXXXXXXX XXX, I’m not going to work for this.” XX called the teacher “a weak women.” 12. On XXXXXXXXXXXXXXX, the teacher gave the Student a discipline referral for XXXXXX XXX hands on another child. Following the referral, the other parent stated that there was “more to the XXXXXXXX” for the Student and requested an interim IEP meeting so that accommodations could be put in place. The teacher asked the other parent to clarify the need for accommodations and it was then that the other parent disclosed the Student had a XXXXXXXXXXX of XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXX. 13. At the end of December 2016, and because of the Student’s continuing inappropriate XXXXXXX, the teacher also made a referral to the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (XXXX), to get some feedback from the team about whether the interventions commenced at the end of November were working or should be modified. The XXXXX is a school-based team. It may be comprised of XXXXXXXXXXXXXXXXXXXX, XXXXXXXXXXXX, or XXXXXX XXXXXXXX and includes the parents of a student. The purpose of the team is to provide support and recommendations to teachers in regards to at-risk students. In the case of the Student here, the XXXXXXX consisted of the ESE XXXXXXXX, XXXXXXXXXXXXXXX,

9 school XXXXXXXXXXXX, the teacher, and at least one of the parents. 14. On XXXXXXXXXXXXXXXXXXX, a parent participation form for an interim IEP meeting on XXXXXXXXXXXXX, was sent home to schedule a meeting to discuss the newly divulged XXXX diagnosis and to address the parent’s request for accommodations. Ultimately, the meeting took place on XXXXXXXXXXXXXXX, because the Student’s teacher was out due to a family medical matter and unavailable on XXXXXXXXXXXXXXX. 15. At the XXXXXXXXXXXX meeting, accommodations requested by the parent were added to the IEP to permit the Student to have XXXXXXXXXXXXXXX, XXXXXXXXXXXX, more XXXXXXXXX and XXXXXXX XXXXXXXXXXX in preparation for the upcoming XXXXXXXXXX Standardized Assessment. 16. There was a second meeting of the XXXXX on XXXXXXXXX, XXXXXX, to review the data collected by the teacher. The data collected indicated an improving behavioral trend beginning with the Student having XXXXXXXXXXXXXXXXX XX times an hour at the end of XXXXXXXXX, XXXXXXXX to XXXX times a day by XXXXXX, and further dropping to XXXX XXXXXXXXXX a day by XXXXXX. 17. The teacher continued to collect XXXXXXXXX data on the Student until XXXXXXXXXXXXX, when the Student’s classroom was changed to the other XXXXXX XXXX-grade classroom at the school because one of the parents did not want the teacher to collect

10 data on the Student. The teacher in the other classroom had privately tutored the Student in the past. 18. In the new classroom, the Student sat near the teacher. The Student’s XXXXXXX on most days was fine. However, sometimes XXX XXXXXXXX (XXXXXXXX, XXXXXXXX, XXXXXXXXXXXXXXXXXXXXXX) disrupted XXX peers and only tangentially and minimally impacted the Student’s ability to access XXX education. 19. On XXXXXXXXXXXXXX, the physician-completed XXXXXXXX Evaluation form for XXXXXXXXX Impaired was returned to the Student’s school. Armed with this documentation and information from the XXXXXX, a reevaluation plan meeting was held on XXXXXX, XXXXXXX. At the meeting, the Student’s school sought consent for reevaluation to determine XXX current XXXXX abilities and to determine if dismissal of XXXXXXX services should be recommended. The Student’s school also sought to evaluate the Student for a XXXXXX as a result of the XXXXXXXXX the Student was exhibiting in the classroom and to evaluate for eligibility for XXX because of the recent XXXXX XXXXXXXXXXX. 20. The reevaluation plan meeting was held as scheduled. One parent participated by phone. The other parent did not attend the meeting. The team recommended reevaluations in the areas of XXX, XXXXXXXXXXXXXXXXXXX, and eligibility for ESE services under the category of XXX based on the recently XXXXXXXXXXXXXXXX of XXXX. The evidence showed that reevaluation

11 was necessary because such evaluations would help determine what the needs of the Student were, where XXX classroom behaviors were stemming from, and how the school could best assist XXX in XXX education. All of the recommendations by the team were appropriate for the Student and necessary to provide a free appropriate public education (FAPE) to the Student. 21. Further, the evidence showed that during the XXXXXXXXXX school year, XXXXXXXXXXXXXXXX was the XXXXXX and XXXXXXXX therapist for the school attended by the Student. XXXX had previously conducted the XXXXXXXXXXXXX of the Student. The XXXXXXXXXXXXXX saw the Student weekly to provide XXXXXX services for the XXXXXXXX “X” and “X.” XXXX participated in IEP meetings on XXXXXXXXXXXXXX, and XXXXXXXXXXXXX; a reevaluation plan meeting on XXXXXXXXX; and the annual IEP meeting on XXXXXXXXXXXX, as well as served as the local education agency representative at those meetings. Based on the XXXXXX XXXXXXXXXXX report of successful completion of XXXXXX the team also recommended reevaluation for XX because the Student had achieved XXX XXXXXXXXX goal and was ready for dismissal from XXXXXXXXXXX services. A reevaluation to include formal data evincing the need for such dismissal was needed to document the change in IEP services and, therefore, was necessary under IDEA. 22. The parent agreed that the XXXX eligibility should be pursued but did not want the necessary evaluations done by the

12 School Board because, for reasons not relevant here, the parent did not trust the School Board’s staff. The parent refused consent for any evaluations. On XXXXXXXXXXXX, the Student’s parent requested IEEs for a XXXXXXXXXXXXXXX evaluation and a XXXXXXXXXX evaluation to be conducted by XXXXXXXXXXXX XXXXXXXXXXX, an evaluator that was outside the XXXXXXXXXXX, and XXXXXXXXXXXXXXXXXXXX area and outside the reasonable geographic limitations established by Petitioner for IEEs. On XXXXXXXXXX, the parent’s request for IEEs were reviewed and denied by the School Board. 23. As indicated, an IEP meeting was scheduled for XXXXXX, XXXXX, to address the team’s recommendations for reevaluation, possible XXX eligibility, and possible dismissal from XX. The Student’s parents appeared at the IEP meeting, with one parent physically present at the meeting, and the other parent appearing telephonically. At the meeting, staff tried to explain to the Student’s telephonically present parent the difference between the XXXXXXX IEP meeting and the XXXXXX reevaluation plan meeting. However, the telephonically present parent continued insisting on “evaluations” being completed by the third party the parent desired. The parent who was physically present was willing to move forward with the team’s recommendations, but the Student’s other parent, who appeared by telephone, told the physically present parent to leave and both parents absented themselves from

13 the meeting. As the team was assembled and both parents were provided a reasonable opportunity to participate in the meeting, the IEP meeting continued and developed IEP goals after the Student’s parent left because it was necessary to develop an appropriate IEP for the Student. The eligibilities for XX and XXXXXXX remained on the IEP. Dismissal from XXXXXXX services did not occur because consent to evaluate was not provided by the parent. 24. Because the School Board determined the requested evaluations were necessary, the School Board filed for due process on June 2, 2017, and later the same day, Respondent filed XXXX own request for a due process hearing. 25. In this case, the evidence was clear that the evaluations requested by the School Board are appropriate and necessary for the provision of FAPE to the Student. Given this necessity, the School Board’s request to complete evaluations in the areas of XX, XXXXXXXXXXXXXXX, and eligibility for ESE services under the category of XXX is approved. On the other hand, the evidence demonstrated that no XXXXXXXXXXXXXXXX evaluation of the Student has been completed by the School Board. Because such an evaluation has not been completed and is not necessary for FAPE to be provided to the Student, Respondent is not entitled to an IEE at public expense for a XXXXXXXXXXXXX evaluation. Finally, the evidence showed that the XXXXX

14 XXXXXXXXXXXX evaluation met all the requirements for such evaluations under Florida law, adequately identified the Student’s XXXXXXXXXXX needs, and otherwise made appropriate recommendations regarding those needs, which were effective during XXX education. The evidence did not demonstrate a need for an independent XXXXXXXXXXXX evaluation at public expense. 26. Further, the evidence showed that the School Board has geographical and cost limitations for any evaluation done outside school-contracted staff. Those limitations included that the evaluation be done within the tri-county area (XXXXXXXXXXXX, and XXXXXXXXX counties) and placed spending caps on evaluation costs. The parameters are reasonable limitations under IDEA. There was no evidence of special circumstances requiring the evaluations desired by the parent be conducted outside of school staff or outside the tri-county area. Given these facts, the XXXXXXXXXXXXXXX and XXXXXXXXXXX evaluations requested by the parent are not approved. CONCLUSIONS OF LAW 27. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. § 1003.57(1)(b), Fla. Stat., and Fla. Admin. Code R. 6A-6.03311(9)(u). 28. This case arises under the IDEA, Part B, 20 U.S.C. § 1400, et seq. (2004), and corresponding Florida Statutes and Florida Administrative Code, which require public schools to

15 provide exceptional students FAPE as a condition of receiving federal funds. 29. As the party seeking relief, Petitioner has the burden of proving all elements of its claim. Schaffer ex. rel. Schaffer v. Weast, 126 S. Ct. 528 (2005). See also M.H. v. Broward Co. Sch. Bd., Case No. 03-0621E (Fla. DOAH May 27, 2003 (ALJ Rivas)) (citing Devine v. Indian River Co. Sch. Bd., 121 F.3d 576 (11th Cir. 1997)); J.R. v. Duval Co. Sch. Bd., Case No. 03-1132E (Fla. DOAH June 24, 2003 (ALJ Hood)) (citing Fla. Dept. of Trans. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981)). 30. District school boards are required by the Florida K-20 Education Code to provide for an "appropriate program of special instruction, facilities, and services for exceptional students as prescribed by the State Board of Education as acceptable." §§ 1001.42(4)(l) & 1003.57, Fla. Stat. 31. The Florida K-20 Education Code's imposition of the requirement that exceptional students receive special education and related services is necessary in order for the State of Florida to be eligible to receive federal funding under the IDEA, which mandates, among other things, that participating states ensure, with limited exceptions, that a "free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21." 20 U.S.C.

16 § 1412(a)(1)(A); Phillip C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d 691, 694 (11th Cir. 2012). 32. Under the IDEA and its implementing regulations, a parent of a child with a disability is entitled, under certain circumstances, to obtain an IEE of the child at public expense. The circumstances under which a parent has a right to an IEE at public expense are set forth in 34 C.F.R. § 300.502(b), which provides as follows: Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section. (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either-- (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. (3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

17 (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation. (5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees. 33. Florida law, specifically rule 6A-6.03311(6), provides similarly as follows: (a) A parent of a student with a disability has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. * * * (g) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay either: 1. Ensure that an independent educational evaluation is provided at public expense; or 2. Initiate a due process hearing under this rule to show that its evaluation is appropriate or that the evaluation obtained by the parent did not meet the school district's criteria. If the school district initiates a hearing and the final decision from the hearing is that the district's evaluation is appropriate, then the parent still has a right to an independent

18 educational evaluation, but not at public expense. (h) If a parent requests an independent educational evaluation, the school district may ask the parent to give a reason why he or she objects to the school district's evaluation. However, the explanation by the parent may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the school district's evaluation. (i) A parent is entitled to only one (1) independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. 34. These provisions make clear that a district school board in Florida is not automatically required to provide a publicly funded IEE whenever a parent asks for one. A school board has the option, when presented with such a parental request, to initiate——without unnecessary delay——a due process hearing to demonstrate, by a preponderance of the evidence, that its own evaluation is appropriate. T.P. v. Bryan Cnty. Sch. Dist., 792 F.3d 1284, 1287 n.5 (11th Cir. 2015). If the school board is able to meet its burden and establish the appropriateness of its evaluation, it is relieved of any obligation to provide the requested IEE. 35. Because 34 C.F.R. § 300.502(b) and rule 6A-6.03311(6) require it, on June 2, 2017, the School Board filed a due process

19 request asserting that the Student was not entitled to either a XXXXXXXXXXXXXXX or XXXXXXXXXXXX IEE at public expense and seeking permission to reevaluate the Student in the areas of XX, XXXXXXXXXXXXXXXXX, and eligibility for services under the category of XXX. 36. In that regard, the plain language of these provisions related to IEEs require a predicate evaluation with which to disagree prior to requesting an IEE. There is no right to an independent evaluation at public expense unless the parent disagrees with an evaluation previously obtained by the school board. See G.J. v. Muscogee Cnty. Sch. Dist., 58 IDELR 61 (11th Cir. 2012), which held: Parents have a right, under certain circumstances, “to obtain an independent educational evaluation of the child.” 20 U.S.C. § 1415(b)(1); accord 34 C.F.R. § 300.502. The right to a publicly funded IEE only exists “if the parent disagrees with an evaluation obtained by the public agency.” 34 C.F.R. § 300.502(b)(1). Here, MCSD did not obtain an evaluation with which Plaintiffs disagreed; Plaintiffs refused to consent to the reevaluation. Therefore, Plaintiffs had no right to a publicly funded IEE at the time of their request for one . . . . Though parents have a "right" to a publicly funded IEE under the circumstances discussed above, neither the statute nor the regulations provide for a parental "right" to a privately funded IEE, except if a parent disagrees with the school's evaluation . . . . Again, MCSD did not obtain an evaluation with which Plaintiffs disagreed. Therefore, Plaintiffs had no right to a privately funded IEE at the time of their

20 request for one. The ALJ's decision regarding the IEE is therefore affirmed. See also Krista P. v. Manhattan Sch. Dist., 255 F. Supp. 2d 873, 889 (N.D. Ill. 2003)(“The [ALJ] did not err in ruling that Parents had not met the prerequisite for requesting an IEE. A parent has the right to an IEE at public expense only if the parent disagrees with an evaluation obtained by the public agency”)(internal quotations omitted); see also Sch. Bd. of Manatee Co., Fla. v. L.H., 666 F. Supp. 2d 1285, 1290 (M.D. Fla. 2009)(“Parents of a child with a disability have the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency subject to the conditions set forth in the regulations)(emphasis added); D.Z. v. Bethlehem Area Sch. Dist., 2010 Pa. Commw. LEXIS 438, *38 (Pa. Commw. Ct. July 27, 2010)(“Thus, by the regulation’s XXXXXXXXXXXXXXX, an evaluation must first be obtained by the public agency--in this matter, the School District--before D.Z. is vested with any right to disagree with that evaluation, or to request an IEE in connection with that disagreement.”). 37. In this case, the evidence was clear that no XXXXXXXXXXXXXXX evaluation has ever been conducted by the School Board. Therefore, since no such evaluation has been completed, Respondent is not entitled to a XXXXXXXXXXXXXXX evaluation as an IEE at public expense.

21 38. Further, assuming arguendo that there was an evaluation in existence, no extraordinary circumstances have been provided by Respondent as to why evaluators within the tri-county area are not appropriate and why XXXXXXXXXXXXXXXXXXXXXXX is the only locale appropriate for an IEE. 39. When a request for an IEE is granted, IDEA permits the School Board to set reasonable parameters that can include the evaluation be conducted within a geographic area and placing spending caps on evaluation costs. In this case, the School Board has established such parameters and has restricted evaluations to the tri-county area and placed spending caps on the cost of such evaluations. The parameters are reasonable. Divergence from these restrictions can occur if the person seeking the evaluation can demonstrate unique circumstances and that there are no qualified evaluators within the tri-county area who can perform the evaluation. 40. Unique needs or circumstances would require a departure from a district’s policy with reasonable geographic and cost limitations. See Tomah Area Sch. Dist., 114 LRP 20209 (SEA WI 11/12/04); Letter to Petska, 35 IDELR 191 (OSEP 2001)(stating that if a district believes that the expenses are unreasonable, it must request a due process hearing); see also Utah Schs. for the Deaf and the Blind, 113 LRP 31076 (SEA UT 07/31/13)(holding that the Utah Schools for the Blind and Deaf did not have to pay

22 for a parent and XXXXXXXXXXXXXXX student with XXXXXXX and a XXXXXXXXXXXXXXXXXX to travel to Massachusetts for an IEE. The Utah Education Department concluded that the expense was unnecessary, given that qualified evaluators were available within Utah). 41. In this case, the tri-county area of XXXXXXXXXX, and XXXXXXXXXXX constitute a large metropolitan area with many XXXXXXXX and evaluation facilities. XXXXXXXXXXXX and XXXXX are two major cities within XXX miles of the Student. It is unlikely there are no qualified evaluators within the tri-county area. Moreover, Respondent has not provided any evidence that there are no evaluators within the tri-county area who cannot conduct such an evaluation. Further, Respondent has not demonstrated the need for a departure from the School Board’s reasonable restrictions on evaluations and Respondent’s request for IEEs outside of the tri-county area is denied. 42. Respondent also demands a XXXXXXXXXXXXX evaluation as an IEE conducted at XXXXXXXXXXXXXXX at public expense. However, the evidence demonstrated that the School Board’s XXXXXX XXXXXXXXXXX evaluation was appropriate and met the criteria detailed in rule 6A-6.0331(5). Moreover, the evaluations conducted by Petitioner in 2015 identified all the areas of suspected disabilities at the time. Since the XXXXXXXXXXXXXX

23 evaluation was appropriate, Respondent’s request for a XXXXXXXXXXX IEE is denied. 43. The Student now has a suspected disability of XXX, based upon the XXXXX documentation provided to the school. Petitioner appropriately wanted to evaluate the Student in this newly identified area. The parents, however, refused consent for evaluation in this area of concern because of their desire that such an evaluation be done at XXXXXXXXXXXXXXXXXXX. The parents demand was not reasonable under the facts of this case. 44. Further, reevaluations are an important educational planning tool and may not occur more than once a year and not less than every three years. See 34 C.F.R. § 300.303. Specifically, schools must ensure reevaluation “if the public agency determines that the educational or related service’s needs, including improved academic achievement and functional performance, of the child warrant a reevaluation.” See 34 C.F.R. § 300.303(a)(1); See also 20 U.S.C. § 1414(a)(2). 45. Informed parental consent prior to conducting any reevaluation of a student with a disability is required. 34 C.F.R. § 300.303(c). If the parent refuses consent, as in this case, the school district may pursue reevaluation by using the consent override provisions of mediation or due process. 34 C.F.R. § 300.303(d); See also Fla. Admin. Code R. 6A- 6.0331(7).

24 46. In this case, reevaluation was proposed by the School Board because: 1) the educators at the Student’s school had data that supported XXX dismissal from XXXXXXX services; 2) current school year XXXXXXXXX data indicated a need for a XXXXXXXXXXX XXXXXXXXXX and/or a XXXX; and 3) an ZZZZ XXXXXXXXXX from a XXXXXXXX practitioner had been provided which required consideration for an XXXX eligibility. 47. In that regard, the evidence was clear that the Student made significant strides in XXX XXXXXX goals and that the Student no longer needed XXXXXXXX services. Reevaluation was required and being sought to determine whether XXXX XXXXXXX services were still required or whether the Student no longer needed such services. See 34 C.F.R. § 300.305(e); see also Lakeview Pub. Sch., 115 LRP 52589 (SEA MI 2014))(citing S. Pasadena Unified Sch. Dist., 58 IDELR 120 (SEA CA 2011)); Connecticut Technical High Sch. Servs., 112 LRP 49055 (SEA CT 2012); and Victor Elementary Sch. Dist, 50 IDELR 204 (SEA CA 2008). 48. In this case, the evidence also demonstrated that the Student’s XXXXXXXX took a dramatic turn upon XXX return from XXXXXXXXXXXX break. Prior to this date, the school managed any XXXXXXXX XXXXXXXXX with the result that the Student was successful in the classroom. 49. Additionally, the evidence demonstrated that the Student now has a suspected disability of XXX, based upon the

25 XXXXX documentation provided to the school, and has engaged in XXXXXXXXX which have prompted the educators at the school to conclude a XXXXX would be appropriate at this juncture to identify the cause of the noted XXXXXXXX and to help the Student in the educational setting. The Student’s XXXXXXXXXXX, coupled with XXX XXXX XXXXXXXXXXX, justified the School Board’s seeking consent for reevaluation. Moreover, failure to evaluate a child’s current XXXXXXXXXX needs may amount to a failure to provide FAPE. West-Linn Wilsonville Sch. Dist. v. Student, 63 IDELR 251 (D. Ore. 2014). 50. In the instant case, the Student’s school has made accommodations for the Student during an IEP meeting, has done interventions in the classroom, and has not changed XXX placement. However, it now seeks consent to reevaluate to ensure that all XXXX XXXXXXXXXXXX needs are met and appropriate academic planning may proceed, so that XXX IEP continues to provide FAPE. 51. As noted on the IEP developed on XXXXXXXXXXX, “[The Student] can choose appropriate skills, gets along with peers and adults and respects authority . . . . There are days when [the Student] has difficulty XXXXXXXXX with XXX peers, at times perceives as if they are XXXXXXXXXXX XXX or XXXXXXXX XXX. When [the Student] is XXXXX it is hard to XXXXXXXXX XXX . . . .” 52. Reevaluation is the tool which would assist the school to identify from where the Student’s current XXXXXXXXXX are

26 XXXXXXX, i.e. whether it was the result of the XXXXXXXX over XXXXXXXXXXX break or some other event, and to put in place formal XXXXXXXXXX interventions, if needed. See K.K. v. State of Hawaii, Dep’t of Educ., 115 LRP 34824 (D. Hawaii 2015). Moreover, reevaluation is necessary and appropriate pursuant to rule 6A-6.0331(7): (a) A school district must ensure that a reevaluation of each student with a disability is conducted in accordance with Rules 6A-6.03011-.0361, F.A.C., if the school district determines that the educational or related service’s needs, including improved academic achievement and functional performance, of the Student warrant a reevaluation or if the Student’s parent or teacher requests a reevaluation. 53. Therefore, given the facts of this case, the evidence established that consent for reevaluation of the Student in the areas of XXX and XXXXXXXXXXXXXXXXX, and for consideration of XXX over Respondent’s refusal to give such consent should be granted. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: 1. The School Board’s request for reevaluation in the areas of XXXXXXXXXXXXX, XXXXXXXXXXXXXXXXXX, and eligibility for Services under the category of XXXXXXXXXXXXXX is granted. 2. Respondent’s request for XXXXXXXXXXXXXXXXXX and XXXXXXXXXXXXXX IEEs is denied.

27 DONE AND ORDERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 26th day of October, 2017. 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) Leanne Grillot Department of Education 325 West Gaines Street Tallahassee, Florida 32317 (eServed) Respondent (Address of Record-eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street

28 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).